PETITION: Disability Alliance BC Calls for Transparency in BC’s Ventilator Allocation Framework

We are concerned that BC’s policy for who gets ventilators does not take human rights and equity principles into account. BC has not released its policy about this, and we think they should.

BACKGROUND

In 2020, DABC learned that the BC Ministry of Health had developed a draft framework for allocating ventilators and other critical life-saving medical equipment if demand for those resources surged beyond their supply. In other words, if we were to run out of ventilators, who would decide who gets to use what we have, and who does not, and how would that decision be made?

We believe it is in the public’s interest to know what is in the draft framework and to be allowed to provide comment and feedback.

Also in 2020, DABC became aware of serious human rights concerns raised by disability and human rights advocates in response to a draft critical care triage protocol created by the Ontario Ministry of Health which was circulated to hospitals. ARCH Disability Law Centre submitted an Open Letter to Government on needed changes to that protocol, signed by 204 organizations, and 4,828 individuals.

DABC expressed our concerns in a public letter to Minister of Health Adrian Dix on April 8, 2020. In particular, we made the following statements:

  • People with disabilities must not be deprioritized for critical care based on their disabilities, or on the supports they receive for daily living.
  • Decisions about who receives critical care should be made using objective clinical criteria directly associated with mortality risks and must not be based on stereotypes or assumptions about a person’s disability and longer-term mortality rates.
  • Some people with disabilities need accommodation and assistance. The fact that a person requires such support should not be a factor in decisions about whether they should receive critical care. These kinds of criteria are discriminatory and devalue the lives of people with disabilities.

A copy of this letter can be seen here. DABC did not receive any framework in response to our open letter.

In response to ARCH’s open letter, the government of Ontario facilitated significant consultation with human rights experts and disability rights advocates. The Critical Care Triage framework was revised multiple times to incorporate recommendations such as expanding the guiding ethical principles to include equality and respect for human rights, and transparency and accountability in decision-making.

In May 2020, DABC submitted a Freedom of Information request to BC’s Ministry of Health to access the Ventilator Allocation Framework in its final or draft form. In 2022, we updated our request for the same information.

Over two years after our initial request, we received a set of documents representing nearly 1,400 pages of information. No frameworks were included in the records DABC received, with the Ministry claiming several exemptions to DABC’s public right of access.

We have made a complaint and are proceeding to formal inquiry at the Office of the Information and Privacy Commissioner of BC. The inquiry process is ongoing.

CALL TO ACTION

We believe it is in the public interest to know what is in the Draft Ventilator Allocation Framework and to be allowed to provide feedback. If you also believe it is in the public interest to know what is in the framework and to be allowed to provide feedback, we urge you to click on the link below to sign this statement:

https://win.newmode.net/disabilityalliancebc/dabccallsfortransparencyinventilatorallocationframework

We, the undersigned, share grave concerns regarding BC Ministry of Health’s Draft Ventilator Allocation Framework, which has yet to be released to the public. We write in particular to underscore the disproportionate and adverse impact that the Draft Ventilator Allocation Framework could have on people with disabilities, and the need to ensure the framework properly respects the human rights of all people in British Columbia. We believe it is in the public interest to know what is in the Draft Framework and to be allowed to provide feedback.

With your contribution in signing this petition, DABC hopes to demonstrate that there is public interest in having the Draft Ventilator Allocation Framework made available for public consultation.

Organizations are also welcome to sign on to this petition separately, and will be listed on this page to mark their public support.

List of Signatory Organizations:

  • Centre for Family Equity
  • VRS Communities
  • Canadian Drug Policy Coalition
  • BC Poverty Reduction Coalition
  • Victoria Disability Resource Centre
  • Qmunity
  • Plan Institute
  • Planned Lifetime Advocacy Network
  • UNITI
  • Wavefront Centre for Communication Accessibility
  • Qmunity

TIMELINE

More details about the process we have engaged in so far are included below.

The Freedom of Information and Protection of Privacy Act (FIPPA) process:

May 19, 2020: We sent a request to the Ministry of Health for the following (“FOI Request #1”):

Copy of the provincial ventilator allocation framework and any other policy related to how ventilators and other life-saving and sustaining medical resources may be allocated in the event that demand for those resources exceeds supply. I am also seeking any and all records related to the development and drafting of any such framework or policy. (Date Range for Record Search: From 1/1/2012 To 5/18/2020)

May 2, 2022: The Ministry provided records that were almost entirely redacted, to the point that we could not make sense of them. We were told that various documents had been withheld pursuant to the following exceptions outlined in the Freedom of Information and Protection of Privacy Act (FIPPA):

  • Policy advice or recommendations (s 13)
  • Legal Advice (s 14)
  • Disclosure harmful to law enforcement (s 15)
  • Disclosure harmful to intergovernmental relations or negotiations (s 16)
  • Disclosure harmful to the financial or economic interests of a public body (s 17)
  • Disclosure harmful to personal privacy (s 22)

When the provincial government releases records pursuant to a Freedom of Information and Protection of Privacy Act request, those records are typically then posted on the “Open Information” page: Open information – Province of British Columbia (gov.bc.ca).

Contrary to normal practice, the records that were released to us were not released on this page.

Based on what little we could see in the redacted documents, it appeared to us that a draft framework had been prepared in 2012 but that draft had never been finalized. We were not able to see the content of the draft framework, as it was redacted.

May 31, 2022: We filed a request to the Office of the Information and Privacy Commissioner for BC (“OIPC”) to review the response we had been provided.

December 14, 2022: An OIPC investigator was assigned to conduct a mediation of our request for review.

February 2023: Through conversations with the OIPC officer assigned to review our case we indicated that if we received an unredacted version of the 2012 draft Ventilator Allocation Framework, we would withdraw our request for review.

February 15, 2023: The Ministry wrote to us following our request to have their response reviewed. They provided no additional information, but informed us that additional exceptions were required where information was already withheld.

March 7, 2023: We heard from the OIPC that the Ministry had advised that the 2012 Ventilator Allocation Framework was in draft form and was slated to go before cabinet so could not be released to us in unredacted form. We informed the OIPC we wished the matter to proceed to an inquiry.

March 17, 2023: We informed the OIPC that we wanted to focus the inquiry on two specific documents: the 2012 ventilator allocation framework, and the draft ventilator allocation framework given to Dr. Bonnie Henry on April 30, 2020, which had been fully redacted when released to us.

March 29, 2023: We received the Investigator’s Fact Report from the OIPC Investigator.

June 16, 2023: The OIPC informed us that the review period for our file had been extended to facilitate an inquiry.

November 16, 2023: We received notice from the OIPC that they would be holding a written inquiry to determine whether the Ministry was authorized to refuse to disclose the information at issue under ss. 13, 14, and 17 of FIPPA.

November 30, 2023: We requested that the OIPC inquiry process consider not only whether the Ministry was authorized to refuse to disclose the information at issue, but also

(1) whether it had met its obligations to assist the application under s 6 of FIPPA (“Duty to Assist Applicants”), and

(2) whether it was required to disclose the information at issue under s 25 of FIPPA (“Information Must be Disclosed if it is in the Public Interest”)

December 7, 2023: The Ministry objected to adding s 6 and s 25 to the inquiry process and requested that we provide detailed reasons for adding these sections to the inquiry so that they could respond.

February 26, 2024: We provided detailed reasons for adding s 6 and s 25 to the inquiry.

We argued that it was clearly in the public interest to know how limited life-saving and life-sustaining resources were allocated in the past and would be allocated in the event of another pandemic. We also said the requested information would contribute to educating the public and particularly people with disabilities about the risks they will likely face in the event of another public health emergency

March 12, 2024: The Ministry responded to our detailed reasons of February 26.

April 10, 2024: The Office of the Information and Privacy Commissioner for BC issued a decision regarding our request to add s 6 and s 25 to the inquiry. They declined to allow us to add s 6 to the inquiry. They allowed s 25 to be added to the inquiry.

April 11, 2024: The Ministry confirmed that some of the records they had withheld included an April 28, 2020 Draft Emergency Triage in a Pandemic Ventilator Allocation Framework.

June 11, 2024: The OIPC issue a new Notice of Inquiry clarifying the new issues. The inquiry was now proceeding to determine whether the public body:

(1) is required to refuse to disclose the information at issue under s. 12(1) FIPPA (“Cabinet and local body confidences”);

(2) is authorized to refuse to disclose the information at issue under ss. 13 (“Policy advice or recommendations”), 14 (“legal advice”), 17(1)(c) and (d) (“Disclosure harmful to the financial or economic interests of a public body”) of FIPPA;

(3) The adjudicator will consider the applicant’s assertion that section 25(1) (“Information Must be Disclosed if it is in the Public Interest”) requires the disclosure of information, clearly in the public interest, in the records responsive to the applicant’s requests.

August 23, 2024: The Ministry wrote a letter saying that an additional exception was required on information that was already withheld. Section 12 (“Cabinet and local body confidences) was added to the relevant pages. It also indicated that all severance done pursuant to section 17  (“Disclosure harmful to the financial or economic interests of a public body”) had been removed. Most of the information severed under section 17 was now severed under section 12 or section 13. Section 13 (“Policy advice or recommendations”) severance had been removed on some documents and replaced with section 12. We also received the Ministry’s inquiry submissions on August 23. The submissions defend the Ministry’s severance of the documents, but do not explain why documents previously severable due to section 17 are now severable due to section 13 or 12. The Ministry has submitted that sharing the draft frameworks is not in the public interest because British Columbia has not come close to a healthcare surge that has required a ventilator allocation framework to be implemented.

The Second FOI Request

After making our request in May 2020 and not receiving any substantive documents, we made a second request in March 2023 (“FOI Request #2”). We assumed that any drafts that were in effect in May 2020 could have been revised or finalized in the intervening period and we wanted to make a request that would give us access to those revised and/or finalized policies.

Note: there is overlap in the timelines of FOI Requests #1 and #2.

March 23, 2023: We made a second request for information seeking updated information (“FOI Request #2”). The text of our request was:

For the period of May 19, 2020-March 22, 2023 I am requesting:

  1. A copy of the current provincial ventilator allocation framework and
  2. Any current policy related to how ventilators and other life-saving and – sustaining medical resources may be allocated in the event that demand for those resources exceeds supply.

According to FIPPA the Ministry has a deadline of 30 days to respond to a request.

The Ministry made three requests for extensions to this timeline, resulting in a deadline of August 2, 2024 to provide the documents.

December 22, 2023: The Ministry released the requested documents to us.

A copy of what was provided to us can be seen here: Catalogue details page – Province of British Columbia (gov.bc.ca)

We were informed that some of the information had been withheld pursuant to the below sections of FIPPA:

  • section(s) 12 (“Cabinet and local body confidences”),
  • s 13 (“Policy advice or recommendations”),
  • s 14 (“Legal Advice”), and
  • s 17 (“Disclosure harmful to the financial or economic interests of a public body”)

The file released to us was 3 pages long. There are two sets of records referred to within those three pages. One of these is 174 pages (Set A).  The other is 31 pages (Set B).

With respect to Set A, we received part of p. 142 of 174. It appears to be the cover page of the Province’s Emergency Triage in Pandemic Ventilator Allocation Framework.  It is dated April 28/20 and marked DRAFT. Some information of the cover page has been redacted per ss.13, 14, and 17 of FOIPPA.  We did not receive any other pages in Set A.

The entirety of each page of Set B has been withheld per ss. 12 and 13.

February 6, 2024: We made a request to the OIPC to review the Ministry’s release of information to us, saying that we:

  • did not believe that the Ministry had met its obligations under s 4(2) (”Information rights”), 6(1) (“Duty to assist applicants”), 8 (“Contents of response”) or 10 (“Extending the time limit for responding”) of FIPPA;
  • the sections the Ministry had cited permitting them to withhold records did not justify the complete redaction of such a large portion of the records requested, and
  • did not believe that the head of the public body had met its obligations under s 25(1) of FIPPA (“Information must be disclosed if in the public interest”)

April 26, 2024: We received confirmation from the OIPC that they had opened a file to review our complaint that the public body did not disclose records in the public interest, pursuant to s 25 of FIPPA.

July 5, 2024: The OIPC assigned an investigator to review our complaints.

The investigation process is ongoing.

DABC Statement on DTES Forced Displacement 

Disability Alliance BC’s mission is to support people with all disabilities to live with dignity, independence, and as equal and full participants in the community. This includes meeting people where they are at, at any stage of their life, regardless of social or economic status, race, gender, and sexuality. This includes people who are housed, unhoused, transient, or at risk of being unhoused. 

With costs of living skyrocketing in BC, and many people with disabilities unable to work and/or unable to afford stable shelter, a lot of people with disabilities end up unhoused. This results in the development of encampments —commonly known as tent cities—such as the encampments seen in the Downtown East Side in Vancouver. The reliance on these tent cities to live safely is a clear human rights issue, as every individual has the right to safe housing. It is also reflective of the failure of the BC and Canadian governments to effectively implement the right to housing for all. 

However, for unhoused individuals, living in community spaces like tent cities is often safer than living on their own. There is less risk of fire, possessions being tampered with or thrown away, and less risk of overdose through drug use as a result of neighbouring together with a structure of community care.  There can also be a higher risk of violence for people with disabilities, which makes living in community even more vital.  

In light of the recent forced displacement through the decampment of houseless people in the Downtown Eastside (DTES), DABC openly opposes the action taken by the City of Vancouver. This action further enacts the systemic violence that unhoused people and people with disabilities face and increases the human rights issue surrounding tent cities in Canada.  

While the City states they refer unhoused people to shelters, Vancouver shelters all report being over-capacity and are unable to take on the individuals who were displaced by decampment efforts. Safety is also cited as a reason for decampment; however, breaking down the communities formed in tent cities leaves unhoused people at greater risk. The impact of this action – as seen through the past decade of decampment efforts – only results in more violence against equity-deserving groups in BC. 

Foremost, DABC advocates for safe, affordable and accessible housing for people with disabilities. Decampment efforts are not the solution and DABC stands with those facing discrimination and violence from the forced displacement in the DTES this April. 

Article: DABC Supports Challenge to Mental Health Act

This article was written by Andrew Robb, and originally appeared in the edition of DABC’s Transition magazine, Dying for Health Care: Navigating An Ableist System (Fall/Winter 2022). Read the issue here.

If you’re interested in contributing to Transition as an individual or an organization, please email transition@disabilityalliancebc.org


On June 23, 2022, the Supreme Court of Canada released a decision finding that the Council of Canadians with Disabilities (CCD) has public interest standing to challenge parts of BC’s Mental Health Act (MHA) because it violates Canada’s Charter of Rights and Freedoms.

The Attorney General of BC had argued that CCD was not entitled to public interest standing, unless there was an individual co-plaintiff who had been directly affected by the MHA.

This decision is part of CCD’s ongoing challenge to laws regarding involuntary psychiatric treatment. CCD says the MHA violates the Charter and the courts should force the government to change it.

BC is the only place in Canada where patients with involuntary status, including people detained in psychiatric facilities, are “deemed” to consent to all forms of psychiatric treatment, without safeguards.

For example, under the MHA, a patient can be forcibly administered psychotropic medications and electroconvulsive therapy, without consent from the patient or their legal guardians or family members.

The issue before the Supreme Court of Canada was a procedural question about whether CCD would be allowed to bring the case forward at all, without an individual co-plaintiff. The Supreme Court of Canada did not consider whether the MHA violates the Charter. That issue will now be decided by the BC Supreme Court.

The Supreme Court of Canada’s decision is very important to CCD and people in BC who are detained under the MHA. It means CCD’s legal challenge to the MHA can continue, but the legal process takes a long time; it may be years before the courts make a final decision about whether the MHA must be changed. The Supreme Court of Canada’s decision will also set a precedent that will be helpful to other groups who want to challenge discriminatory and other unconstitutional laws in court.

CCD is a national organization of people with disabilities working for an accessible and inclusive Canada. Disability Alliance BC is a member organization.

DABC staff assisted the CCD committee that works with CCD’s pro bono lawyers. We are proud to play a role in this important case.

Andrew Robb is staff lawyer with DABC’s Disability Law Clinic.