Motherisk tests 'felt like junk science,' says lawyer in Colorado case

Ontario Court of Appeal Confirms Ongoing “Gatekeeper” Function in Respect of Expert Evidence. Ryan Morris and Ravi Amarnath June 22, 2017.



In its recent decision in Bruff-Murphy v. Gunawardena (Bruff-Murphy), the Court of Appeal for Ontario (Court) set aside a jury award and ordered a new trial on the basis that the trial judge did not correctly apply the Supreme Court of Canada’s (SCC) test relating to the admission of expert evidence.



The Court’s decision in Bruff-Murphy provides valuable guidance as to the nature and extent of a court’s “gatekeeper” responsibility with respect to the admission of expert evidence both when the evidence is first sought to be admitted and thereafter, if prejudice emerges that was not apparent at the time of admission.



https://www.blakesbusinessclass.com/ontario-court-of-appeal-confirms-ongoing-gatekeeper-function-in-respect-of-expert-evidence/



https://nationalpost.com/opinion/christie-blatchford-getting-to-the-root-of-ontarios-family-law-mess



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Mortherisk Report Recommendations: Accessibility of Legal Aid funds



Legal Aid Ontario should in authorizing disbursements to parents’ counsel related to expert evidence, consider the complexity of child protection cases and the miscarriages of justice that could result from failing to vigorously challenge expert evidence; expand its Big Case Management program to child protection cases; and expand its Complex Case Rate policy to child protection counsel.



The Ministry of the Attorney General should ensure that the total funding available to Legal Aid Ontario is sufficient to enable the Recommendations in this Report to be implemented.



Disclosure



The Family Rules Committee should amend the Family Law Rules to require children’s aid societies to provide automatic, ongoing, thorough and timely disclosure to parents..



Education for judges on gatekeeping role in child protection



The National Judicial Institute, the Superior Court of Justice in Ontario, and the Ontario Court of Justice should enhance their efforts to provide education programs and resources on expert evidence in child protection proceedings. Education should emphasize the skills judges need in order to perform their gatekeeper function in the unique context of child protection.



https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/motherisk/



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Motherisk hair test evidence tossed out of Colorado court 2 decades before questions raised in Canada. https://youtu.be/WIJqYz91ceU



A Motherisk expert testified for the defence in a Colorado murder case. The judge who rejected Motherisk’s evidence compared the lab’s process to one in which the scientist “shot the arrow in the air, let it land, and then went and painted the target around the arrow.” The results they wanted when the societies wanted them. The judge mocked the lab’s processes. But the case remained virtually unknown in Ontario. Motherisk raked in millions performing hair-strand drug and alcohol tests on at least 25,000 people across Canada while the children's aid society raked in billions of dollars...



https://www.cbc.ca/news/canada/motherisk-colorado-court-case-1.4364862



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5 REASONS WHY THE MOTHERISK SCANDAL SHOULDN’T HAPPEN AGAIN OR EVER HAVE HAPPENED IN THE FIRST PLACE..



1. The tests were preliminary



The tests performed by Motherisk relied on the unconfirmed results of its enzyme-linked immuno-sorbent assay (ELISA) tests.



ELISA is often used as a screening tool before more in-depth tests are undertaken. It can be used in toxicology as a rapid presumptive screen for certain classes of drugs. It’s useful if you need to screen a large number of samples when the presumption that only a small percentage will test positive. But it’s not definitive and the results can be erroneously interpreted.



The Motherisk Lab did not follow-up its presumed positive ELISA results with follow-on in-depth tests. Therefore, the results simply could not be relied upon to provide the absolute certainty needed.



As Craig Chatterton, a forensic toxicologist and a proponent of hair sample testing, correctly explains in the CBC report on Motherisk, a preliminary test like ELISA can be spot on - but, tragically for the families implicated, it can be 100% incorrect, too.



Susan Lang’s report went on to say "No forensic toxicology laboratory in the world uses ELISA testing the way MTDL [Motherisk] did."



2. Motherisk had no written standard operating procedures



Having standard, professional operating procedures in place is one of the central pillars of any testing environment, not just hair sample testing.



In this regard, Motherisk failed egregiously. The Lang report found no evidence of any written standard operating procedures at Motherisk. This raises serious doubts about the reliability and, crucially, the standardisation of its testing procedures.



Both forensic and clinical laboratories should have standard operating procedures in place for each of the tests they perform. Motherisk had no clear, documented procedures which means the processes could have varied substantially in each individual case, calling into question, rightly, the integrity of the lab’s results.



3. No transparency



Motherisk’s next misstep was the lack of formal process and documentation meant that it was almost impossible for any third party to robustly assess its results.



When the entire process isn’t adequately captured, it becomes easy for the lab to skirt over anomalies and simplify conclusions.



At Cansford Labs, for instance, we share the evidence in full. This is an absolutely vital component when the test will be involved in a highly sensitive matter like child custody.



The fact that Motherisk offered no insight into how its results were arrived at beggars belief.



4. Inadequate training and oversight



The inadequacy and transparency issues within Motherisk seeped all the way into the employees at the lab.



From reading the Lang report, Motherisk scientists were operating without any forensic training or oversight. The ELISA tests were inadequate, but even if they weren’t, the individuals interpreting the results weren’t properly trained.



Nobody at Motherisk, including, rather incredibly, Dr. Koren himself, had the proper training.



The lack of training manifested in all manner of amateurish mistakes. Staff routinely failed to wash hair samples before analysis, for example. One mother tested positive for alcohol because her alcohol-laced hairspray had not been washed off the sample. With the right training and process, these issues could easily have been avoided.



5. A compromised chain of custody



In the CBC report into Motherisk, one mother recalls how her second test was conducted after she disputed the first test’s results: “With my second test, the hair was done in the social worker’s office with the scissors out of her desk, tape off her desk and cardboard from the trash.”



Her sample tested positive for crystal meth, but laughably when she next saw her “hair sample”, the hair that allegedly belonged to her was longer and a different colour.



It should go without saying, but any robust testing process requires professionalism throughout. It’s not just about testing the sample, but also about how the sample is collected and treated.



The chain of custody is of paramount importance. Trusted professionals need to be present at every stage of the process, guided by the lab that will do the testing, and the procedures need to be the same for every single case.



https://blog.cansfordlabs.co.uk/5-reasons-why-the-motherisk-scandal-shouldnt-happen-again



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Unfair or Indefensible - Costs Against C.A.S.?



On behalf of Gene C. Colman Family Law Centre posted in Child Welfare on Tuesday, January 7, 2014.



There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.



The lack of presumption for costs is perfectly understandable. The Courts have been hesitant to impose cost orders against children's aid societies as they are faced with the difficult statutory duty of protecting children from harm and the law tells us that they should not be punished (through costs orders) for errors of judgment. A further reason for courts rarely awarding costs against societies stems from the view that societies should not be discouraged from taking action because of the risk of an adverse costs order.



Rule 24(2) does not give children's aid societies the authority to behave with impunity though. The courts have (and will) order costs against children's aid societies in limited circumstances. For example the 2013 matter of Catholic Children's Aid Society of Toronto v. SSB awarded costs to the mother and Office of the Children's Lawyer for the procedural failings of the CCAST. This case affirms the courts' approach in awarding costs against children's aid societies in that a society will not be shielded from costs where its behaviour is "unfair or indefensible or where exceptional circumstances exist".



In SSB the CCAST sought disclosure of "clinical investigation notes" from the OCL. The OCL claimed that the requested documents were subject to solicitor-client privilege and therefore could not be disclosed as the disclosure would amount to a serious breach of trust between the OCL and the children. The prevailing concern was that the CCAST had sought to obtain the privileged documents on three separate occasions (only to withdraw their motion before a decision could be delivered) and had put the mother and OCL to considerable expense in defending the motions. The judge considered that the repeated attempts to obtain disclosure was tantamount to an abuse of process and verged on acting in bad faith. The judge, most helpfully, summarized the responsibility of the CCAST as follows [at paragraph 12]:



... Like any other litigant, the society must conduct itself according to the rules. It is given broad investigative scope, and cannot and should not be liable for costs for actions it takes in good faith in its duty to investigate cases. That, however, does not give a society licence to ignore the general rules of procedural fairness. When it does, it should be liable in costs.



The CCAST matter also made reference to the 2005 decision of Children's Aid Society of Niagara Region v. B. (C.), which provides guidance for the circumstances when children's aid societies should and should not be liable for costs. These can be summarized as follows [paragraphs 89-100]:



1. Bad Faith Not Required: To attract an adverse award of costs, a children's aid society need not have acted in bad faith;



2. Fairness: Costs may be awarded against a society, "where it conducts itself... in a way where it would be perceived by ordinary persons as having acted unfairly";



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Motherisk hair testing ‘unfair and harmful’ to the poorest and most vulnerable Ontario families



"The testing was imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process of their rights to privacy and bodily integrity," Beaman said in her report released today, entitled Harmful Impacts. "The discovery that unreliable test results were used as expert evidence in child protection proceedings for so many years undermines the public's confidence in the fairness of our justice system, particularly with respect to how it treats vulnerable people."



https://www.thespec.com/news-story/8154968-motherisk-hair-testing-unfair-and-harmful-to-the-poorest-and-most-vulnerable-ontario-families/

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3. Indefensible Behaviour: Many cases hold that a children's aid society should only be visited with an adverse award of costs where it has taken a step or position that is "indefensible", ie. "admitting of no defence".



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WHAT'S THE DEFENCE FOR DENYING COURT FILE DISCLOSURES?

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4. Exceptional Circumstances: There is a line of decisions holding that costs should not be awarded against a society "unless exceptional circumstances exist";



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In the wake for calls for an idenpendant reveiw - province orders children’s aid societies to review credentials of experts used in child welfare cases



https://www.thestar.com/news/gta/2019/08/23/province-orders-childrens-aid-societies-to-review-credentials-of-experts-used-in-child-welfare-cases.html

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5. Error in Judgment not sufficient to attract costs: A society should not be punished for a mere error of judgement (an error of judgement can truly arise only where one has considered all courses of action reasonably available at the time);



6. Society Not to Be Dissuaded by Costs: A society should not be dissuaded from its statutory mandate by costs considerations;



7. Society to Re-assess Its Position: A children's aid society must be even-handed and act in good faith. To this end a society must be prepared to re-assess its position as an investigation unfolds and more information becomes known;



8. Accountability: "Children's aid societies must be accountable" for the manner in which it investigates a case and in the way it chooses to litigate that case (one method of achieving accountability is through costs sanctions);



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SO WHO DECIDED TO USE MOTHERISK EXCLUSIVELY

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The judge in CASNR tells us that a society can attract an adverse costs award where it fails in any of the following seven areas (paragraph 102):



1. Investigation before apprehension;



2. Continued investigation after apprehension;



3. Consideration of all appropriate protective measures;



4. Formation of a fair and defensible position;



5. Reassessment of that position as circumstances warrant;



6. Use of properly trained workers; and



7. Accessing independent experts in the field of child psychology.



This more critical approach adopted by some courts should provide some modest encouragement to parents who have been subjected to biased investigations or litigation undertaken by a children's aid society where the C.A.S. actions were patently unfair or indefensible. These factors should be relevant not only to a costs determination but also to the expected standard of care to which child protection authority must adhere. Holding these agencies accountable to such standards should hopefully be encouraged by the case management judge as the case unfolds.



If you have a matter where a children's aid society has acted unfairly, indefensibly or there are exceptional circumstances, you may benefit from a consultation with our experienced child welfare lawyers.



Tags: CAS, Child Custody, Child Protection, Child Welfare, Children's Aid Society, Costs, Procedural Fairness



Related Posts: THE EASTER BUNNY AND C.A.S. ABUSE OF POWER, Do's and Don'ts of a CAS Apprehension of Your Child, C.A.S. Attitude: Win child welfare cases at all costs, PROPORTIONALITY, SUMMARY JUDGMENT, SELF REPRESENTED CHILD WELFARE LITIGANTS



https://www.complexfamilylaw.com/blog/2018/03/the-easter-bunny-and-cas-abuse-of-power.shtml



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Abuse of power, in the form of "malfeasance in office" or "official misconduct," is the commission of an unlawful act, done in an official capacity, which affects the performance of official duties. ... Abuse of power can also mean a person using the power they have for their own personal gain.



The act of using one's position of power in an abusive way. This can take many forms, such as taking advantage of someone, gaining access to information that shouldn't be accessible to the public, or just manipulating someone with the ability to punish them if they don't comply.



Covert and overt abuse of power: Covert: covert means that something is hidden, in the case of power, it would mean that someone is concealing their abuse of power from the public/other service users/other care workers. Covert abuse of power can happen in any setting.



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"[A]buse of process (is) the intentional use of legal process for an improper purpose incompatible with the lawful function of the process by one with an ulterior motive in doing so, and with resulting damages."



"In its broadest sense, abuse of process may be defined as misuse or perversion of regularly issued legal process for a purpose not justified by the nature of the process."



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Parents lose second bid to launch class-action suit against Motherisk over flawed hair tests.



https://www.thestar.com/news/investigations/2018/11/27/parents-lose-second-bid-to-launch-class-action-suit-against-motherisk-over-flawed-hair-tests.html

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Here are some facts and figures I think point to significant problems for the Ontario child welfare sector and for CAS in particular:

• There are over 5,000 child protection workers in Ontario (5160)

• The College regulates about 17,000 social workers and social service workers

• In Ontario, only 7% of College-registered social workers are employed by a CAS

• Only 4% of members of the Ontario Association of Social Workers work for a CAS

• Between 30% and 50% of Ontario’s child welfare workers do NOT hold a BSW

• 63% of direct service staff in CASs have a BSW or MSW (in 2012, it was 57%)

• 78% of direct service supervisors have a BSW or MSW (in 2012, it was 75.5%)

• The 2013 OACAS Human Resources survey estimates that 70% of relevant CAS job classifications would qualify for registration with the College (so about 1500 CAS currently employed workers would be unable to register with the College)

• From 2002 to 2014, 41 child welfare employees who did not hold a BSW or MSW submitted equivalency applications to register as social workers; only 16 were successful and 25 were refused.

https://unpublishedottawa.com/letter/250535/regulation-child-protection-workers-ontario-college-social-workers-and-social-service

Industry self-regulation is the process whereby members of an industry, trade or sector of the economy monitor their own adherence to legal, ethical, or safety standards, rather than have an outside, independent agency such as a third party entity or governmental regulator monitor and enforce those standards.

[1] Self-regulation may ease compliance and ownership of standards, but it can also give rise to conflicts of interest.

If any organization, such as a corporation or government bureaucracy, is asked to eliminate unethical behavior within their own group, it may be in their interest in the short run to eliminate the appearance of unethical behavior, rather than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and correcting them. An exception occurs when the ethical breach is already known by the public. In that case, it could be in the group's interest to end the ethical problem to which the public has knowledge, but keep remaining breaches hidden.

Another exception would occur in industry sectors with varied membership, such as international brands together with small and medium size companies where the brand owners would have an interest to protect the joint sector reputation by issuing together self-regulation so as to avoid smaller companies with less resources causing damage out of ignorance.

Similarly, the reliability of a professional group such as lawyers and journalists could make ethical rules work satisfactorily as a self-regulation if they were a pre-condition for adherence of new members.

An organization can maintain control over the standards to which they are held by successfully self-regulating. If they can keep the public from becoming aware of their internal problems, this also serves in place of a public relations campaign to repair such damage. The cost of setting up an external enforcement mechanism is avoided. If the self-regulation can avoid reputational damage and related risks to all actors in the industry, this would be a powerful incentive for a pro-active self-regulation [without the necessity to assume it is to hide something].

Self-regulating attempts may well fail, due to the inherent conflict of interest in asking any organization to police itself. If the public becomes aware of this failure, an external, independent organization is often given the duty of policing them, sometimes with highly punitive measures taken against the organization.

 The results can be disastrous, such as a military with no external, independent oversight, which may commit human rights violations against the public. Not all businesses will voluntarily meet best practice standards, leaving some users exposed.

Governments may prefer to allow an industry to regulate itself but maintain a watching brief over the effectiveness of self-regulation and be willing to introduce external regulation if necessary.

For example, in the UK, the House of Commons Public Accounts Committee in 2015 investigated the role of large accountancy firms in relation to tax avoidance and argued that "Government needs to take a more active role in regulating the tax industry, as it evidently cannot be trusted to regulate itself".


https://unpublishedottawa.com/letter/250535/regulation-child-protection-workers-ontario-college-social-workers-and-social-service

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Unfair or Indefensible - Costs Against C.A.S.?

On behalf of Gene C. Colman Family Law Centre posted in Child Welfare on Tuesday, January 7, 2014.

4. Exceptional Circumstances: There is a line of decisions holding that costs should not be awarded against a society "unless exceptional circumstances exist"

https://www.complexfamilylaw.com/blog/2018/03/the-easter-bunny-and-cas-abuse-of-power.shtml

In the wake for calls for an independent review - province orders children’s aid societies to review credentials of experts used in child welfare cases.

https://www.thestar.com/news/gta/2019/08/23/province-orders-childrens-aid-societies-to-review-credentials-of-experts-used-in-child-welfare-cases.html

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How to Spot a Government Funded Sociopath in 3 Steps.

It helps to know some of the warning signs of sociopaths. Posted Mar 15, 2018.

Whether you’re trying to spot a potential school shooter, a dangerous romantic partner, a total liar at work, a scammer on the internet, or someone pushing a bogus business deal on you, it helps to know some of the warning signs for sociopaths. As I explained in Part 1 of this two-part series, sociopaths can have some hidden and dangerous personality features.

The DSM-5 lists 10 criteria for diagnosing antisocial personality disorder1 (ASPD), but it assumes you have professional training and a lot of information about the individuals. I’m not going to teach you how to diagnose an ASPD or to distinguish them from a sociopath (or psychopath, or con artist).

This post focuses on a few of the hints that they may give you at your first or first few encounters. These hints may help you choose to keep your distance despite how appealing they may seem on the surface. Don't be a target.

https://www.psychologytoday.com/ca/blog/5-types-people-who-can-ruin-your-life/201803/how-spot-sociopath-in-3-steps