GIST: There’s no way to undo the damage done by Motherisk’s flawed alcohol and drug testing program, in many cases no way at all to unbreak the broken families or unchange changed lives. True justice for most victims may not be possible, a new report seems to suggest, which makes it all the more important that nothing like this tragedy ever happens again. The final report of the Ontario Motherisk Commission, released earlier this week, is a document at once disheartening and hopeful. If the panel’s purpose was to ease the pain of those affected and redress the injustices wrought, the sum of its two-year effort will no doubt come as a great disappointment to many. Yet, in its 32 recommendations, the commission has pulled back the curtain on Ontario’s secretive and badly broken child services system and pointed the way to a much-needed overhaul. The commission was created in the wake of an independent review, sparked by Star reporter Rachel Mendleson’s investigation, which concluded that the process of testing hair at the lab was “inadequate and unreliable.” The damning examination, by retired Court of Appeal justice Susan Lang, found that Motherisk “fell woefully short of internationally recognized forensic standards” and that Sick Kids Hospital, where the lab was run, failed to supply “meaningful oversight.” This “had serious implications for the fairness of child protection and criminal cases,” Lang concluded. Shortly after that finding, the provincial government appointed Judith Beaman, a family law expert and former judge, to work as an independent commissioner looking into child protection cases that may have been tainted by flawed Motherisk hair testing going back to 1990 in the hopes of “providing some measure of relief to the families who were affected.” That turned out to be a far more difficult job than Beaman anticipated, as she writes in her report. In the end, the commission considered roughly 1,300 cases, only those where children were permanently removed from their families and were still under 18 at the time of the review. Of those removals, the commission found, 56 were significantly informed by flawed testing. Yet in only four cases have children been reunited with their parents. Many will be understandably disappointed by this lack of redress and by Beaman’s pessimism about the possibility of more. Adoptions are virtually impossible to undo and nor is that necessarily the desirable outcome. “The people affected have only a remote chance of achieving satisfactory legal remedy,” Beaman said. Some have also criticized the narrowness of the commission’s scope. About 16,000 individuals had their hair tested by Motherisk at the request of Ontario child welfare agencies from 2005 to 2015 alone. Beaman looked at less than 10 per cent of those cases. The commission offered little succour to the many victims it deemed outside its purview, including some who saw their children temporarily removed. And some will no doubt be perplexed, as we are, by the absence of any mention of Sick Kids in the commission’s recommendations. The hospital, whose oversight was deemed so wanting by Susan Lang’s report, was also the employer of Charles Smith, the disgraced pediatric pathologist whose faulty autopsies led to a number of wrongful murder charges and convictions. Surely Sick Kids, home to two devastating junk-science scandals over the last decade, must be held to account if the system is going to be fixed. Yet despite these limitations, the commission does offer in its 32 recommendations an astute diagnosis of the problems facing Ontario’s child-services system and a promising path to address them. The commission, for instance, rightly calls on Ontario to limit the ability of bad science to subvert justice – a persistent problem here as elsewhere. Beaman proposes, for example, that all lab test results used in child protection proceedings be accompanied by a contextualizing expert report and that legal aid funding be expanded in cases involving expert testimony. Good science is essential to good justice, but science is an imperfect, ever-evolving enterprise. Our child-protection and justice systems must treat it as such.
The commission also acknowledges that parents caught up in the child protection process too often “feel powerless to resist,” submitting to testing “under duress, in fear of losing custody.” For that reason, it wisely recommends that children’s aid societies be required to obtain written consent before taking a bodily sample. That courts throw out such evidence if written consent was not obtained. And that legal aid funding and legal training be improved so lawyers can better counsel parents caught up in the system. It also crucially recognizes that the injustices of the current system are disproportionately borne by Indigenous people and, for that reason, calls on Ottawa to make investments to ensure First Nations are better able to effectively participate in the process. These and Beaman’s other recommendations, if implemented, would go a long way to “help ensure that no family suffers a similar injustice in the future” – the commission’s stated hope. But what about justice for Motherisk’s victims? While the commission had little hopeful to say about that, Attorney General Yasir Naqvi did float for the first time this week the possibility of financial compensation for affected families. Such redress is already being sought in the courts. Rather than fight it, the province should work toward timely compensation for all victims. Beaman is certainly right that the province could never adequately recompense parents for the pain and loss caused by Motherisk. Short of families reunited, it is impossible to imagine what that would even look like. Nevertheless, it absolutely must try. And it must do all it can to fix the system. The ability to remove a child from a family’s home is among the state’s most disruptive and potentially devastating powers. Let us learn at last from Motherisk that it has been used too freely and too carelessly for too long."

The entire editorial can be read at:

Read also the excerpt from Justice Susan Lang's above mentioned report  - in which she doesn't mince words about the insidious role played by The Hospital for Sick Children in both the Charles Smith and Motherisk debacles. (The letters MDTL - used throughout the excerpt - refer to Motherisk Drug Testing Laboratory). The excerpt can be read at the link below:

"MDTL was housed in one of the most prominent and well-respected children’s hospitals in Canada – the Hospital for Sick Children. SickKids has a sophisticated infrastructure of oversight and accountability for its laboratories, yet no one charged with overseeing MDTL provided any meaningful oversight. What went wrong at the Hospital? MDTL was originally a research laboratory, housed in the Research Institute at SickKids. The Hospital told the Independent Review that it was not until 2005 that it became aware of the nature and quantity of the testing that the Laboratory was carrying out for non-research purposes. However, even when the Hospital’s leadership became aware that MDTL was routinely carrying out hair tests for child protection cases, the Hospital viewed MDTL’s work as being a shift from research toward clinical practice. There is no evidence that anyone in a leadership position at the Hospital meaningfully considered the reality that MDTL was, for the most part, carrying out hair tests for forensic, not clinical, purposes and that it needed to meet forensic standards. When, in 2005, it learned of the extent of the tests that MDTL was performing for non-research purposes for child protection agencies, the Hospital considered bringing MDTL into SickKids’s clinical licensing and accreditation process. Even so, MDTL was included in neither the 2006 Ontario Laboratory Accreditation inspection of the Hospital’s clinical laboratories nor the 2008 Ontario Laboratory Accreditation midterm self-assessment of the Hospital’s clinical laboratories.
In fact, in 2008, when the Department of Paediatric Laboratory Medicine (DPLM) was performing its midterm self-assessment, it specifically turned its mind to MDTL’s inclusion in that process. However, the Hospital decided not to include MDTL because it recognized that accreditation would likely not be achieved. This decision is not surprising. If MDTL had been included in the midterm self-assessment at the time, it would have been clear to the accrediting body that MDTL did not meet the requirements of the Ontario Laboratory Accreditation program for a clinical laboratory. The stark reality is that, at this time, MDTL did not have a quality management system or any standard operating procedures for its hair tests for drugs of abuse, both of which were basic requirements under the Ontario Laboratory Accreditation program. Even when the Hospital eventually brought MDTL into the Ontario Laboratory Accreditation process, it took no steps to ensure that MDTL’s hair tests were fit for their intended purpose or that MDTL had the appropriate equipment, infrastructure, personnel, and expertise to carry out hair tests for drugs of abuse and alcohol markers. None of the programs, departments, or divisions within the Hospital ever took ownership of MDTL as a laboratory, and no clear lines of accountability were ever drawn. The result was inevitable: MDTL slipped through the cracks. The Hospital exercised no meaningful oversight over the Laboratory. My conclusion that SickKids failed to exercise meaningful oversight over MDTL’s work must be considered in the context of the Hospital’s experience with Dr. Charles Smith, a pediatric pathologist who worked at SickKids. Dr. Smith was the first director of the Ontario Pediatric Forensic Pathology Unit (OPFPU), which was housed in the Hospital. In April 2007, the Government of Ontario appointed the Honourable Justice Stephen T. Goudge as commissioner of the Inquiry into Pediatric Forensic Pathology in Ontario. The Hospital was a party with standing at the inquiry. Commissioner Goudge released his report on October 1, 2008 (Goudge Report) – the same year in which the Hospital determined that clinical accreditation might not be achieved for MDTL. The Goudge Report is relevant to this Independent Review for at least three reasons. (1): It highlighted the dangers associated with having a laboratory within the institution that routinely provided a forensic service yet was led by individuals who lacked any forensic training. (2): It concluded that the Hospital’s lines of oversight and accountability over the forensic pathology service lacked clarity and created a vacuum where nobody was held accountable for the forensic pathology service. (2): It concluded that the Hospital’s lines of oversight and accountability over the forensic pathology service lacked clarity and created a vacuum where nobody was held accountable for the forensic pathology service. (3): Commissioner Goudge noted the role that SickKids’s reputation for excellence played in positioning Dr. Smith as a leading expert in his field, notwithstanding his lack of forensic expertise." All three of these lessons should have been applied to MDTL, but the Hospital did not do so."

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to: Harold Levy; Publisher; The Charles Smith Blog."