The Family Lawyers Association says the Hospital for Sick Children has “an obligation” to address the unanswered questions surrounding the hair-strand drug and alcohol testing performed by its Motherisk laboratory.
However, even if Sick Kids breaks its silence, the recent Court of Appeal decision that cast doubt on the science Motherisk presented in a 2009 trial will change the way child welfare cases play out in courts across the province, according to the association’s acting chair, Katharina Janczaruk.
“We want to know what has been going on. Frankly, given the amount of reliance we’ve placed in them, they have an obligation to account for it,” Janczaruk said. “But (does) this means that they provide an explanation and we can go on as we did before? I don’t think that’s right. This is a wake-up call.”
More than anything, she said, the case is a reminder that “expert evidence always needs to be challenged.”
In response to questions from the Toronto Star on Monday, Sick Kids spokeswoman Matet Nebres said only that the hospital is “reaching out to the Family Lawyers Association of Ontario directly.”
Meanwhile, at Queen’s Park, Ontario’s Attorney General Madeleine Meilleur reiterated that the government is “reviewing” the appeal court decision, but did not give a timeline for the review.
Despite concerns from family and criminal lawyers, a former family court judge, children’s aid societies and opposition critics in the legislature, Sick Kids has repeatedly defended the Motherisk laboratory program, which is valued “in the millions,” according to a recent estimate.
The hospital has not said how many child welfare and criminal cases have been influenced by the same type of analysis Motherisk provided in the case of Toronto mom Tamara Broomfield.
Motherisk no longer tests hair samples for cocaine with the technique that was used in the Broomfield case, according to Sick Kids. But the hospital has not said what type of test the lab currently uses, when it was implemented, or whether it is the technique that was identified in Broomfield’s appeal process as the “gold-standard.”
Until these questions are answered, Toronto family lawyer David Miller said he is “refusing” to allow his clients to submit to hair-strand drug testing at Motherisk.
“These results are being used to remove children from families,” Miller said. “When we are making decisions as fundamental and important as these, we should be using the gold-standard test.”
Broomfield, 31, was convicted of giving her toddler, Malique, a near-lethal dose of cocaine in 2005, based, in part, on testimony from Motherisk’s founder and director, Gideon Koren. Koren said that hair testing showed Malique had regularly ingested very high doses of cocaine for more than a year leading up to the 2005 overdose.
Broomfield’s cocaine-related convictions were overturned in October after fresh evidence was admitted from Craig Chatterton, deputy chief toxicologist in the office of the chief medical examiner in Edmonton. Chatterton criticized the technique Motherisk used to test Malique’s hair as “preliminary,” and said the lab did not seek confirmation with a gold-standard test.
A report from a third expert, Utah toxicologist Douglas Rollins, supported Motherisk’s analysis. Sick Kids has defended the technique used in the Broomfield case as “highly reliable,” based on cross-testing.
Miller predicted that concerns about the reliability of Motherisk’s hair testing “will become part of court cases.”
“The report from Dr. Chatterton — there were questions there that need answering,” he said. “I’m still waiting for the response from Motherisk.”
Tammy Law, another family lawyer in Toronto, said she has also stopped agreeing to have her clients’ hair tested at Motherisk, and will now look at hair-strand test results “with a lot more care.”
“I don’t think people are going to be so readily accepting of these tests anymore, particularly in cases where there is no other evidence … of addiction,” she said.
On Monday, MPP Jim McDonell, Progressive Conservative critic for children and youth services, said the province has had “enough time to come up with a solution,” and provide children’s aid societies with direction.
“This government has the ability to do that. They have access to the experts. It’s time that they use it,” McDonell said. “These are our most vulnerable. These are people who need help. We just need to take a stand.”
Attorney General Madeleine Meilleur said on Monday that the decision in the Broomfield case came after the appeal court “learned there was competing evidence” on the Motherisk test, but that the court “didn’t make any decision on the test, per se.”
“Sick Kids has a lot of confidence in the test. The trial judge is responsible to accept the evidence that is presented to him or her,” she said. “So, it’s up to the trial judge to make a ruling, not the attorney general.”
Asked about the concerns that have been raised by family lawyers, Meilleur said, “That’s why we are reviewing the decision of the court and the argument that was put forward.”
She said she did not know how soon the review would be completed, noting that there are three ministries involved, including the Ministry of Children and Youth Services and the Ministry of Health and Long-Term Care.
Last year, Ontario’s Information and Privacy Commission compelled Sick Kids to release information requested under Freedom of Information legislation that showed Motherisk conducted 23,604 drug and/or alcohol hair tests in 2011. Of those, 95 per cent were billed to public agencies, such as children’s aid societies. Each hair sample could be tested as many as 12 times, according to Sick Kids.
According to the 2013 decision, Motherisk said it was the “primary provider” in Canada of testing for long-term substance-abuse monitoring for social service agencies. The hospital said the program was valued “in the millions,” the decision states.
In light of the concerns surrounding Motherisk, Janczaruk said she reminded members in a newsletter Monday to “be vigilant” and “always ask questions” about expert evidence from the outset of child welfare cases.
“The thing about Motherisk, is that is has really been treated as sacred,” Janczaruk said. “This case indicates that that is an approach that is detrimental to the client.”
Sick Kids said last week that because cases of ingestion of cocaine in children are “extremely rare,” the hospital “has not initiated an extensive review of all hair-testing cases.” Koren and Sick Kids CEO Michael Apkon have declined multiple interview requests.
The Court of Appeal did not comment on how Broomfield’s son got the cocaine that resulted in the 2005 overdose, which left him with permanent brain damage. She has abandoned her appeals on other child-abuse convictions related to the boy.
- With files from Tim Alamenciak