Social Policy in Ontario

The Ontario Motherisk Commission’s two-year effort to repair the damage to families ripped apart by flawed drug and alcohol testing has produced sweeping recommendations aimed at preventing a similar tragedy, but in only a handful of cases has it reunited parents with their lost children.

Alice, a Hamilton mother whose daughter was apprehended in 2011 after hair testing from Motherisk purported to show she was a heavy drinker, is among the lucky few.

After the commission’s review of her case determined the Motherisk testing played a significant role in the decision to remove her child, she was able to overturn a Crown wardship order.

Her daughter, now 13, came home last summer.

“It was extremely emotional,” said Alice, whose name has been changed to protect the identity of her daughter.

“She was so tall,” she said, tears welling in her eyes. “I remember her as a little girl.”

Alice’s case is among 56 that the commission identified in which families were “broken apart” because of flawed testing at the Hospital for Sick Children’s Motherisk lab, according to the final report released Monday. It came after a review of nearly 1,300 cases. So far, children have been returned to their parents in only four instances.

“Even in cases where the impact of the testing was substantial, the people affected have only a remote chance of achieving a satisfactory legal remedy,” commissioner Judith Beaman told a press conference. “This was deeply troubling to us.”

Beaman’s remarks focused primarily on the systemic failings in child protection services and the courts that allowed Motherisk’s flawed testing to taint thousands of child protection proceedings for more than 20 years, which she described in her report as “manifestly unfair and harmful.”

“The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process of their rights to privacy and bodily integrity,” the report states. “Most of the parents who were tested were powerless to resist. They told us that they submitted to the testing under duress, in fear of losing custody of or access to their children.”

Beaman was joined Monday by Children and Youth Services Minister Michael Coteau and Attorney General Yasir Naqvi, who accepted her 32 recommendations on behalf of the province. The recommendations include extending counselling services for affected families for three more years.

“What happened to the children and families impacted by the flawed Motherisk hair testing was heartbreaking,” Naqvi said.

For the first time, Naqvi opened the door to compensation for affected families. This was not part of the commission’s mandate to consider, but he said it could be put to the task force he and Coteau vowed to create to guide next steps.

“It’s a question that we need to address and we need to look at,” Naqvi said. “We have not made any decisions at the moment in terms of what the path forward will be as it relates to compensation.”

As the Star has reported, Motherisk’s discredited hair testing influenced at least eight criminal cases and thousands of child protection cases across the country, beginning in the 1990s. Sick Kids made millions from the hair tests, purchased by more than 100 child welfare providers in five provinces, which relied on the results primarily as proof of parental substance abuse.

Beaman found that Motherisk’s testing disproportionately affected Indigenous families, who were involved in nearly 15 per cent of the 1,291 cases the commission reviewed. Indigenous individuals make up less than 3 per cent of Ontario’s population.

The commission was established on the recommendation of former justice Susan Lang, whose independent review of Motherisk concluded in December 2015 that the testing was “inadequate and unreliable” for use in child protection and criminal proceedings. Beaman, also a retired judge, was appointed under the Public Inquiries Act to probe 25 years of child protection cases in Ontario involving Motherisk’s flawed hair tests.

Armed with a $10-million budget and a two-year mandate, Beaman was tasked with identifying child protection cases in Ontario in which Motherisk’s tests played a significant role in decisions to remove children from their families. The commission was also mandated to provide counselling and legal assistance to families and, where possible, to facilitate reunification.

Beaman’s recommendations span 17 government agencies and professional bodies. They call for amendments to legislation and rules governing the use of expert evidence in child protection, enhanced education for judges and strengthened representation for parents — changes she said are intended to “help ensure that no family suffers a similar injustice in the future.” They include:

• Requiring children’s aid societies to obtain valid written consent “in every situation where a parent is asked to provide a bodily sample,” and requiring courts to ensure this consent has been given.

• Requiring that scientific test results used in child protection proceedings be accompanied by a report from an expert explaining the meaning of the result and the underlying science.

• Expanding legal aid funding in child protection cases involving expert evidence, and providing funding for social workers to assist parents’ lawyers.

• Developing more substance use treatment programs that are “family-inclusive,” and ongoing education for child protection workers about “substance use issues and their impact on parenting.”

• Continuing legal education for lawyers on child welfare and at least one course on child welfare in law schools.

• Funding from the federal government for First Nations band representatives to participate in child protection proceedings.

Determining the role Motherisk’s evidence played in child protection cases is inherently difficult because it often involves untangling a variety of factors that influence decisions — such as domestic violence, mental health issues and neglect — as Beaman noted in her report.

The exercise is further complicated by the fact that Motherisk’s testing was deemed unreliable but not necessarily inaccurate, and since the lab did not retain samples for future testing, there is no way to fully exonerate affected parents. Furthermore, once finalized, adoptions are virtually impossible to overturn, because the courts place tremendous weight on the best interests of the child.

“This means that even where the discredited Motherisk testing substantially affected the outcome of cases, the families will likely have difficulty bringing about a change in the children’s situations,” Beaman wrote. “These cases are likely to be very difficult and stressful to litigate and challenging for the courts to consider.”

Toronto lawyer Sarah Clarke is representing four parents and one grandparent who have been identified by the commission as having a possible legal remedy.

“I can’t imagine what it would be like for the adoptive parents. What do you do? These are your children,” she said. “The problem is (the biological parents) are also their parents, so it’s really, really tricky.”

“People don’t understand … the messiness of Motherisk. It doesn’t just impact the biological parents’ life. It doesn’t just impact the child. It impacts every single person who cares about that child.”

Governments in New Brunswick, Nova Scotia and British Columbia have also launched reviews of affected child protection cases, but so far Ontario is the only province to establish an independent process and provide a framework for counselling and legal support.

However, the Motherisk Commission has drawn criticism from some affected parents who say they were excluded from the review process, which has failed to facilitate the reunions many were hoping for.

Heather, an Ontario mother, lost her two young daughters after positive cocaine hair testing from Motherisk, despite producing dozens of clean urine tests before her 2009 trial. She received a letter from the commission in April 2016 indicating that Motherisk testing played a significant role in the decision to remove her kids, but the adoptive parents have not yet indicated that they are willing to participate in mediation, which the commission is offering to fund as an alternative to a court challenge.

She said on Monday she feels let down by the commission, which prioritized finding systemic changes over repairing the damage done to victims through public hearings.

“Given what they did to me and my family, I think we were entitled to that public inquiry,” she said. “I think all the things that went wrong in my case should have been acknowledged and it should have been geared towards the victims. Isn’t that what this is about?”

Heather also expressed concern about the letter Beaman is placing in the children’s aid society files in all the cases the commission reviewed, which is addressed to the children involved, apologizing for the Motherisk scandal.

According to a sample letter in the report, children in significant cases will be told: “I am very sorry to give you this information and realize you may find it upsetting, but I thought you may want to know about this part of your history.”

The sample letter also says, “We reached out to your biological mother and father to offer them information and support.”

Heather worries about the effect of language that is vague “and introduces ambiguity where there actually is none.”

(Heather, not her real name, is among three mothers who launched an unsuccessful application for judicial review of the commission in 2016.)

Sick Kids has never released comprehensive, cross-country numbers, but Lang’s review found that 16,000 individuals had their hair tested at the request of Ontario child welfare agencies from 2005 to 2015 alone. Roughly 54 per cent of those tests were positive for drugs or alcohol.

In her report, Beaman said the commission “made every effort to identify and review all of the cases involving Motherisk testing where children were permanently removed from their families and were still under the age of 18.”

But the provincial advocate for children and youth, Irwin Elman, said on Monday that the commission should have reviewed every case where children were brought into care, regardless of their age.

“It’s a huge task and it’s a very difficult task … but that was the task in front of the province,” he said. “I feel like the commission did some good work and I’m thankful for the recommendations, but I worry still about what we haven’t done.”

The Motherisk scandal began in late 2014, when criticism of the reliability of the lab’s hair testing results in a 2009 criminal case, involving a Toronto mother who was sent to jail for feeding her toddler cocaine, prompted the Court of Appeal to overturn her drug-related convictions. After a series of stories in the Star revealed that Motherisk had not used a gold-standard test to verify its results from 2005 to 2010, contrary to international forensic standards, the province appointed Lang to review the reliability of five years of testing.

For months, Sick Kids vigorously defended Motherisk. Hospital executives said they had “full confidence in the reliability of Motherisk’s hair testing” and continued to allow the lab to test samples for child welfare agencies.

But during Lang’s review, in March 2015, Sick Kids suspended hair testing at Motherisk, after learning it had been misled about external proficiency testing it had previously cited as proof that the lab’s results could be trusted. The lab was closed for good the next month.

Lang’s mandate was expanded in April 2015, doubling the period under scrutiny to cover 2005 to 2015. Her blistering report on Motherisk chronicled a litany of failings at the once-revered lab. She said the use of Motherisk’s “hair testing evidence in child protection and criminal cases has serious implications for the fairness of those proceedings and warrants an additional review.”

Lang also lambasted Sick Kids for failing to learn from the lessons of a public inquiry in 2007 and 2008 into the mistakes of disgraced Sick Kids pediatric forensic pathologist Charles Smith, whose flawed autopsy analyses tainted more than a dozen cases. The Smith scandal also involved marginalized parents, flawed forensic evidence and families torn apart.

On Monday, Mary Ballantyne, CEO of the Ontario Association of Children’s Aid Societies, applauded the commission for recommending changes to the child welfare system and the courts in the wake of the Motherisk scandal, but said the role of Sick Kids was downplayed.

“I think (Beaman) missed a body of people, of which Sick Kids would have been one, but there are other health experts as well — psychologists, psychiatrists, addictions experts — who are called upon regularly to assess families and then provide evidence,” she said.

Sick Kids issued a public apology for the Motherisk scandal in October 2015. Spokesperson Matet Nebres reiterated that apology in an email on Monday, adding that Sick Kids “has received the report and we will be reviewing its findings and recommendations.”

“We have learned from these events which we know have shaken the public’s trust and are committed to applying the lessons broadly with safe, high-quality and effective practices being our highest priority,” she said.

The hospital, along with Motherisk’s founder and former director, Dr. Gideon Koren, and lab manager Joey Gareri, have been named as defendants in a series of lawsuits involving at least 328 plaintiffs. A proposed class action suit, which sought compensation for 10,000 people across Canada, was rejected by a Toronto judge last fall, but the plaintiff is appealing that decision.

Koren retired from Sick Kids during the scandal in June 2015. He is now working for a health-care company in Israel and still speaks at medical conferences around the world. Although it no longer includes a hair testing lab, the Motherisk Program, which Koren created at Sick Kids in 1985 to provide drug-safety advice to pregnant and lactating women, is still operational.

https://www.thestar.com/news/gta/2018/02/26/motherisk-tests-unfair-and-harmful-to-families-in-child-protection-cases.html