Saturday, September 29, 2007

Goudge Inquiry Faces Legal Challenge;

The College of Physicians and Surgeons of Ontario is challenging the Inquiry's summons to produce "copies of complaint files and systemic documents."

According to a note recently published on the Inquiry's Web-site, the College is concerned that release of the documents would violate the confidentiality provisions set out in Section 36 of the Regulated Health Professions Act.

Oral submissions are to be heard by the inquiry on Thursday October 4, based, in part, on written submissions to be filed by the lawyers for the College and for Doctor Smith.

Dr. Charles Smith was the subject of three complaints to the College which is the governing body of the medical profession in Ontario.

The three complainants were initially denied satisfaction after a College complaint's committee ruled that it had no jurisdiction over Dr. Smith saying, Dr. Smith's involvement was underaken as an agent of the Chief Coroner's office.

However, they complainants appealed the Committee's ruling to the Health Professions Appeal and Review Board.

On Feb. 3, 2000, the Review Board sent the complaints back to the Complaints Committee, on the basis that, "while there may be overlap with regard to Dr. Smith's accountability to both the Coroner's office and the College, the involvement of the Coroner's Office does not displace the College's responsibility to govern its members."

The three Review Board members noted in their 6-page decision that one of the complainants was informed by letter that, "on March 10, 1998, the College received correspondence from the Chief Coroner stating his posiion that the College had no jurisdiction to investigate the conduct of a physician who was fulfilling a function as a representative of the Coroner, and the Committee directed that the issue be raised with the College's Executive Committee for clarification of the College's policy on the issue."

After a panel of independent experts reviewed the evidence, the Complaints Committee, ordered Dr. Smith to attend in person before the College to receive a "caution" after ruling in all three cases that, "the Committee is extremely disturbed by the deficiencies in his (Smith's) approach..."

"A caution in person is a serious outcome for members of the medical profession," the Complaints Committee ruled in all three cases. "It is a tangible symbol of the disapproval of one's peers and a sharp reminder about the need for improvement in future practice."

Transcripts of Thursdays hearing are expected to be posted on the Inquiry's Web-site the next day.

Harold Levy

Goudge Inquiry: No public hearings until Nov. 12;

The Goudge Inquiry has announced that public hearings will commence on November 12, 2007.

Commissioner Stephen Goudge's mandate is to conduct: "a systemic review and assessment and report on:

the policies, procedures, practices, accountability and oversight mechanisms, quality control measures and institutional arrangements of pediatric forensic pathology in Ontario from 1981 to 2001 as they relate to its practice and use in investigations and criminal proceedings;

the legislative and regulatory provisions in existence that related to, or had implications for, the practice of pediatric forensic pathology in Ontario between 1981 to 2001;

and any changes to the items referenced in the above two paragraphs, subsequent to 2001
in order to make recommendations to restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings.

But two factors would appear to severely limit the time that the Inquiry will have to fulfil this mandate A break will be taken between December 21, 2007, and January 7, 2008 - and Commissioner Stephen Goudge is required to deliver his report to the government no later than April 25, 2008.

That means there is less than six weeks available for the calling of evidence before the Christmas break - and less than four months available for the remainder of the evidence and preparation of the Commissioner's report.

The brief time available for the public sessions may well reflect the limitations placed on the Inquiry by Attorney General Michael Bryant.

For a start, the terms of reference specify that, "In fulfilling its mandate, the Commission shall not report on any individual cases that are, have been, or may be subject to a criminal investigation or proceeding.

Moreover, Goudge must fulfil his mandate, "without expressing any conclusion or recommendation regarding professional discipline matters involving any person or the civil or criminal liability of any person or organization."

There's more.

Goudge is required, to rely "wherever possible" on "representative witnesses on behalf of institutions", and he must consider relying on "overview reports" and "records" from the Chief Coroner's review which prompted calls for a public inquiry , "in lieu of calling witnesses."

He is also spared the the time-consuming task of having to consider the issue of compensating
individuals who claim that they have suffered harm as a result of Dr. Smith's investigations and opinions - meaning that compensation swill have to dealt with at another time and in another forum.

Limitations aside, the Goudge Inquiry is an unusual public inquiry because it has incorporated a private process.

A note on the Commission's Web-site indicates that following Goudge's opening statement "members of the Commission met privately with individuals or families affected by practices in Ontario's pediatric forensic pathology system between 1981 and 2001. "

But the note indicates that the meetings were not part of the formal hearing process, they will not form a basis for fact-finding, and "There are no transcripts of the meetings."

Harold Levy

Wednesday, September 26, 2007

"Fall from Grace": An insightful documentary;

The CBC's insightful documentary on Charles Smith, aptly entitled "Fall From Grace" was broadcast on the National on Sept. 4, 2007.

Produced by Anita Mielewczyk and hosted by Maureen Taylor, "Fall From Grace" set out to answer the question "How and why did Ontario pathologist Dr. Charles Smith prepare autopsies that wrongly implicated at least twelve parents in the deaths of their children. Taylor gives her personal perspective in a fascinating "field note" published on the National's Web site.

"Dr. Charles Smith remains an enigma," Taylor says.

"Of course, we set out to delve right into his innermost thoughts, to understand what motivated him as he pursued people he thought were child abusers, with sometimes tragic consequences.
What we have, are clues.

With painstaking research by producer, Anita Mielewczyk, we were able to piece together Dr. Smith's career as a pathologist. For me, the most surprising information Anita uncovered was Dr. Smith's link to the infamous murder investigations in 1981 at the Hospital for Sick Children, where Nurse Susan Nelles was wrongfully accused of killing 4 babies with an overdose of a heart drug.

These were among the first autopsies Dr. Smith ever performed, and although there is no evidence that his work was anything but professional, it does make one wonder how that experience may have shaped his approach to suspicious deaths over the next 26 years.

We always strive for balance in these stories. Families who were wrongly accused because of Dr. Smith's reports are critical of those at the Chief Coroner's Office who were supervising Smith. They want answers, accountability. Perhaps they'll get those answers at the public inquiry the Ontario government has called.

Unfortunately, our requests for interviews with the people at the coroner's office were turned down.

Above all, when I heard the pain in the voices of the parents who had been wrongly accused of killing their children, based on evidence from Charles Smith, I realized how important it is not to rush to judgement.

There is a reason our justice system is based on the principle of innocent until proven guilty. Even those in positions of power, knowledge and authority, can still get it very, very wrong."

Harold levy

Saturday, September 22, 2007

Sick Kids Denied Funding by Goudge Inquiry

Commissioner Stephen Goudge's decision to deny the Hospital for Sick Children's request for funding appears to have gone quite unnoticed.

In a decision released on August 17, 2007, Goudge granted the hospital standing at the Inquiry on the basis that, "Many of the post mortem examinations that gave rise to the establishment of the Commission were performed at the OPFPU (Ontario Pediatric Forensic Pathology Unit).
In light of the direct involvement of (the hospital) and its personnel in pediatric forensic pathology in Ontario, there is no doubt that it should be accorded standing."

The hospital argued that it should receive funding for its expenses at the Inquiry as its involvement in the Commission had come about because of its cooperation with the Chief Coroner's Office over the years to serve the public interest and the needs of Ontario.

But Goudge denied funding after noting that the Chief Coroner's Office had given hospital an annual grant for its services, "so that (the hospital) has not had to expense significant health care dollars to assist (the coroners office);"

Goudge also rejected the hospital's argument that unless it received funding it would have to spend significant health care dollars to assist the Chief Coroner's Office.

"On the record before me, (the hospital) has not established that it cannot participate in the Inquiry without funding," he said.

However, Goudge added that, "it seems to me that (the hospital) may well have a moral claim on the province, both because of the genesis of its need to participate in the Commission and because it would be unfortunate if its delivery of health care suffered as a result."

Harold Levy;;