‘Inadequate and unreliable’ hair tests spark call for new Motherisk probe
Fairness of child protection and criminal cases compromised by Sick Kids lab, review finds
The drug and alcohol hair-testing process at the Hospital for Sick Children’s Motherisk laboratory was “inadequate and unreliable,” concludes a damning report from an independent review released Thursday, which calls for a second probe of criminal and child protection proceedings that had relied on the test results over the past decade.
“In the circumstances, I have concluded that the laboratory’s flawed hair-testing evidence had serious implications for the fairness of child protection and criminal cases,” said independent reviewer Susan Lang, a retired Court of Appeal judge. “A further review is warranted.”
Lang had been tasked by the provincial government with reviewing hair testing done between 2005 and 2015 at the now- shuttered hair-testing lab. She found the lab did not meet internationally recognized forensic standards, and that Sick Kids had not provided “meaningful oversight.”
Minister of Children and Youth Services Tracy MacCharles stopped short of offering an apology — unlike Sick Kids CEO Dr. Michael Apkon last October — but she did say she was “troubled” by the findings.
She said the province will begin to establish a second review and appoint a commissioner.
“(Motherisk’s) testing and operations fell woefully short of internationally recognized forensic standards.” SUSAN LANG RETIRED JUSTICE, AUTHOR OF MOTHERISK REVIEW
“Our government is deeply concerned with the findings of this review and will be taking immediate action,” she told reporters at Queen’s Park.
MacCharles said a toll-free number has been set up to encourage people whose cases may have involved Motherisk to request a review, as well as receive counseling. The independent review was sparked by a Star investigation into Motherisk’s hair testing practices. The investigation showed that prior to 2010, Motherisk was testing hair using a methodology described by experts as falling short of the “goldstandard test.”
Lang said that while Motherisk’s hair tests were “forensic in nature,” and the service it offered police and child protection agencies was a forensic one, none of the lab’s leaders had formal training or experience in forensic toxicology.
“Perhaps this lack of training and experience is why neither (Motherisk) nor the Hospital for Sick Children appears to have appreciated that the laboratory was engaged in forensic work and that it was required to meet forensic standards,” she wrote in her 344-page report.
“The result was inevitable: (Motherisk)’s testing and operations fell woefully short of internationally recognized forensic standards.”
Lang concluded that Motherisk “inadequately communicated” its test results to customers, partly due to the lack of forensic training.
Her review brought back memories of disgraced pathologist Dr. Charles Smith, who was the first director of the Ontario Pediatric Forensic Pathology Unit at Sick Kids.
Many of his autopsies, which led to convictions in some cases, have since been called into question due to various errors. That led to a public inquiry in 2007 headed by Justice Stephen Goudge, whose report was released the following year.
In her review of Motherisk, Lang found that Sick Kids failed to apply several important lessons from the Goudge inquiry, particularly around forensic training and oversight.
“They should have fixed things (after the Goudge inquiry), and they didn’t. So it’s very disappointing,” Mary Ballantyne, executive director of the Ontario Association of Children’s Aid Societies, told the Star.
“I think there’s a huge disappointment in an institution that we relied on, and I think that we will certainly be much more guarded on a go-forward basis to ensure that we really are getting the information that we need in the right way. . . . It really is a disappointing breach of trust, for sure.”
The independent review follows an internal Sick Kids probe that also found the Motherisk laboratory was operating at times without appropriate oversight.
After the hospital permanently halted hair testing last April, CEO Apkon apologized for “unacceptable” practices at the lab in an October interview with the Star. He said the hospital has no plans to resume drug and alcohol hair tests.
“We regret that families feel that they may have been harmed through this whole set of events, but we applaud the development of an approach to look at things on a case-bycase basis (in a second review),” Apkon told the Star on Thursday.
While critics generally applauded the independent review’s findings on Thursday, it was a case of “too little, too late” for Christine Rupert, whose two daughters were removed at birth and later adopted out.
They remained in foster care based, at least partly, on Motherisk hair tests that showed Rupert was a heavy cocaine user — a finding she has always fiercely denied and has gone to great lengths to disprove.
“The damage is done; it’s changed my life, it’s changed the lives of my daughters,” she told the Star, adding she intends to fully participate in the second review. Her lawyer, Julie Kirkpatrick, said the next review must focus on the needs and concerns of those who have been through child protection proceedings.
“Unless the review is designed in such a way that the people like Christine Rupert, her family, and her lost children, are placed at the centre of the process, a further review will likely be of little assistance or comfort to her,” she said.
An key part missing from the report was acknowledgement of the disproportionate impact the hair tests had on aboriginal families, said Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, which made submissions to Lang’s review.
“It is imperative that the new commissioner that the minister has said she will appoint will take particular care to ensure that any and all systems that are put in place take into account the particular and unique circumstances of aboriginal people,” he told the Star.
While Motherisk hair tests have been relied upon in thousands of child protection proceedings — hair samples from more than 16,000 individuals were tested at the request of child protection agencies between 2005 and 2015 — the review also found six criminal cases that led to convictions where hair tests were used.
One of those cases was that of Tamara Broomfield, a Toronto woman whose cocaine convictions were overturned by the Ontario Court of Appeal in October 2014, in a ruling that sparked the Star’s investigation.
Broomfield’s appeal lawyer, James Lockyer, a founding director of the Association in Defence of the Wrongly Convicted, said the association will immediately begin reviewing other criminal cases that relied on Motherisk.
“I find it very troubling that we’re back right where we were with Dr. Charles Smith . . .(a lack) of any supervision of what’s going on in the hospital,” he said. “And it’s all very well that that the hospital will say it won’t happen again, when it’s already happened. This is ‘again.’ ”
Criminal defence lawyer Daniel Brown, who tried to get the trial judge to re-open Broomfield’s case in 2010 to re-examine the medical evidence, said: “This report is yet another important reminder that the judiciary must be vigilant in scrutinizing expert evidence in court to ensure a fair trial.”
Brown, who co-authored the Criminal Lawyers’ Association’s submissions to Lang’s review, called for an immediate public inquiry to examine all criminal cases involving Motherisk.
A spokeswoman for Ontario Attorney General Madeleine Meilleur said there will be an “immediate referral” of affected criminal cases to the Ontario Criminal Convictions Review Committee. Christine Burke said the ministry is not aware of any accused in custody in connection with a criminal case involving Motherisk testing. With files from Rachel Mendleson