Up-Date: Expert Evidence; Part Three: Research Questions Whether Forensic Unit Once Headed By Smith Should Remain At Sick Kids;

"IN ADDITION TO AN ABSENCE OF MEANINGFUL OVERSIGHT, THE INTEGRATION OF THE (UNIT) WITHIN THE PEDIATRIC PATHOLOGY UNIT AT THE HOSPITAL FOR SICK CHILDREN(INCLUDING INTERACTION WITH THE SUSPECTED CHILD ABUSE AND NEGLECT (SCAN) TEAM) MAY HAVE CREATED A PARTICULAR KIND OF INSTITUTIONAL CULTURE THAT CONTRIBUTED TO THE “THINK DIRTY” ETHOS, DISCUSSED IN OTHER RESEARCH CONDUCTED FOR THIS INQUIRY,"

PROFESSOR LORNE SOSSIN IN RESEARCH PAPER PREPARED FOR THE GOUDGE INQUIRY;

Ontario's Pediatric Forensic Pathology Unit, once headed by Dr. Charles Smith, risks being tainted by its proximity to the Hospital for Sick Children's Sick Children's Suspected Child Abuse and Neglect (SCAN) team, a researcher suggests.

University of Toronto law professor Lorne Sossin, recommends that Ontario should rethink retention of the Unit at the (Hospital) in a paper commissioned by the Goudge Inquiry entitled, "oversight and accountability." (The paper is posted on the Inquiry's Web-site;)

"In addition to an absence of meaningful oversight, the integration of the (Unit) within the pediatric pathology unit at the Hospital for Sick Children(including interaction with the Suspected Child Abuse and Neglect (SCAN) team) may have created a particular kind of institutional culture that contributed to the “think dirty” ethos, discussed in other research conducted for this Inquiry," writes Sossin;

"While there may have been good reasons to establish the (Unit) and locate it in (the Hospital) the viability and desirability of this arrangement continuing should be the subject of further study."

This Bloggist focused this issue in a previous posting entitled "A glimpse of understanding: Part Three; A dangerous mix: Dr Charles Smith and the Hospital for Sick Children SCAN team." (Jan, 2, 2008;"

"In two recent recent postings I have linked Dr. Charles Smith's ability to have such a disastrous effect on Ontario's criminal justice system directly to the decision to appoint him to head the new Ontario Forensic Pediatric Pathology Unit which would be located at the Hospital for Sick Children in Ontario. (A glimmer of understanding; Parts One and Two);" the Blog began.

"One of the unfortunate by-products of this decision is that Smith would have increased influence with the Hospital for Sick Children's Suspected Child Abuse and Neglect (SCAN) Program," it continued.

"Smith, as director of the new prestigious new unit, and the hospital's SCAN unit would prove to be a dangerous mix.

Hospital literature described the SCAN Program as "a hospital-based, multidisciplinary team that offers care, support, and assessment to children and adolescents who may have been abused."

However, as a criminal lawyer, and Editor of the Criminal Lawyers Association Newsletter, In the 1980's I began hearing stories which indicated that the team had a propensity for turning tragic but innocent situations into criminal assaults.

In 1985, I learned about a case which confirmed my worse fears about the program - and wrote bout the case in the Toronto Star, under a headline that read: "They were caring parents, not child abusers"

"Sometimes, people acting with the best of intentions end up achieving the worst possible result," the story began.

"Such was the case in a recent dispute involving a northern Ontario couple and the Catholic Children's Aid Society of Metro Toronto.

The couple were plunged into a nightmare in which they were branded as child abusers of their then one-year-old son and had both of their children taken from them.

In fact, as later became clear when the case landed in court, their son, Tyler,
suffered from a rare bone disease and hadn't been abused at all.

After it became evident that Tyler wasn't developing properly and x-rays had revealed some bone lesions, his parents, whose identity cannot be published, asked their family physician in Elliot Lake to refer the child to Toronto's Hospital for Sick Children for examination by specialists.

But they returned home disappointed, early in January, 1985, as the hospital was unable to pinpoint the disease.

They were unaware that the head of the radiology department had concluded
that the x-rays "were suggestive of child abuse."

They were also unaware that a hospital child abuse team had met in their absence and had asked the medical staff to have the couple return to the hospital with both of their children.

On their arrival, officials of the Metro Children's Aid Society were waiting to "apprehend" both children under a law that permits children at "substantial risk" to be taken from their parents, pending a court hearing.

Bewildered, they returned alone to Elliot Lake to discover that their nightmare had only just begun.

The radiologist's diagnosis that the x-rays were "suggestive" of child abuse had mushroomed into the conclusion by a member of the abuse team that there was "a clear possibility of child abuse."

And the Metro Catholic Children's Aid Society, which had taken over the case, was planning to place Tyler in a foster home and the other child with his natural father.

This move was blocked following the intervention of a lawyer and a private social worker retained by the parents. That led to the children's placement with grandparents.

But the parents couldn't persuade the society to take further steps to find out what was wrong with Tyler, even though a renowned bone disease expert in California had concluded, after viewing the x-rays from the Hospital for Sick Children, that the
lesions were more consistent with bone disease than with fracture.

The expert had suggested to the hospital that certain tests should be carried out, but the hospital declined to perform these particular tests.

The parents were then forced to go to court on April, 22, 1986, to free Tyler so that he could be taken to California, partially at their own expense, and with the help of OHIP, for testing and diagnosis.

After a four-day hearing contested by the society, Family Court Judge Peter Nasmith granted the parents' application and made the decision that led to the proof that Tyler was a sick child, not an abused one, and that the parents were caring human
beings and not child abusers.

The California doctor confirmed his original diagnosis, and after doctors at an Ottawa hospital provided additional confirmation, the society finally withdrew the application to make the boy a crown ward.

What went wrong?

The key is provided by Judge Nasmith's comments at the hearing, where he took the unusual step of telling the society to pay costs to the parents for the legal proceedings.

Having concluded that, "the medical evidence was inconclusive and any evidence of possible abuse was of a very unreliable nature," and noting the difficulties the society faced because of the number of agencies involved and the fact that it was
"obviously influenced (perhaps controlled) by the child abuse team at the Hospital for Sick Children," the judge said: "The fact remains that there was embarrassingly little effort to follow up on what had become a devastating allegation . . . I
think the position (the society) took was unreasonable and even arbitrary."

As to the heart of the problem, Judge Nasmith said: "No doubt the real fly in the ointment here is the child abuse team at the Hospital for Sick Children as they moved from a position of possible abuse to a diagnosis of abuse. This was a surprising stance for them to take, and I think it underlines the need for
a protection agency receiving reports under (child) protection legislation and for courts in these cases to continue to scrutinize the zeal of the well-meaning people who are so understandably devoted to fighting the scourge that is child abuse. This zeal has created a subtle dynamic that can somehow convert a suspicion of child abuse into a presumption of child abuse."

One can sympathize with children's aid societies because of the heavy pressures they face and their dilemma when confronted by complex medical information provided by experts.

But Nasmith's ruling spells out the high standards to be expected of them, and of the experts involved in the medical and social investigation of child abuse, because of the awesome legal and persuasive powers that they possess.

If Tyler's parents hadn't had sufficient commitment and ability - and the support of OHIP, the Ontario Legal Aid Plan, and a dedicated lawyer - what would the situation be now? Sound familiar?

The dangerous mix between Dr. Charles Smith and the Hospital for Sick Children SCAN team was all too apparent in a case before the Inquiry which I have been referring to as "the Timmin's case" in previous postings.

The case is the subject of a court decision released by Provincial Court Judge Patrick Dunn on July 25, 1991, the year the Ontario Forensic Pediatric Pathology Unit was formed and several years after the Nasmith decision. (Dr. Smith had been at the hospital since 1981);

As Dunn noted: "I am not the only person who believed (the babysitter). The Community believed her too until the Crown's shaking theory surfaced. When first presented, the Crown's case appeared quite plausible. But after the evidence of the defence experts (Dr. Smith and the Hospital for Sick Children SCAN team) it is riddled with reasonable doubts."Why would the babysitter shake Amber to death?

"Dr. Smith suggested by way of provocation that perhaps Amber was a "bear", like his son, when she woke up," Dunn wrote in his powerful 24-page judgment which resonates to this very day.

"In other words, that the child would be provocative by her irritable manner. This is not true on the facts and it was unfair to suggest the possibility because there was no basis for it."

(Dunn also ruled that, "I cannot find that (The Hospital for Sick Children) properly considered the relationship between the Babysitter and Amber or Amber's gentle and non-provocative disposition," as he blasted both Smith and the SCAN team for failing to obtain "a complete and accurate psycho-social history" - even though they new "the importance" of having it.")

I don't propose to dwell on the details case as I have previously addressed it in several postings on this Blog.

Suffice it to point out for now that Dunn expressed, "serious concerns about the manner in which certain physicians at the Hospital for Sick Children ... formulated their diagnosis." (Dunn stressed that wherever the evidence of the SCAN team members clashed with the defence witnesses, "I prefer to accept the evidence of the defence experts."

Dunn stressed that there were flaws in the Hospital for Sick Children approach - "and hence their opinion about shaking should not be given great weight.

"I am not talking now about whether shaking exists or whether it or some other mechanism killed Amber," he explained."

"I mean that the fact gathering process, the communication procedures, and the documentation of the Hospital for Sick Children doctors, involved in this case are such that I am led to question the conclusion they drew, based on the facts as these erstwhile and well-meaning doctors understood them."

Similar comments were made about Dr. Charles Smith's work by the independent reviewers who studied so many of his cases.

A very dangerous mix indeed."

Sossin makes a compelling argument for removing the Unit from the Hospital - which in this Blogster's view has not demonstrated over many years that it deserves the public trust.

This is yet another tough bullet for Commissioner Goudge to bite.

Harold Levy; hlevy15@gmail.com;