Queen’s Park will probe five years’ worth of hair drug tests performed by the Hospital for Sick Children, used in child protection and criminal cases, amid an ongoing Toronto Star investigation.
Attorney General Madeleine Meilleur said the independent review of Motherisk laboratory program at Sick Kids, led by retired Appeal Court Justice Susan Lang, is a “first step” that could spark a much larger inquiry.
Lang will specifically examine the “adequacy and reliability” of the hair testing method used by Motherisk between 2005 and 2010 in child protection and criminal proceedings, Meilleur said.
Children’s aid societies depend heavily on Motherisk’s hair tests, which are routinely accepted without challenge in courts across Ontario as evidence of parental substance abuse, and have influenced an unknown number of child custody decisions.
Cabinet decided Wednesday to launch the investigation, following a Court of Appeal decision that cast doubt over the evidence Motherisk presented in the trial of Toronto mother Tamara Broomfield.
Broomfield was found guilty in 2009 of giving her toddler a near-lethal dose of cocaine in 2005, based in part on Motherisk’s tests of the boy’s hair. Her cocaine convictions were tossed after fresh expert evidence criticized the tests as “preliminary.”
She served more than half of a seven-year prison sentence before she was released last year on bail, pending appeal, and lost custody of her son.
Meilleur said the retired judge’s review is the best way to ensure public confidence in the system.
“Part of the purpose of this review will be to determine whether additional reviews should be undertaken with respect to specific cases or classes of cases,” she said. “This is a first step. It may end there.”
Lang will submit a report to the province by next June 30, Meilleur said.
The attorney general said Lang, who was appointed to the bench in 1989 and named to the Court of Appeal for Ontario on 2004, is an expert in family law.
“We have no doubt she is the best person to do that,” Meilleur said.
Sick Kids spokeswoman Gwen Burrows said the hospital “welcomes the independent review” and is “confident that the questions which have been raised over the past few weeks will be addressed through this process.”
“Our teams look forward to working closely with Justice Lang throughout this review,” Burrows said in an email. “We will carefully consider any recommendations that may be made to improve processes associated with this complex and evolving area of analytical laboratory science.”
Toronto criminal lawyer Daniel Brown praised the province’s decision to launch the probe.
“The government has taken a huge step forward to address the concerns surrounding forensic hair testing raised in the Broomfield case,” said Brown, who tried in 2010 to get her trial judge to reopen her case to take another look at the scientific evidence.
“Moving forward, I hope that courts will exercise caution in relying on the results of hair-testing analysis without assurances that the science is an accurate indicator of alcohol or drug consumption,” he said.
The Motherisk review, which will be officially announced on Friday, is the latest in a series of high-profile inquiries into Sick Kids, dating back decades.
In October 2008, Ontario Court of Appeal Justice Stephen Goudge issued a report lambasting forensic pathology’s state of affairs in the wake of the inquiry into flawed child death investigations by former Sick Kids pediatric pathologist Charles Smith.
In 1984, then Justice Samuel Grange led a royal commission investigating a series of baby deaths at Sick Kids, but in the end, no one was held criminally responsible.
Calls for the province to examine past Motherisk cases have been mounting since the October appeal court decision in the Broomfield case.
At Broomfield’s trial, Motherisk founder and director Gideon Koren testified that tests of the boy’s hair showed he had regularly ingested very high doses of cocaine for more than a year leading up to a 2005 overdose.
The appeal court decision came after Craig Chatterton, deputy chief toxicologist in the office of the chief medical examiner in Edmonton, said the “gold-standard” technique was not used.
Chatterton, who gave his opinion as an independent consultant, also said the tests should have been conducted in a forensic lab, rather than in a clinical lab, like Motherisk.
Based on the conclusions Motherisk presented, Chatterton claimed it was “not possible” to determine whether the boy had ingested or been exposed to cocaine over an extended period.
Despite repeated requests, Sick Kids has not said how many other child welfare cases were influenced by the same type of analysis. The hospital has defended the reliability of its Motherisk program, as well as the test used in the Broomfield case.
Sick Kids has said Motherisk has been using the gold-standard technique to test hair for cocaine since 2010, and defends the technique used in 2005 in the Broomfield case as “highly reliable,” based on cross-testing.
That leaves a question hanging over at least five years of cases.
Motherisk performed more than 23,000 hair tests in 2011 — 95 per cent of which were billed to public agencies, such as children’s aid societies, according to documents related to a freedom of information request. (Sick Kids has said each hair sample could be tested up to 12 times.)
In late 2009, before Motherisk switched to the gold-standard technique, the lab told children’s aid societies in a newsletter that cocaine was “by far” the most common drug detected in the lab.
The Star investigation has revealed international experts, a British High Court and a U.S. government department have raised questions about the validity of the drug and alcohol hair tests in general.
Meilleur said the review would be limited to the hair drug tests Motherisk performed from 2005 to 2010, using the technique that was used in the Broomfield case, called “immunoassay.”
In defending the Motherisk program, Sick Kids has repeatedly pointed to a report written by Utah toxicologist Douglas Rollins, which was filed in court during Broomfield’s appeal process, and supported Motherisk’s analysis in the case as “valid and reliable.”
However, when Rollins was cross-examined by Broomfield’s lawyer, he conceded the analysis did not meet the international standards for evidence presented in court, according to a transcript of the proceeding, which did not exist before the Star ordered it earlier this month.
Rollins also acknowledged that the lab did not present the results as “unconfirmed,” contrary to forensic standards, and that he would expect a facility used for investigative purposes to be accredited as a forensic lab.
Motherisk is accredited as a clinical lab.
The appeal court ruling in the Broomfield case was issued after the Crown agreed that the fresh expert evidence should be admitted and Broomfield’s cocaine convictions tossed. It did not address the reliability of the Motherisk program.
Broomfield, meanwhile, has abandoned her appeals of other child-abuse convictions related to her son.
The boy, now 11, suffered permanent brain damage as a result of the 2005 cocaine overdose. The October decision did not say how he gained access to the drugs. After her son’s overdose, Broomfield told police that she had found drugs in her apartment building before, and recalled an instance when the boy had picked up a bag of crack in the building, court documents state.