COVID-19 Factsheet
Accessing Critical Care in Hospitals during the COVID-19 Pandemic
April 19, 2021
disponible en français
available in plain language
55 University Avenue, 15th Floor, Toronto, ON, M5J 2H7
Tel.: 416-482-8255 or 1-866-482-2724
TTY: 416-482-1254 or 1-866-482-2728
www.archdisabilitylaw.ca

This Factsheet provides legal information and advocacy tips to people with disabilities who require critical health care in Ontario during the COVID-19 pandemic. 
This Factsheet contains information about laws and policies in Ontario. This legal information may not apply to you if you live outside of Ontario.
DISCLAIMER: The information provided in these materials is not intended to be legal advice. Consult a lawyer or legal worker if you need legal advice on a specific matter. This information is current as of April 19, 2021.
Please note that the information in this Factsheet does not apply to all situations. A person’s accommodation needs may vary over time and at different points in the day. Always ask the person with the disability how to most appropriately accommodate them.
© ARCH Disability Law Centre, 2021

2020
Purpose of this Factsheet
The purpose of this Factsheet is to share important information about accessing critical care in hospitals during the COVID-19 pandemic in Ontario. 

The COVID-19 pandemic has caused many people to need healthcare in hospitals. If too many people need critical life-saving care, there may not be enough hospital beds, doctors, nurses, and other equipment to care for everyone.  Whether people are sick with COVID-19 or with something else, this means that not everyone will be able to get critical life-saving care. The Government of Ontario is working on a plan for doctors to decide who will get life-saving critical care and who will not if Ontario hospitals no longer have enough resources to provide everyone with critical care that needs it. The Government of Ontario has not yet said that doctors need to start making these decisions. 

It is important to know as much information as possible to be prepared in case you need to go to the hospital. Some of the information is changing very quickly and some of the information is not certain. This Factsheet will share the information about what we know, as of the date of publication, and identify the information that we do not know. As well, you will find legal information and advocacy tips that may help you if you have to go to the hospital. 

What We Know: 
If the Government says that doctors have to make decisions about who gets critical care and who does not get critical care, this is called Triage. To help the doctors make the decisions, the Government asked a group of people, called the Bioethics Table, to make recommendations about tools that could help doctors make difficult decisions about who gets critical care. There have been a number of different documents that were developed. Most recently, the document that we have become aware of that describes how to triage is called the Adult Critical Care Clinical Emergency Standard of Care for Major Surge, dated January 13, 2021.  You can find this document by going to this link:  

https://mcusercontent.com/353019c4e982ae7eb8ea53150/files/0b377f78-011f-4d01-8b99-a8535dff2f43/Triage_protocol.pdf

The purpose of all of the tools developed is to help doctors make difficult decisions about who gets care and who does not.

However, many human rights experts have argued that these tools discriminate against people with disabilities. The human rights experts also say that the tools are problematic because they were not created in consultation with persons with disabilities. Human rights experts say these tools allow doctors to make improper value assessments about the worth of a person’s life.

For more information about ARCH’s work on advocating for tools and plans that do not discriminate against persons with disabilities, go to: https://archdisabilitylaw.ca/covid/

Information We Do Not Yet Know: 
•	We do not know when the Government will tell the doctors to use these tools.
•	We do not know which tool the Government will tell the doctors to use.
•	We do not know if the Bioethics Table or the Government has made new versions of these tools.
•	We do not know if you will have a say in whether you will get critical care if you have to go to the hospital.

Legal Information:
Disability-related accommodations

As a person with a disability, you have a right to equal access to health care.  Ontario law says that people with disabilities have a right to accessible health care services, unless it would cause undue hardship. Undue hardship means that the accommodation creates a real risk to health and safety. 

Each person with a disability will need different accommodations to make hospital services accessible to them. Types of accommodations may include:
•	support person, attendant or communication assistant;
•	an interpreter;
•	large print forms.

Hospital visitation bans may prevent you from having your support person come to the hospital with you. These bans are safety measures to limit the spread of COVID-19. 

In that situation, the hospital would need to offer an alternate accommodation that meets the person’s disability-related needs as much as possible. Some Ontario hospitals have made exceptions to visitation bans to accommodate a disability in a safe manner that did not cause undue hardship.

For more information about getting accommodations when you are in the hospital during the COVID-19 pandemic, you can review ARCH’s Advocacy Toolkit called Advocating for Your Support Person, Attendant or Communication Assistant to be with You in Hospital During the COVID-19 Pandemic, by going to this link: 

https://archdisabilitylaw.ca/resource/advocacy-toolkit-advocating-for-your-support-person-attendant-or-communication-assistant-to-be-with-you-in-hospital-during-the-covid-19-pandemic/

For the plain language version, go to: https://archdisabilitylaw.ca/resource/advocating-for-your-support-person-or-attendant-to-be-with-you-in-hospital-during-the-covid-19-pandemic/

Consent to health care treatment and decision-making
Under the Health Care Consent Act you have the right to consent to the type of care you receive at the hospital, including withdrawal of critical care.
If you are not able to make your own health care decisions in the hospital, then Ontario law says that another person will make those decisions for you. This other person could be a family member, your Power of Attorney for Personal Care or a Guardian of the Person.
If you or your family disagrees with your doctor’s plan of care, your doctor must apply to the Consent and Capacity Board for direction on how to proceed.
How does this impact me?
If you are receiving critical care at the hospital and your doctor wants to remove critical care:
•	Your decision-maker will need to consent to having the care removed;
•	If they do not consent, then the doctor can make an application to the Consent and Capacity Board to ask for direction about whether the doctor can remove your care; and
•	The Consent and Capacity Board may decide that your care should be removed.
If your doctor does not have enough critical care resources to give you, you do not have a right to demand that you get care.

Transferring to a different hospital
If you are at the hospital, it is possible that you may be transferred to another hospital. If there is not enough critical care for all the patients, the hospital is permitted to transfer you to a different hospital. The Government has made new rules in response to COVID-19 that allows the hospital to do this without your consent or the consent of your decision-maker. You can view the new law called an Order in Council by going to this link:
https://files.ontario.ca/solgen_oreg272-21_2021-04-09.pdf

How does this impact me? 
The new rules say that the doctor should try to speak with you, your support person or decision-maker before moving you to a different hospital, but they are not required to do this. It is a good idea for you to keep the contact information of your support person or decision-maker close by.
Advocacy Tips:
If you need to go to the hospital because you are sick and need critical care, here are some things you can do. You may need to ask for help or support to get some of these things done.
If possible, get prepared. Before going to hospital or as soon as you can:  
•	Write a letter or record a video about your wishes for care. This will help your family member, your Power of Attorney for Personal Care or a Guardian of the Person convey your wishes when needed if you are unable to do so. 
•	Write a letter or record a video about what accommodations you need. Explain that you have disabilities and you need accommodations and explain what those accommodations are. Explain what they will do to help you get health care services from the hospital, or why you will not be able to get health care services without them. 
•	Get a letter from your family doctor or specialist. The letter should say what disabilities you have, what accommodations you need while you are in hospital, and why these accommodations are absolutely necessary. 
•	If possible, make a few copies of the letter from your doctor and your own letter or video. If you can, get them laminated or put them into a plastic sleeve or another covering. If you have a smart phone or tablet, you could also save the letters there. You may want to give a copy to your support person, attendant or communication assistant, if you have one.
•	Many organizations have developed forms to give information about a person’s support needs to hospitals. You can fill out the form. Or you can look at the form and decide which things in it are important and relevant for you. You can use the form to help you write your own letter or make your own video. Here are some examples of forms: 
o	“Communication Passport” developed by Communication Disabilities Access Canada: https://www.cdacanada.com/wp-content/uploads/2020/03/COVID-Communication-Toolkit-1.pdf
o	“COVID-19 Hospital Transfer Form” developed by Surrey Place and the Centre for Addiction and Mental Health for caregivers of people with intellectual and developmental disabilities: https://ddprimarycare.surreyplace.ca/
•	Pack a small emergency bag with things that you might need while you are in hospital. Leave the bag near your front door. Make sure the letters and/or video are inside. You could also include a list of important contact information you might need, as well as a photo of yourself.  
When you are at the hospital:
•	Share your letters and/or video with your doctor and nurses so that they know about your wishes. 
•	If you need a support person with you in the hospital, ask for an exemption to the visitation ban. Tell the hospital staff that you need your support person, attendant or communication assistant to be with you. Show them the letter from your doctor and the letter or video you created. Explain that your support person, attendant or communication assistant is not a visitor, they are an essential accommodation for your disability. 
•	If the hospital staff refuse, ask to speak with the nurse or doctor who is in charge of the department or floor you are on. 
•	If the answer is still no, ask to speak with the hospital’s accessibility coordinator, patient relations coordinator, patient ombudsman, and/or patient advocate. 
•	Keep the letter from your doctor and the letter or video you created close by. If the hospital changes its visitation ban rules or if you get moved from one department or floor to another, you may need to advocate again to have your support person, attendant or communication assistant go with you. 
•	Confirm that the contact information for your support person, family member, and/or substitute decision-maker is made available to hospital staff. It is important that they have accurate contact information if you will be transferred to a different hospital. 

Contact ARCH:
•	If you are a person with a disability living in Ontario and you need legal advice, you can call ARCH for free, confidential summary legal advice legal information, and referrals. 
Telephone: 416-482-8255 
Tel. Toll-free: 1-866-482-2724
Email: archintake@lao.on.ca 
https://archdisabilitylaw.ca/services/legal-services/