FOIPPA Analysis: Stepping Away from an Evidence-Based Public Health Policy and the Precautionary Principle during the Time of Omicron: Did the Ontario Government Fail to Consider the Potential Harms to Highly COVID-19-Vulnerable Ontarians?”
Below is a letter sent to the Chief Commissioner of the Ontario Human Rights Commission (OHRC) in reference to my brief (link): Stepping Away from an Evidence…
Please consider signing the petition for a Section 31 OHRC Inquiry into the Ontario COVID-19 public health response in 2022. We must learn from the missteps of the Ford government and improve health outcomes for Code-protected Ontarians, who are highly vulnerable to severe COVID-19 illness and future infectious disease pandemics.
Letter to the Chief Commissioner
June 13, 2023
TO: Hon. Patricia DeGuire
Chief Commissioner
Ontario Human Rights Commissioner
Via Email
RE: Office of the Chief Medical Officer of Health (OCMOH) FOIPPA Document Release — August 2022 withdrawal of Ontario COVID-19 Public Health Measures in 2022
A. Attached Report: “Stepping Away from an Evidence-Based Public Health Policy and the Precautionary Principle during the Time of Omicron: Did the Ontario Government Fail to Consider the Potential Harms to Highly COVID-19-Vulnerable Ontarians?”
B. Consideration for an Inquiry by the OHRC, per Ontario Human Rights Code R.S.O. 1990 c.H.19, Section 31 (“OHRC”) regarding changes to Ontario COVID-19 Public Health Guidance announced by the Chief Medical Officer of Health, Dr. Kieran Moore, on August 31, 2022, and earlier.
Dear Chief Commissioner,
Attached please find a copy of my brief which includes 29 documents provided by the OCMOH in response to an October 2022 FOIPPA request for all the scientific evidence the CMOH relied upon to relax isolation requirements for infectious COVID-19 persons, including any evidence that suggested relaxing mask mandates, focusing on one-way masking (i.e. primarily of highly vulnerable persons, often Code-protected), was a safe approach. The premise of my request: IF there were significant additional risks posed to vulnerable persons by permitting infectious people into the community wearing any mask (with mask mandates removed) then the Ontario government had a duty to inform those at-risk persons and explain: 1) Who is at increased risk of severe COVID-19 illness, 2) How might they best protect themselves, 3) Provide them with appropriate equity measures such as free respirators (N95/KN95) given that the most vulnerable amongst us often have little means to purchase high-quality masks. 4) Re-introduce mask mandates where ventilation is especially poor such as public transit.
I performed a careful review of all 29 documents, contrasted them with the scientific evidence available at the time, and interviewed the one expert the OCMOH implied it had consulted prior to reducing isolation requirements contrary to the recommendations by the Centres for Disease Control and Prevention and the Public Health Agency of Canada.
Throughout 2022, the SARS-CoV-2 Omicron variants were identified as significantly more transmissible (contagious), more immune evasive (less vaccine protection against infection among the vaccinated or previously infected), and occurring among a population with waning population immunity (more than 6 months since prior booster). The bivalent vaccines that covered the Omicron variants weren’t available until the fall. The reoccurring theme in 2022 was one of pleas by Senior Public Health scientists & experts, for stronger measures, including the recommendation of N95/KN95 masks as the preferred mask for community members, by the MOH Director of Health Research, Evaluation and Analysis, Strategic Management and Policy Branch in January 2022. Her recommendation and the accompanying evidence brief never made it to the public eye with the CMOH and the VP of Public Health Ontario citing concerns with her recommendation as not being consistent with messaging. ( ie., they had not been recommended previously).
Senior Public Health Ontario scientists, via detailed research analyses, Members of the Ontario COVID-19 Science Table, and at least three Medical Officers of Health recommended more stringent public health measures throughout 2022 including the resumption of mask mandates. The Deputy Chief of Health Protection, Public Health Ontario, Emily Karas warned of increasing evidence of immune dysregulation posed by the novel coronavirus and the risks posed by public transportation where ventilation is poor. Issues related to equity, public health ethics and the significant impact on vulnerable populations including marginalized Code-protected populations were raised by medical officers of health and Dr. Jessica Hopkins, Chief Health Protection and Emergency Preparedness Officer, Public Health Ontario. The fall of 2022 saw the worst paediatric critical care crisis since the polio epidemic of the 1940–50s, largely from unusually severe RSV, influenza, streptococcal and COVID-19 infections. It is now widely accepted that immune dysregulation from COVID-19 infections among children, the majority lacking a primary series of vaccinations, was a significant factor. Only 37% of children ages 5–11 had completed a primary series of COVID-19 vaccination prior to school in the fall of 2022.
The Ontario government seemingly ignored multiple calls for stronger public health measures and relaxed public health measures through the most lethal year of the pandemic. Absent was any evidence that the OCMOH actively consulted with experts in immunology, vaccine science, or infectious diseases, or otherwise considered the increased risks posed to vulnerable, Code-protected Ontarians. This is in direct conflict with the precautionary principle so lauded in the SARS Commission Interim and Final reports and contrary to the OHRC Policy on COVID-19 Recovery Planning. The CMOH had a duty to ensure the removal of public health measures did not disadvantage COVID-19 vulnerable, Code-Protected Individuals: “Under human rights law, all levels of government have obligations to make sure individuals receive equal benefit from public programs and are not subject to unequal burdens.”
Therefore, after review of the FOI release, it is my opinion that this government was at least obliged to: (a) Inform vulnerable persons of the additional risks posed to them by the withdrawal of mask mandates, the shortened isolation period, the permission of individuals shedding virus while wearing any mask into the community (unlike a respirator per CDC and PHAC guidance), and (b) Obliged to provide reasonable mitigation strategies including the clear communication of who was at greatest risk, providing a means to access respirators without charge, providing priority testing and access to anti-viral therapies, re-instituting select mask mandates where ventilation was extremely poor (such as public transit, classrooms etc.)
Given this government followed what I believe was an irresponsible public health strategy that was contrary to the OHRC Policy on COVID-19 Recovery Planning, and contrary to the advice of Senior Public Health Ontario leaders, Medical Officers of Health, and at least one MOH Director, I am requesting the OHRC re-consider a September 2022 request for an Inquiry by the OHRC, per Ontario Human Rights Code R.S.O. 1990 c.H.19, Section 31 (“OHRC”) regarding changes to Ontario COVID19 Public Health Guidance announced by the Chief Medical Officer of Health, Dr. Kieran Moore, August 31, 2022 (and earlier), on behalf of the hundreds of thousands of Code-protected, COVID-19 vulnerable Ontarians including seniors, immunocompromised persons, pregnant persons, organ transplant recipients, cancer patients, persons on immunosuppressant therapy and Code-protected individuals who were and are at increased risk of COVID-19 illness due to described socioeconomic factors such as visible minorities, the impoverished, persons with disabilities, and people living in high density housing. An inquiry would provide the proper format to garner facts and evidence to improve future public health responses for all Code-protected Ontarians. The next global pandemic may be sooner than not since H5N1 has already spread from birds to multiple mammalian species. The case fatality rate from H5N1 influenza among humans is about 50%. Public health ethics and equity must formulate future public health policy. Ventilation and filtration standards must be considered for those who live in low-income, high-density housing where this pandemic was felt severely. Together, we can work to improve the health outcomes of all Ontarians, especially Code-protected Ontarians at increased risk of infectious airborne pathogens.
Thank you for considering my request. I hope you find the brief helpful. These comments are my own.
Respectfully,
Christopher Leighton MD, FRCPC
