11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 February 20th, 2008 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime (np) ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 Jill Presser (np) ) 13 14 Brian Gover (np) ) Office of the Chief Coroner 15 Luisa Ritacca (np) ) for Ontario 16 Teja Rachamalla (np) ) 17 18 Jane Langford (np) ) Dr. Charles Smith 19 Niels Ortved (np) ) 20 Erica Baron (np) ) 21 Grant Hoole (np) ) 22 23 William Carter ) Hospital for Sick Children 24 Barbara Walker-Renshaw (np)) 25 Kate Crawford )
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene (np) ) Criminal Lawyers' 6 Breese Davies (np) ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen (np) ) 9 10 James Lockyer (np) ) William Mullins-Johnson, 11 Alison Craig ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 14 Peter Wardle (np) ) Affected Families Group 15 Julie Kirkpatrick (np) ) 16 Daniel Bernstein (np) ) 17 18 Louis Sokolov (np) ) Association in Defence of 19 Vanora Simpson ) the Wrongly Convicted 20 Elizabeth Widner (np) ) 21 Paul Copeland (np) ) 22 23 24 25
41 APPEARANCES (cont'd) 2 Jackie Esmonde ) Aboriginal Legal Services 3 Kimberly Murray (np) ) of Toronto and Nishnawbe 4 Sheila Cuthbertson (np) ) Aski-Nation 5 Julian Falconer (np) ) 6 7 Suzan Fraser ) Defence for Children 8 ) International - Canada 9 10 William Manuel (np) ) Ministry of the Attorney 11 Heather Mackay (np) ) General for Ontario 12 Erin Rizok (np) ) 13 Kim Twohig (np) ) 14 Chantelle Blom (np) ) 15 16 Natasha Egan ) College of Physicians and 17 Carolyn Silver ) Surgeons 18 19 Michael Lomer (np) ) For Marco Trotta 20 Jaki Freeman ) 21 22 Emily R. McKernan (np) ) Glenn Paul Taylor 23 24 25
51 TABLE OF CONTENTS Page No. 2 3 VIABLE COMPLAINTS PANEL: 4 JOAN GILMOUR 5 LORNE SOSSIN 6 ROCCO GERACE 7 CATHERINE YARROW 8 9 Questioned by Ms. Linda Rothstein 8 10 Questioned by Ms. Luisa Ritacca 120 11 Questioned by Ms. Jackie Esmonde 126 12 13 Certificate of transcript 131 14 15 16 17 18 19 20 21 22 23 24 25
61 --- Upon commencing at 9:29 a.m 2 3 THE REGISTRAR: All rise. 4 COMMISSIONER STEPHEN GOUDGE: Please sit 5 down. Good morning. 6 Ms. Rothstein...? 7 MS. LINDA ROTHSTEIN: Good morning, 8 Commissioner. I want to begin by welcoming back 9 Professor Lorne Sossin, who as you know and most in the 10 room do, Commissioner, is at the Faculty of Law U of T 11 and has a very wide interest in administrative law, 12 public administration, professional regulations, civil 13 litigation ethics and professionalism. Welcome back, 14 Professor Sossin. 15 I want to welcome this morning Dr. 16 Catherine Yarrow. Dr. Yarrow is the Registrar and 17 Executive Director of the College of Phycologists of 18 Ontario. She's also the Treasurer for the Federation of 19 Health Regulatory Colleges of Ontario, a Trustee of the 20 Association of State and Provincial Psychology Boards, 21 and interestingly a mentor to MBA students at Rotman 22 School of Management. It's good to know they're getting 23 some psychology mentoring. Welcome, Dr. Yarrow. 24 I also want to welcome Professor Joan 25 Gilmour. Professor Gilmour is an Associate Professor at
71 Osgoode Hall Law School York University. She is the 2 Director of the LLM Program in health law. Her two (2) 3 teaching areas include torts, health law, legal 4 governance of health care, professional governance. 5 Most recently Professor Gilmore's research 6 has focussed on a major study on the effects of tort law 7 negligence, on efforts to improve patient safety and 8 reduce medical error. She's also an associate scientist 9 at the University of Alberta and holds a doctorate in the 10 Science of Law from Stanford. Welcome, Professor 11 Gilmore. 12 And last, but not least, Dr. Rocco Gerace 13 comes back to assist us in his capacity as the Registrar 14 of the College of Physicians and Surgeons of Ontario. He 15 is a professor in the Department of Medicine at the 16 University of Western Ontario, and is an executive board 17 member of the Medical Counsel of Canada, a board member 18 of the central -- the Centre for the Evaluation of Health 19 Professionals, educated abroad, and a counsel member of 20 the Medicolegal Society of Toronto. And welcome back, 21 Dr. Gerace. Thank you very much. 22 23 VIABLE COMPLAINTS PANEL: 24 25 JOAN GILMOUR
81 LORNE SOSSIN 2 ROCCO GERACE 3 CATHERINE YARROW 4 5 QUESTIONED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: Our subject this 7 morning, as you know, Commissioner, is how to create a 8 viable complaints and discipline process for forensic 9 pathologists, pediatric forensic pathologists in 10 particular, but because we have such an interesting and 11 broad array of perspectives and talents here I thought we 12 should start right at 30,000 feet. 13 We all know that the RHPA exists and we 14 all know what it tells us about how one creates such a 15 system, but I think it would be interesting to hear from 16 a very different vantage point from you first, Professor 17 Gilmore, how one goes about from a patient perspective, 18 from a consumer perspective, creating a viable complaints 19 and discipline process. 20 DR. JOAN GILMOUR: Thank you. Well, I 21 think the most important starting point is obviously that 22 the goal of the system has to be to ensure public 23 protection, and for going forward as well. 24 It's also important to ensure fairness for 25 all of those who are concerned or involved in that system
91 as -- as a complaint goes forward. And it's important 2 that the body, whatever form that may take, would have an 3 ability to find out what happened in a particular case. 4 And that means to me that it wouldn't -- 5 need an ability both to recognize and to consider the 6 problem in its various aspects, and in particular to take 7 into account the scope of what may be involved. And what 8 I mean by that is what's led to this result, and the fact 9 that there may be not just individual factors but also 10 systemic factors that are involved. And I think it's 11 important to be able to take that into consideration. 12 One (1) thing about a complaint system is 13 that it is generally reactive; it generally is in 14 response to something that has occurred that is thought 15 to be unsatisfactory or to have caused harm. And that 16 then doesn't get at the need to try to identify problems 17 or concerns before the harm occurs, which would certainly 18 be an aim in making a system better. So you need to 19 build that ability in as well. 20 And I think, finally, it's important that 21 there is an ability to impose a range of sanctions that 22 is actually responsive and appropriate to the situation 23 that has occurred; trying to better things and 24 practitioners for the future. 25 MS. LINDA ROTHSTEIN: Okay.
101 DR. JOAN GILMOUR: As well as to respond 2 to what has happened. 3 MS. LINDA ROTHSTEIN: Professor Sossin, 4 any comments? 5 DR. LORNE SOSSIN: Well, the only thing I 6 would add -- I agree with all of that -- is that we 7 should also, even though we're spending today looking at 8 complaints-based oversight, not lose sight of where this 9 fits into the broader model of oversight that has been at 10 issue before the Inquiry. 11 So, for example, last week there was a 12 fair bit of discussion of quality management, quality 13 assurance, mentorship, training, accountability in terms 14 of data collection, transparency about the death 15 investigation process. And I think the important thing, 16 with respect to complaints, is to see it as an integrated 17 part of that broader model and not just to hive off some 18 concern with the individual. Even though there may be 19 individuals who merit that concern and there needs to be 20 a process to deal with that, I think there can be. 21 Because it's so high profile when there is 22 a disciplinary proceeding against someone, it can 23 essentially suck up all the oxygen in the room from all 24 the other measures and structures that are in place. And 25 I think that's a -- just a cautionary note on seeing this
111 as part of oversight not as oversight. 2 COMMISSIONER STEPHEN GOUDGE: This may be 3 too abstract a question for both of you, but how 4 important is independence as part of a complaints 5 process? By that I mean -- 6 DR. LORNE SOSSIN: Yeah. 7 COMMISSIONER STEPHEN GOUDGE: -- 8 independence of the organization within which the 9 individual complained about functions. 10 DR. LORNE SOSSIN: Well, there's -- 11 COMMISSIONER STEPHEN GOUDGE: That's a 12 very abstract question, Professor Gilmour, but you 13 didn't -- 14 DR. LORNE SOSSIN: Sure. 15 COMMISSIONER STEPHEN GOUDGE: -- you 16 didn't recite independence -- 17 DR. JOAN GILMOUR: No. 18 COMMISSIONER STEPHEN GOUDGE: -- as a 19 fundamental building block of a complaints process and -- 20 DR. JOAN GILMOUR: No, I didn't. And -- 21 and without trying to hedge too much, the answer -- my 22 answer would be that it depends. And it would depend -- 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. JOAN GILMOUR: -- on the process that 25 you're involved in, because to me there are ways in which
121 expertise is also an important value and that may mean 2 then involvement in the field that -- that you're talking 3 about. 4 And if independence means, for instance, 5 that a member of that profession can't judge what another 6 member of that profession does, I wouldn't think that 7 that's necessarily true. And at the same time I think 8 it's also important to have other voices on that panel or 9 entity that is making that determination. 10 So, for instance, if we take a model like 11 a discipline committee in one (1) of the self-regulating 12 health professions, I think that the lay presence, the 13 presence of members of -- of the public, is -- is very 14 important. But I also think that the expertise that 15 members of the profession bring to that determination is 16 important as well. 17 DR. LORNE SOSSIN: And just to follow-up 18 quickly on that, I -- I see it again as a -- a search for 19 the optimal, and -- and you can imagine poles at either 20 end that -- that won't get there. 21 So for example, the internal complaints 22 mechanism where you have to go to the person who's just 23 delivered what you feel to be incompetent, or service for 24 which you believe there was misconduct, to have to go to 25 that person to complain, which is something coming out of
131 the Shipman Inquiry, I think was one (1) of the 2 recommendations in the UK, you know, suggests an -- an 3 absence of independence that could also deter complaints, 4 make them less effective, and -- and again these are all 5 interrelated pieces. 6 On the other hand, you can look at 7 something like the Ombudsman, which has a tremendous 8 amount of independence, and does have jurisdiction over 9 the coroners, but is quite far along that spectrum of 10 expertise and -- and a sense of understanding this 11 milieu. 12 So I think there may be a mix, and it may 13 be independence is one (1) of the factors, but I think it 14 would be wrong to simply say the more independence the 15 better, or the less independence the less effective. But 16 I also believe it would be wrong to leave independence 17 out of that equation of finding the right optimal mix. 18 COMMISSIONER STEPHEN GOUDGE: That is 19 helpful. Thanks. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: Dr. Yarrow, any 23 comments from your perspective, in terms of having to 24 manage the realities of consumers of psychological 25 services, and their concerns about the process by which
141 you regulate members of -- 2 DR. CATHERINE YARROW: Well, I -- 3 MS. LINDA ROTHSTEIN: -- of the 4 profession? 5 DR. CATHERINE YARROW: -- I think one (1) 6 of the key things is that consumers really need to 7 believe that we take their concerns seriously enough to 8 investigate them, and take the time to explain our 9 processes to them. It can be pretty bewildering, and 10 pretty daunting, and particularly when there are high 11 stake situations, and the opinions may affect the lives 12 of individuals or families quite profoundly, or the 13 careers of individuals. 14 So I think it's critical that they do feel 15 that they get a hearing on what their concerns are and 16 that we attend to them. Even if we may not find that 17 there's a standards problem, or a -- a concern at the end 18 of the day, the fact that we've taken the time to 19 communicate with them, and listen to them, often helps 20 tremendously. And then if we do find a concern, that 21 we're seen to be acting appropriately on that concern. 22 MS. LINDA ROTHSTEIN: And finally you, 23 Dr. Gerace, anything to add at this stage? 24 DR. ROCCO GERACE: I would just like to 25 go back to the comment around independence of a
151 complaints process, and -- and it would be my suggestion 2 that any process that's in place provides a continuum. 3 And so if we -- if we, for example, look 4 at a hospital where there are multiple physicians 5 practising, there are numerous complaints that go to a 6 hospital, the vast majority of those, I suspect, are 7 resolved with more or less satisfaction. It's only when 8 perhaps they're not resolved that the complaint might 9 come to the College, if -- if one (1) or other party is 10 not satisfied, there it goes to the Health Professions 11 Board. 12 So there is a continuum of complaints, and 13 I -- I think often when we look at the spectrum of 14 complaints that we get, many of them could be handled at 15 a local level. Many of them could be handled within the 16 Unit with the expertise that's there. Many of them may 17 provide formative information to an individual to help 18 improve their practice, but -- but there has to be a 19 mechanism for those concerns to move along to a higher 20 level, depending on the severity, I think. 21 MS. LINDA ROTHSTEIN: All right. Dr. 22 Yarrow, I want to turn to you, and deal with one (1) of 23 the -- one (1) of the sort of paradigms that has arisen 24 as a result of our review of the cases in this -- in this 25 Inquiry, and that is the problem of regulating the
161 conduct of a health care provider who is an expert, an 2 expert witness. And the critique is around the quality 3 of the evidence that that expert gives, either in a 4 report, or even in testimony before a tribunal, or Court. 5 I understand that your college is often 6 engaged in having to deal with that paradigm, and I'm 7 hoping that you can tell the Commissioner a little bit 8 about what that experience has taught the College of 9 Psychologists about the difficulties of regulating in 10 that area. 11 DR. CATHERINE YARROW: Well, I guess the 12 -- the first challenge is anyone against whom such a 13 complaint is lodged may raise the concern that they're 14 not really providing psychological service in the 15 traditional sense; that they don't have a direct client, 16 or a patient relationship with an individual on whom 17 they're providing an opinion. 18 Some of those opinions may be based on a 19 direct evaluation of an individual; some of them may be 20 based on file review, or a review of someone else's work 21 in relation to the individual. 22 But the College still maintains the view 23 that, regardless, there's a duty to be competent to do 24 the work that is being undertaken and to be aware of 25 whether or not one has the competence to do that work; to
171 be objective, again, regardless of whom you think is your 2 client; to gather adequate information and to reach a 3 reasonable conclusion based on the information; and to 4 use sources of information that are well grounded in the 5 research literature, preferably within our own 6 profession; and to acknowledge any limitations on your 7 opinion, regardless of what sources you use; to be aware 8 that there may be constraints based on the information 9 that's been gathered, or on your own abilities and to be 10 able to acknowledge those things. 11 If we find complaints about substandard 12 assessments or opinions, where there's a question of 13 competence or simply not meeting appropriate standards 14 we're more likely to address that in a remedial kind of 15 way, whereas if there seems to be more of a concern about 16 competence of unwilling -- or not competence -- rather 17 compliance, or conduct, or unwillingness to recognise 18 limitations on the individual's competence or 19 appreciation of the standards, then we might deal with 20 that rather differently. 21 MS. LINDA ROTHSTEIN: Now, you've used 22 the word "standards" twice. 23 DR. CATHERINE YARROW: Mm-hm. 24 MS. LINDA ROTHSTEIN: Do you have written 25 standards that's set out for your members how they go
181 about the process of opinion writing? 2 DR. CATHERINE YARROW: The College has 3 more generally what it calls standards of conduct, and 4 again, the key things that I've talked about: providing 5 services only for which you're competent to provide the 6 service; maintaining objectivity in the provision of 7 service; you know, meeting standards in the field. 8 We have a general expectation that if 9 there are published standards, for instance, in the area 10 of custody and access assessments, the profession has 11 developed standards around those assessments and we 12 expect our members to be aware of those and to pursue 13 those standards or to have a good reason why they would 14 not in a particular case. 15 MS. LINDA ROTHSTEIN: And if a complaint 16 comes in the door, that a member has improperly done a 17 custody and access assessment, for example, a complaint 18 by one (1) of the parents that the member has not been 19 objective, or has come to the wrong conclusion, or didn't 20 do the right number of site visits -- I'm not sure 21 exactly how it works -- how du -- how do you at the 22 College assess the merits of that? Is that something 23 that you use experts to help you assess? 24 Can you -- can you tell us a bit about 25 that, please.
191 DR. CATHERINE YARROW: We do. We 2 wouldn't necessarily expect that the Complaints Panel 3 that would consider that matter would have sufficient 4 expertise in its own right. And we do engage experts; 5 someone who does not have an apparent conflict of 6 interest with the member who's under scrutiny. 7 So we would expect it to be someone who 8 hasn't routinely been testifying on the other side in 9 cases against this member or who perhaps practices in a 10 somewhat different geographical part of the province, but 11 nevertheless has expertise in the area. 12 MS. LINDA ROTHSTEIN: One (1) of the 13 things we've heard from the forensic pathologists who 14 have come here from outside Canada is that there are, 15 from their perspective, inherent frailties in allowing 16 general practitioners to assess the competence, if you 17 will, of those who are in a very specialised area of 18 practice, and that they lack in -- in effect the 19 expertise that some of you spoke of earlier; they lack 20 the subject matter expertise, anyway, to be able to 21 fairly assess the competence of the member whose conduct 22 is impugned. 23 What's your experience of that, and what 24 do you think about that, Dr. Yarrow? 25 DR. CATHERINE YARROW: Well, our
201 complaints panels more typically would have people who 2 were general practitioners or even specialists in other 3 areas, along with lay individuals, and then have the 4 benefit of the expert witness to tell them more 5 specifically what's expected in that particular area. 6 And there's some general principles that 7 you would expect of anyone conducting assessments or 8 giving opinions. And I think even those who aren't 9 expert in that area can at least evaluate, to some 10 degree, whether it appears that there's been a reasonable 11 effort to acquire appropriate information and to use it 12 and apply it in an objective manner, and then of course 13 you have the benefit of the specific expertise of someone 14 that would be brought in to assist the panel. 15 MS. LINDA ROTHSTEIN: Dr. Gerace, you're 16 aware of that critique, if you will, of the general 17 medical regulator trying to assess with any kind of 18 precision the competence of a forensic pathologist, let 19 alone a pediatric forensic pathologist. 20 With -- leaving aside that specific 21 paradigm, what's the experience of the CPSO now in 22 evaluating opinion evidence of specialists, and to what 23 extent do you think this general medical licening -- 24 licensing body is indeed capable to do that work? 25 DR. ROCCO GERACE: Well, again, there is
211 a spectrum and the spectrum might begin with a 2 behavioural issul -- issue within the context of giving 3 evidence, so entirely unrelated to the subject matter. 4 But it moves on from there to -- to highly 5 specialized work; highly specialized information in the 6 subject matter. And indeed we -- we face that 7 frequently. The practice of medicine is broad-based, 8 multi-specialty. No single panel is able to know 9 everything about everything in medicine and so we have -- 10 we utilize the profession. And the profession will 11 provide expertise in the particular subject area. 12 So, for example, we will get, not 13 infrequently, obstetrical concerns brought to us. We 14 have a standing obstetrical panel made up of academics, 15 specialists, community specialists, family doctors 16 engaged in the practice who consider those focussed 17 concerns around delivery of obstetrical care. 18 And when there are other things even more 19 -- more specialized, we will go to -- to experts in the 20 field. Occasionally, with very -- a very small 21 community, we'll go outside the jurisdiction to get that 22 information, to get that expertise to provide advice to 23 the panel; to provide an opinion, if you will, to the 24 panel. Really no different than an expert witness in the 25 courtroom who will provide their perspective on the case.
221 So I think from my perspective, there has 2 to be regulation of the practice of medicine; that's best 3 done through the regulatory body who will, in turn, seek 4 out the expertise necessary to make those decisions. 5 COMMISSIONER STEPHEN GOUDGE: And would 6 the expertise, Dr. Gerace, testify live in front of the 7 panel hearing the case? 8 DR. ROCCO GERACE: Again, it would be 9 depend on the case and -- and what the matter is. 10 Certainly if it -- if it proceeded to a disciplinary 11 hearing, the expert would be expected to come in and 12 provide testimony -- 13 COMMISSIONER STEPHEN GOUDGE: And the 14 testimony would speak to the standard of practice in the 15 expertise? 16 DR. ROCCO GERACE: Yes. 17 18 CONTINUED BY MS. LINDA ROTHSTEIN: 19 MS. LINDA ROTHSTEIN: And help us 20 understand where the obstetrics panel sits in relation to 21 the Complaints Committee and its work. 22 Is it giving advice to the Complaints 23 Committee? 24 DR. ROCCO GERACE: It will give advice to 25 the Complaints Committee. It will review a particular
231 matter and determine whether or not the standard of care 2 was met; provide that advice to the Committee. If there 3 is egregious -- perceived egregious conduct or standard 4 of care, then that would proceed, perhaps not using the 5 panel, but -- but getting yet another external expert if 6 that is moving toward a disciplinary process. 7 MS. LINDA ROTHSTEIN: A couple of other 8 things arising out of what you've told us. 9 Firstly, when you tell us that forensic 10 pathology isn't the only specialty in medicine where 11 concerns get raised about the quality of an opinion, an 12 expert opinion that is given by a physician, a question 13 arises: 14 Does the College have any written 15 standards at all about the way in which physicians are to 16 provide expert opinions to any court or tribunal or third 17 party about the need for objectivity? The kinds of 18 things Dr. Yarrow says are part of the general standards 19 of psychologists, whatever their specialty. 20 DR. ROCCO GERACE: We do not at -- 21 MS. LINDA ROTHSTEIN: Okay. 22 DR. ROCCO GERACE: -- this point. 23 MS. LINDA ROTHSTEIN: Do you see that as 24 being useful? 25 DR. ROCCO GERACE: Oh, I think so. I
241 think so. There's certainly a number of -- of bodies who 2 have prepared such documents, various specialty bodies, 3 in the US primarily, that were actually sent to me as 4 part of this hearing. So they exist, but we've not -- 5 we've not incorporated them. 6 COMMISSIONER STEPHEN GOUDGE: Do any of 7 them, Dr. Gerace, go beyond the preparation of opinions 8 and speak to how the witness actually gives those 9 opinions in a contested proceeding? 10 That is, how you give evidence if you're 11 called on as an expert in a -- in a contested proceeding. 12 DR. ROCCO GERACE: I believe so. I've 13 not reviewed them in detail -- 14 COMMISSIONER STEPHEN GOUDGE: Yes. 15 DR. ROCCO GERACE: -- but I believe the - 16 - the depth to -- into which they go to to describe 17 varies. But in some of them they do. 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 I took it, Dr. Yarrow, that the psychologists do actually 20 consider themselves to police the way evidence is given 21 as something that is an adjunct to the way reports are 22 prepared. 23 Is that right? 24 DR. CATHERINE YARROW: Well if we receive 25 a complaint that someone in presenting their testimony
251 appears to be acting in a biassed or inflammatory way, 2 for instance, or presenting one (1) side of the 3 situation, we would certainly look into that. 4 But our standards don't explicitly and 5 specifically address expert testimony; they really 6 address more the general provision of assessment services 7 and opinion services. 8 COMMISSIONER STEPHEN GOUDGE: In 9 assessing the testimony, how do you account for the 10 tensions produced by the adversarial nature of the 11 Hearing process? 12 DR. CATHERINE YARROW: Well, the 13 Committee does have access to any information that the 14 member can provide. In terms of the context in which 15 things occurred, we will obtain transcripts of the 16 testimony. 17 And there have been situations where there 18 was a complaint made and on further review of the process 19 and the transcript, the Complaints Committee concluded 20 that there wasn't any breach of our standard, and there 21 wasn't a need to take additional action. 22 So they do their best to get whatever 23 related information that's available. 24 COMMISSIONER STEPHEN GOUDGE: So 25 hypotheticals like ones we have heard about as actuals in
261 this hearing, where an expert psychologist is invited to 2 speculate in response to a hypothetical and speculates in 3 a way that if, in an original report it had appeared, 4 might be unprofessional, is that okay? 5 DR. CATHERINE YARROW: It would -- so 6 long as he qualifies that speculation, you know, and it's 7 -- we'd expect the psychologist to try and function on 8 his feet, and it's not always easy in that context. But 9 to try and qualify an opinion -- 10 COMMISSIONER STEPHEN GOUDGE: Is there 11 formal education about that? 12 DR. CATHERINE YARROW: No, not -- not 13 that I'm aware of. I think it varies -- 14 COMMISSIONER STEPHEN GOUDGE: Is it fair 15 to hold them to account if they haven't been taught? 16 DR. CATHERINE YARROW: That's -- that's 17 why we really look at the context because they haven't 18 been formally trained, but we do expect them to try to 19 remember to indicate that this is an opinion and it has-- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. CATHERINE YARROW: -- limits based on 22 the information presented in front of them. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 25 CONTINUED BY MS. LINDA ROTHSTEIN:
271 MS. LINDA ROTHSTEIN: Professor Sossin, 2 you had some comments? 3 DR. LORNE SOSSIN: Well, I mean, I think 4 a lot of discussion that's unfolding really circles 5 around one of the toughest issues in working out the 6 complaints process and the relationship between bodies, 7 which is, where does the practice of medicine begin and 8 end in the context of a death investigation. 9 So for example, the UK system, you've 10 heard a fair bit about the Home Office registry of 11 forensic pathologists and disciplinary process has a 12 provision where if the Discipline Committee of that 13 forensic pathology body is presented with a case that 14 turns on medical competence and the language they use is: 15 "Medical competence or does not pertain 16 to the criminal justice system or the 17 fitness of a pathologist to remain on 18 the registry." 19 That complaint should be referred to -- in 20 the UK, it's the General Medical Council or their Royal 21 College of Pathologists. So in these other 22 jurisdictions, and I think this is what the Australians 23 were getting at as well in -- in their own way, is they 24 simply see death investigations as involving some aspects 25 of the practice of medicine.
281 And then a range of functions and duties 2 that are not the practice of medicine and for which it's 3 not that -- that a medical regulator couldn't undertake 4 that. As you've -- you've heard already, they have the 5 ability to obtain whatever expertise the Complaints 6 Committee lacks, but the question is what's the right 7 fit. 8 So if you look at the way, I think, the 9 CPSO now views its jurisdiction in relation to coroners, 10 the Act mandates that all coroners be physicians, and the 11 CPSO would take the view, I believe, that whatever 12 actions are then undertaken by coroners in their 13 professional capacity, given that coroners must be 14 physicians, must also be subject to a potential oversight 15 by the CPSO. 16 Well, that would take the medical 17 regulator into fields that are, if not purely legal, 18 primarily legal decisions, for example, to have another 19 police force conduct investigations out of concern of 20 conflict with one. I mean, there's just very little 21 about that kind of determination that would be a good 22 fit, I would suggest, for a medical regulator. 23 But where there is our medical standards 24 at issue, I -- I think it's -- it's clear that the 25 expertise and institutional infrastructure capacity of
291 the CPSO has to have some bearing on both coroners and 2 forensic pathologists. So to -- in -- in my view, I 3 suggest the real issue is going to be, how do you 4 separate out medicine from the other activities going on, 5 and -- and what are the downside risks of trying to 6 create that kind of hybrid model for complaints. 7 Certainly from the perspective of the 8 complainer, you wouldn't want them to have to make a 9 call, was this a medical mistake or a non-medical 10 mistake. There has to be a -- a single point of contact, 11 one would imagine, for the complainant if the system is 12 going to be effective and meet the other standards that - 13 - that the other speakers have set out. 14 COMMISSIONER STEPHEN GOUDGE: To use an 15 example, Professor Sossin, we heard a lot about, 16 obviously, where would you place the giving of evidence 17 in your spectrum of the practice of medicine or not? 18 DR. LORNE SOSSIN: You know I think this 19 is a very important question. I mean, the giving of 20 evidence -- if you look at the UK model for example, 21 would seem to suggest the engagement with the criminal 22 justice system and to be a -- an area where the forensic 23 pathology body specifically would have the right 24 expertise. 25 As you've been hearing, however, there are
301 other physicians who give expert testimony in court 2 settings and you might think if the CPSO, for example, 3 were undertaking standard setting initiatives and 4 developing their capacity around this context, it would 5 seem odd to hive off forensic pathologists from that kind 6 of coverage. 7 So it may be contextual, and it may be 8 that what forensic pathologists, and potentially coroners 9 are doing in those settings, is simply different than 10 other physicians. 11 But I would have said to start with, that 12 looks like something beyond the practice of -- of 13 medicine, and veering into something that is specific to 14 the forensic pathology context. 15 MS. LINDA ROTHSTEIN: Dr. Gerace, I want 16 to give you a chance to respond, both to the concern 17 about where the giving of evidence fits, and how 18 difficult it will be, in fact, to regulate in that area, 19 and whether you actually have some experience now that 20 you didn't when these issues first came to the CPSO's 21 attention many years ago. 22 And also the concerns that Dr. Sossin has 23 raised about the regulation of coroner's conduct which 24 one could look at as seeing -- to be very divorced from 25 medical Acts, as such.
311 DR. ROCCO GERACE: Well I think 2 physicians have a range of responsibilities. It -- it -- 3 traditionally it is an interaction between an individual 4 patient, and an individual doctor, but the 5 responsibilities of doctors have expanded to including 6 pro -- provision of expert testimony. 7 And I think when one looks at expert 8 testimony, there are two (2) components to it: One (1) 9 is the subject matter, and the expertise, and whether or 10 not an individual firstly has the expertise, and provides 11 testimony within that expertise; and the second is their 12 behaviour. 13 And there's no question that we have dealt 14 with, on more than one (1) occasion, physicians who have 15 -- who -- who have misrepresented their credentials, for 16 example, so the behavioural component of providing 17 testimony. 18 In one (1) case, there was a disciplinary 19 Hearing, and -- and this individual no longer does 20 medicolegal work, or provide testimony as a result of 21 that. 22 So -- so the behaviour of doctors goes far 23 beyond the provision of a med -- of medical care. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. ROCCO GERACE: We -- we --
321 COMMISSIONER STEPHEN GOUDGE: That is 2 sort of a good character thing, almost. 3 DR. ROCCO GERACE: Absolutely. 4 Absolutely. So we -- we have taken doctors to discipline 5 for criminal acts -- 6 COMMISSIONER STEPHEN GOUDGE: Right. 7 DR. ROCCO GERACE: -- that were outside 8 the physician/patient relationship. We've taken doctors 9 to discipline for spousal abuse, which -- which is 10 criminal. 11 So a number of areas that relate to their 12 conduct. And, so if -- if in the context of a coroner, 13 if a coroner has to be a doctor, then they have to have - 14 - there has to be some regulatory oversight of that 15 coroner. 16 If it is a narrow issue of the law, we 17 would get expertise. If they provided that in a way that 18 was unprofessional, then I think that absolutely is a -- 19 a matter that is to be dealt with by the regulatory body. 20 The College is not -- we will not get 21 expert physicians to opine on the legal issues of a -- of 22 a complaint, but nor would, I think, we would -- would we 23 be asked to do that. Or if we did, we would get the 24 expertise that's necessary. 25 The reality is, whatever doctors are
331 called upon to do, being doctors, presumably there is a 2 connection, and there will be those who can provide 3 expert testimony to us to give us an opinion, whether or 4 not they've met an appropriate standard. 5 And we do it frequently, and -- and I'm 6 not sure that we want to -- we want to fragment the 7 regulation of the medical profession. 8 There may be other measures in place 9 beforehand but, ultimately, if -- if a doctor is working 10 as a coroner, and has to be a doctor to do so, then -- 11 then we have some involvement because that individual is 12 a doctor by virtue of gaining a Certificate of 13 Registration from the College. 14 So there is a nexus, and there always will 15 be. 16 COMMISSIONER STEPHEN GOUDGE: And giving 17 expert evidence is giving evidence as a doctor. 18 DR. ROCCO GERACE: Quite right. 19 COMMISSIONER STEPHEN GOUDGE: Yes. But I 20 took from what you said to Ms. Rothstein earlier that the 21 College does not have guidelines specifically directed to 22 how one gives expert evidence in the exercise of one's 23 professional competence. 24 DR. ROCCO GERACE: That's correct. 25 COMMISSIONER STEPHEN GOUDGE: But I think
341 you acknowledged that that would be helpful. I mean, let 2 me give an example that we used last week, or that one 3 (1) of the forensic pathologists from Australia used last 4 week. 5 And that is the dilemma of the expert 6 witness, who is put a hypothetical, went on the witness 7 stand, and invited to respond immediately. 8 If the question had arisen in the office, 9 the professional would say I would like to think about 10 that, and I will give you a response when I have thought 11 about it. 12 On the witness stand, the pressure to 13 answer immediately is significant. The answer is given. 14 It probably does not qualify as the meeting of a 15 professional standard in the practice sense, but at least 16 he is understandable in the context of he did court 17 proceedings. 18 How is the professional going to know what 19 to do without guidelines? 20 DR. ROCCO GERACE: Well just -- just 21 looking at guidelines generally, again the practice of 22 medicine is extremely diverse. Any particular doctor 23 could be in a host of situations. If we made an attempt 24 to produce a guideline for every circumstance in which a 25 physician found themselves and updated them --
351 COMMISSIONER STEPHEN GOUDGE: Fair 2 enough. 3 DR. ROCCO GERACE: -- we wouldn't have 4 the resources to do all of the other stuff we're -- 5 COMMISSIONER STEPHEN GOUDGE: You'd have 6 a -- 7 DR. ROCCO GERACE: -- supposed to do. 8 COMMISSIONER STEPHEN GOUDGE: -- manual 9 that was too thick. 10 DR. ROCCO GERACE: It would be -- well, 11 yes, bankers boxes full. So -- so we have to pick our 12 battles. 13 This clearly, this whole Inquiry, has 14 raised this issue as one of concern. But again, within 15 the spectrum of medical practice, providing expert 16 testimony is a very, very small piece. 17 And so do we not collectively, perhaps, as 18 legal counsel and the judiciary, have an obligation to 19 experts of all sorts, to outline what their 20 responsibility is? 21 In my point -- 22 COMMISSIONER STEPHEN GOUDGE: Oh 23 absolutely. I mean, I'm not suggesting that other 24 players in the system don't have significant 25 responsibility --
361 DR. LORNE SOSSIN: But -- 2 COMMISSIONER STEPHEN GOUDGE: -- as well. 3 DR. LORNE SOSSIN: Sorry. I think that 4 also makes the case that those who like the idea of a 5 complaints mechanism that is part of the death 6 investigation process, in addition to the medical 7 regulator, rely on. Because they would say for the 8 medical regulator this will inevitably be a very small 9 area of concern, whether it's giving testimony or the 10 interaction with the criminal justice system in a number 11 of ways, and that's appropriate. 12 So to ask the medical regulator to devote 13 substantial resources to this would be an odd request, 14 given their general public interest in the number of 15 areas where patient safety and public interest concerns 16 are going to be paramount over their allocation of 17 resources. 18 But a death investigation complaint system 19 would see the interaction with the criminal justice 20 system as a primary area of interest and concern, both in 21 developing training, quality management, and oversight. 22 And this is an argument that I -- I accept and I agree 23 with. 24 You know, the concern, if you take to the 25 logical conclusion, every area could make this case and
371 you'd end up with a fragmented, expensive -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. LORNE SOSSIN: -- inefficient system. 4 So I think the real question is: Is this different 5 enough given that you're not dealing with patient care in 6 -- in most circumstances? 7 Although, I'd -- I'd add some death 8 investigations, of course, include the doctors providing 9 care up until the point of death and then beyond, so I 10 don't want to create black and white dichotomies. But 11 his is different enough. 12 And its interaction with others on a team, 13 be it police officers, prosecutors, child protection 14 officers, forensic scientist, is there enough about that 15 collaborative approach and enough about the death 16 investigation process as a process, to suggest that it 17 needs its own complaint-based model, even if that will 18 overlap or duplicate with physicians? Which, again, is 19 not necessarily a bad thing. 20 We talked about police officers who are 21 subject to multiple oversights: civilian disciplinary, 22 other Ministries. You can look at the securities lawyer 23 who might be brought up on -- on a Securities Commission 24 prosecution, and then the result of which is the Law 25 Society is going to say, Do we want this person still
381 having a practice -- licence to practice law? 2 You can imagine something similar. If 3 there were forensic pathologist investigation showing 4 real misconduct or concern, it may well be that the 5 medical regulator would take that as basis to conduct its 6 own investigation or vice-versa. So its gate-keeping and 7 coordination may in fact be the more interesting problem 8 if you have a hybrid model down the road. 9 COMMISSIONER STEPHEN GOUDGE: I guess one 10 (1) of the dimensions I was implicitly concerned about in 11 my conversation with Dr. Gerace, Professor Sossin, was if 12 fairness is part of the complaints process, any 13 complaints process, how is the individual professional to 14 know what's expected in the evidence-giving context; 15 whoever does the discipline; that is, whether it's the 16 professional regulator? 17 You say, Well there's not enough business 18 to warrant the publishing of the "thou shalts" for this 19 part of the business. What's the professional to do? 20 DR. LORNE SOSSIN: Well, I think -- 21 COMMISSIONER STEPHEN GOUDGE: At least if 22 fairness runs to that extent. 23 DR. LORNE SOSSIN: Well, I think that is 24 -- there's a fairness question and there's also an 25 accountability question. In other words, you don't want
391 to create incentives for there to not be the development 2 of more guidelines and more specificity. 3 We've seen post-mortem examination 4 guidelines of a fairly recent vintage developed in the 5 last ten (10) or fifteen (15) years and refined. And I 6 think the more you have of those kinds of guidelines -- 7 and even though they may be non-binding -- standard 8 setting initiatives, it not only provides more of a basis 9 for the professional to know what's expected of them, it 10 provides more of a basis for those affected to know when 11 they in fact are encountering someone falling below those 12 standards, or at least allows them to make the argument. 13 If you have no guideline and you say, I 14 think you got that -- I think you came to the wrong 15 result in that death investigation, it's extraordinarily 16 difficult for an affected party to -- to mount a case in 17 a complaint system where there are no written standards 18 and there is no consensus in a profession community 19 that's been memorialized or captured in that way. 20 MS. LINDA ROTHSTEIN: Professor Gilmore, 21 it was about ten (10) minutes ago that you caught my eye. 22 And before I get each of you to respond to two (2) of the 23 new issues that have been raised -- what the difficulties 24 are of multiple regulators and what the importance or 25 value is of codes of conduct or guidelines -- is there
401 anything you wanted to add before we get to those two (2) 2 juicy questions? 3 DR. JOAN GILMOUR: Just a couple of -- of 4 points. I think if you go back to sort of basics, when 5 you think about the reason that coroners have the 6 authority they do, aside from the statutory requirement 7 that a coroner be a physician, the reason that an expert 8 witness has the authority that he does is -- is because 9 of the authority that comes with him as being a member of 10 that particular profession, and that's the reason they 11 have the power to give compelling testimony. 12 So you look back to then that particular 13 profession as having a legitimate voice and obligation to 14 control the conduct of that member, and therefore a 15 legitimate presence in dealing with complaints about what 16 that member has done. 17 That said, if we go to the general topic 18 of death investigations that Professor Sossin has raised, 19 you can see that that may involve someone who is a member 20 of a particular profession and my also involve many other 21 types of -- of people. And in that sense may require a 22 different type of complaints mechanism that has a 23 jurisdiction that's not limited to the silo of medical 24 professionals or the silo of police, but actually has a 25 cross-cutting jurisdiction that is able to deal with all
411 of those types of -- of backgrounds and -- and 2 responsibilities, which may lead into your multiple 3 regulatory overlap question. 4 MS. LINDA ROTHSTEIN: All right. But 5 just before we do that one, I want to -- I want to ask 6 you, Dr. Yarrow, what -- looking at sort of the years of 7 experience you've had regulating your members -- you can 8 tell us about what you think the value is on the ground, 9 for your members on the one (1) side and for the public 10 on the other, of having codes of conduct, guidelines in 11 writing; hearing what Dr. Gerace says, that you can't 12 write down everything that you expect your members to do, 13 and though shall not steal is one (1) of those that you 14 just never have to write down. 15 Understanding all of that, what you 16 actually think the value is, because we've had some 17 scholars tell us that they think it's really symbolic and 18 way too much importance gets placed on memorializing what 19 the conduct should be for a particular exercise of 20 professional judgment. 21 DR. CATHERINE YARROW: Well, I will say 22 that our own college has not gone the length of 23 developing specific guidance for every different area of 24 practice or activity that our members would engage in. 25 And the concern not only would be the resource issue, but
421 mo -- would be the greater concern would be the challenge 2 to the college to keep that all current. 3 And so we expect members to be current 4 with their own area of practice. There's certainly a 5 wide literature within the profession in the various 6 areas, so we expect a lot of the specifics to come out of 7 those areas. 8 However, we have found that our standards 9 of professional conduct have been very useful and our 10 members are quite interested and knowledgeable, for the 11 most part, of those standards of professional conduct. 12 And we've even developed a practice advice function at 13 the College to assist members in interpreting the 14 standards of professional conduct, where the standards 15 are more specific, not to activities, but the level or a 16 type of conduct expected. 17 There is also the additional code of 18 ethics that the Canadian Psychological Association has 19 promulgated, and it's really intended to assist 20 professionals in dealing with ambiguous situations, where 21 the standards of professional conduct don't clearly 22 address a novel situation that might arise. And it's 23 based actually on a decision making process and can be 24 quite helpful. 25 It -- it's not something that you could
431 apply instantaneously -- it involves more thought and 2 consideration and consultation by the members -- but it's 3 -- it's intended to provide guidance for a broader range 4 of circumstances. 5 MS. LINDA ROTHSTEIN: Professor Gilmour, 6 any comments about whether codes of conduct or ethics of 7 guidelines do anything more than play a symbolic role in 8 regulating professionals? 9 DR. JOAN GILMOUR: Starting with codes of 10 ethics, I think that that is a useful -- certainly useful 11 thing for professions to develop. To have ethics 12 incorporated you need, I think, to have an educational 13 process that makes that part of a professional's way of 14 thinking about problems; that's as true for lawyers as it 15 is for any other profession and -- and that should be a 16 concern. 17 And so it becoming real and part of that - 18 - how that professional operates has as much to do with 19 the education as the fact that a code of ethics exists. 20 In terms of guidelines, what to do in a particular 21 situation, I agree it's going to be very difficult to 22 develop a compendious list of guidelines and it's very 23 difficult also to keep it up-to-date. 24 And so in that sense, guidelines can be 25 useful at a more general, but unfortunately therefore
441 necessarily more abstract level. It would be difficult 2 to have one that's going to respond to everything that 3 comes up. 4 What happens if somebody puts a 5 hypothetical to you as you are giving testimony, and if 6 it's, you know, this hypothetical as opposed to that 7 hypothetical, it's going to be very hard to have that 8 kind of instruction book about what to do or what's 9 allowed or not allowed as a response, particularly when - 10 - for health professional they're in -- and I think even 11 for forensic pathologists, they're in a milieu that's not 12 their own when they're in a court. 13 MS. LINDA ROTHSTEIN: Dr. Gerace, you've 14 heard Professor Sossin articulate the view that there 15 needs to be at least in addition to the CPSO's regulation 16 of forensic pathologists, something that responds to the 17 systemic concerns of the public about the death 18 investigation system; a complaint mechanism that allows 19 them to really make clear that there was some failing in 20 the death investigation system as a system. 21 How -- how -- what problems does that 22 create for the CPSO as a regulator, if any? 23 DR. ROCCO GERACE: I don't think there's 24 a problem provided the one proviso that Professor Sossin 25 mentioned, that there'd be continuity with the regulator.
451 Currently, within hospitals there are 2 complaints processes. They are dealt with -- where the 3 breakdown occurs is when there is egregious behaviour 4 that that behaviour is not reported to the College. And 5 so if -- if this behaviour transcends that narrow area of 6 practice -- and -- and indeed I would suspect in Ontario 7 many forensic pathologists will have general pathology 8 practice as well -- there will be no way of knowing 9 whether or not the -- the problem, if there is a problem, 10 is more systemic. 11 And -- and the only way that can happen is 12 if there is free communication between the various 13 parties, so communication between this unit, the 14 regulator, the hospital, if relevant, and -- and I think 15 that's where the breakdown tends to occur. I can tell 16 you it simply doesn't happen and -- and that has created 17 problems. 18 The second part is we deal with a 19 complaints process as a reaction to a particular issue, 20 and -- and I'm sure Professor Gilmour will want to 21 comment more on this, but we really have to look at the 22 complaints process as a formative process, as an 23 educational process. The vast majority of problems that 24 occur -- and I can tell you from the practice of 25 medicine, everybody makes mistakes; it doesn't make them
461 bad people. They make mistakes and the value of that, if 2 any, is to learn from those mistakes and move forward. 3 And so the process should be formative in 4 some way to -- to teach the doctor or the professional or 5 whomever what to do next as -- as opposed to a punishment 6 that will then drive these issues underground. 7 The third part is -- is while we're fro -- 8 focussing on complaints, there really has to be, I think 9 -- and this will take us to another level -- an active 10 form of regulation; an educational process, ongoing 11 assessment, not when there's a problem, but to avoid the 12 problems occurring. And -- and we tend to be moving in 13 that direction, but we keep getting drawn back to a 14 complaints process, a reactive process; not that there 15 shouldn't be one, but the focus should move beyond a 16 complaints process. 17 And having an educational process for 18 forensic pathologists, neurosurgeons, whomever, that's 19 where -- that's where the money is, and that will, I 20 think, best protect the public interest. 21 COMMISSIONER STEPHEN GOUDGE: Can I just 22 ask a couple of questions, Dr. Gerace? 23 I mean, that's a very clear outline of a 24 variety of purposes that a complaint's process we've 25 heard, not just the individual case, but the correction
471 of the practice, looking forward, and the education 2 component that might go with it. 3 Can a complaints process accommodate -- 4 and here I am obviously speaking in the context of a good 5 deal of the history that we heard about the 1980s -- can 6 they accommodate a circumstance where there is a 7 complaint about an individual, a professional, in a 8 particular case that rises to the level of a concern 9 about the individual's work in a whole lot of prior 10 cases? 11 Is the complaints process able to 12 accommodate an examination of prior cases in which there 13 has been no complaint? 14 DR. ROCCO GERACE: Yes. 15 COMMISSIONER STEPHEN GOUDGE: And, so you 16 -- it would be possible for a complaint to be brought 17 saying there is a complaint that is sufficiently serious, 18 I think you regulators should look at the prior cases of 19 this professional? 20 DR. ROCCO GERACE: Well, we do that 21 internally currently. So if -- if there is a particular 22 complaint that goes in front of the Complaint's 23 Committee, and the panel says, This -- this may just be 24 the tip of the iceberg, there is a process by which that 25 concern can be brought to another committee, where there
481 is a more expanded investigation, to look at the systemic 2 practice issues. 3 Not commonly done, but -- but that process 4 exists, and I think it's -- it's critically important, if 5 a complaints process is going to be effective, you -- you 6 really can't just look at isolated incidences. Often 7 that's all that's necessary, but there has to be that 8 ability to move beyond. 9 COMMISSIONER STEPHEN GOUDGE: And who 10 makes the judgment that prior cases need to be examined 11 as well, given the conduct that has occurred in the 12 particular case? 13 DR. ROCCO GERACE: Well, currently within 14 legislation -- 15 COMMISSIONER STEPHEN GOUDGE: How does it 16 happen now? 17 DR. ROCCO GERACE: -- it happens now, the 18 Complaints Committee will raise a concern, that 19 information is put in front of me, the Registrar -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. ROCCO GERACE: -- to see if there are 22 reasonable and probable grounds for a -- for a broader 23 investigation. It in turn is put in front of another 24 committee to approve investigators. 25 So there are multiple steps, checks and
491 balances if you will, to ensure that we're not going off 2 on wild goose chases. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 5 CONTINUED BY MS. LINDA ROTHSTEIN: 6 MS. LINDA ROTHSTEIN: And -- and Dr. 7 Gerace, just while we're dealing with the way the current 8 Act works, if, to take a different paradigm, instead of 9 getting a complaint that starts your process, you get a 10 report from a hospital suggesting that, for example, a 11 physician's privileges have been restricted in some way, 12 or indeed he or she is not being reappointed, that comes 13 to you as the Registrar, as I understand it? 14 DR. ROCCO GERACE: That's correct. 15 MS. LINDA ROTHSTEIN: And how broad based 16 would your investigation then be of that physician's 17 context, if that's the triggering event? 18 DR. ROCCO GERACE: That would generally 19 generate a much broader based investigation when we get 20 the reports. Unfortunately they're few and far between-- 21 MS. LINDA ROTHSTEIN: So we'll come -- 22 we'll come back -- 23 DR. ROCCO GERACE: Thank you. 24 MS. LINDA ROTHSTEIN: -- to that for 25 sure. And just while we're on it as well, does Bill 171
501 provide you with any sort of greater scope, wider tools, 2 to look not just at an individual complaint, but at the 3 broad practice of members, or not? 4 DR. ROCCO GERACE: I think Bill 171 5 allows a better integration of concerns that are brought 6 forward. In the past, it would not be unusual for a 7 matter to be reported to us by a coroner, for example, 8 around the practice of a physician. That would go down 9 one (1) route. The family would lodge a complaint. That 10 would go down another route. 11 There was a time many years ago when the 12 two (2) routes were not that -- talking to each other 13 that well, and might get two (2) different outcomes, 14 potentially. 15 Bill 171 brings the screening committee 16 together as one (1) committee, the ICR Committee, and so 17 I think it will integrate the information, and allow that 18 inter -- information to be dealt with more broadly, 19 rather than in silos. 20 MS. LINDA ROTHSTEIN: Dr. Yarrow, is that 21 your sense, too, about how the sort of merger, if you 22 will, of the Complaints Committee, and the Executive 23 Committee will assist in -- in looking at members 24 conduct? 25 DR. CATHERINE YARROW: It will. It was
511 unfortunately quite cumbersome, the system we've had up 2 until now, where the Complaints Committee had to refer to 3 the Executive and a separate investigation be set out. 4 And now to at least have one (1) committee seized of the 5 matter who will think about the various issues that may 6 be involved, and then can triage that to be dealt with in 7 the -- to the appropriate panels, or the appropriate 8 parts of the College -- but it's useful to have that in 9 one (1) place. 10 And I think it's even preferable to have a 11 lot of that work being done by a committee, and not just 12 the Registrar trying to sort that out. 13 MS. LINDA ROTHSTEIN: Okay. 14 COMMISSIONER STEPHEN GOUDGE: Can I just 15 ask both of you: If the broader investigation that 16 results from the concern that's arisen in a particular 17 case that yielded a complaint, Dr. Gerace, shows a bunch 18 of problems in prior cases, what's the scope of 19 consequence that can flow from that? Obviously 20 consequence to the individual professional, but let me 21 put in the context of the forensic pathologist. 22 Prior cases, there may be an impact on the 23 justice system; would the regulators be able to disclose 24 the information that had been uncovered in the broader 25 investigation to the justice system in some fashion?
521 DR. ROCCO GERACE: I would have to get 2 advice on that, but my sense is, based on confidentiality 3 provisions within the RHP, that might be difficult. 4 COMMISSIONER STEPHEN GOUDGE: Do you 5 contact patients, for example, in prior cases where no 6 complaint has been made? 7 DR. ROCCO GERACE: We look at patient 8 records more -- more -- 9 COMMISSIONER STEPHEN GOUDGE: Suppose you 10 find that your broader-based investigation has determined 11 mistakes made in the cases of other patients, are they 12 notified? 13 DR. ROCCO GERACE: Yes. 14 COMMISSIONER STEPHEN GOUDGE: That's -- 15 DR. CATHERINE YARROW: Yeah, we've not 16 had that situation arise so I -- 17 COMMISSIONER STEPHEN GOUDGE: I mean, 18 obviously that's a concern, given all that we've heard -- 19 DR. CATHERINE YARROW: Yeah. 20 COMMISSIONER STEPHEN GOUDGE: -- in the 21 area in which our information has come to us, is clearly 22 the justice system has a concern about prior mistakes. 23 DR. CATHERINE YARROW: Mm-hm. 24 DR. LORNE SOSSIN: There is -- I'm just 25 going to mention the home office process does contemplate
531 that the forensic pathology discipline process would 2 liaise with their Criminal Cases Review Commission and 3 pro -- and their general medical council as well. So 4 there's a provision for a series of notices that could 5 back and forth to make sure the flow of information can 6 make its way where it needs to. 7 And also this notion of can one (1) 8 complaint trigger something to be broader, is expanded to 9 not just a complaint but a judgment in a court of law, 10 media report. There are a number of things that are 11 listed as illustrative but not exhaustive, that all could 12 form -- the language they use in the home office context 13 is where the delivery board, as it's called, or the 14 Registrar, can stand in for a complainant where there is 15 a basis of a complaint, but not an actual complainant 16 who's bringing it forward. 17 And so it's seamless in that sense between 18 what we would call "reactive" or "active" or "pro- 19 active," when there's a basis for concern that's come to 20 light in any form, essentially. 21 COMMISSIONER STEPHEN GOUDGE: Right. No, 22 that's helpful. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: Dr. Gerace, just
541 before I get you to comment on the -- the difficulties, 2 if any, of having multiple regulation. 3 The other proposal that we've had, indeed, 4 it's a plan-in-the-work arguably, is that the forensic 5 pathologists create a registry system, which is similar 6 to what they've seen in England, in the home office -- I 7 think you've seen some written material about this -- 8 which would require anyone who is providing forensic 9 pathology services in Ontario to be registered on the 10 registry and to be -- to go through some process of 11 meeting certain competencies and so on. 12 What do you see as the value or indeed the 13 problems if that were to be one (1) of the other 14 structures that's created on -- in Ontario to regulate 15 forensic pathology? 16 DR. ROCCO GERACE: I think it would be 17 excellent. If -- again, if -- if we take the hospital 18 analogy: for a doctor to practice in the hospital they 19 have to apply for privileges; their -- their background, 20 their training is scrutinized and it's determined whether 21 or not they can provide that service; this is much the 22 same. 23 Their background, their training in 24 forensic pathology would be scrutinized. It would be a 25 virtual provincial institution, if you will, and there
551 would be some oversight of that, much as there is in a 2 hospital. That would be wonderful. 3 Again, if there are problems though there 4 has to be a -- a process for sharing of information with 5 the regulator around the practitioner -- medical 6 practitioner. 7 MS. LINDA ROTHSTEIN: Okay. So -- before 8 we get to the problems that you've encountered in having 9 adequate sharing -- and that's -- that's going to be a 10 challenge I take if for you as well, Dr. Yarrow, from 11 time to time -- what's the value do you see of mandatory 12 self-reporting of members, of concerns that have been 13 raised about their practice, if that were to be, for 14 example, part of being registered? 15 If it was accepted that you had to, in 16 order to be register -- registered as a forensic 17 pathologist, consent to information being shared from 18 your hospital, from your professional regulator, the 19 College of Physicians and Surgeons, and from your 20 Registrar to those bodies, would that assist you in being 21 able to regulate the conduct of that sub-specialty, 22 forensic pathology? 23 DR. ROCCO GERACE: Certainly. 24 Absolutely. 25 MS. LINDA ROTHSTEIN: Okay.
561 DR. ROCCO GERACE: Just like any other 2 practice of medicine, forensic pathology is a sub- 3 specialty of the practice of medicine and the more 4 information that's shared I think the -- the public is 5 the beneficiary. 6 MS. LINDA ROTHSTEIN: All right. You've 7 touched on this before, but we know that the Public 8 Hospitals Act imposes an obligation on hospitals to 9 report to you where there's been an application by a 10 physician for appointment or reappointment that's been 11 rejected or where the privileges of that member have been 12 restricted. 13 Is you concern about the sharing of 14 information based on that being too high a threshold or 15 is it about the application of that threshold? 16 DR. ROCCO GERACE: Well, first of all, I 17 don't think the thre -- I think the threshold is too 18 high, but -- but even so, I -- I just -- it -- it's my 19 sense that there are, in a lot of cases, failure to 20 report. 21 And we hear about them. We hear the tip 22 of the iceberg and so we can't determine the extent to 23 which that occurs, but we think it's rather pervasive. 24 And -- and we get the impression that there are rigorous 25 negotiations that occur at the hospital level between --
571 between hospital counsel, physician counsel, to -- to 2 negotiate a quiet departure from the hospital in exchange 3 for not reporting to the College. And -- and I find that 4 appalling. I think it's -- it's contrary, if not to the 5 letter of the law to the spirit of the law, but clearly 6 is not a public interest activity. 7 I can give you an example. I was just 8 reading of a doctor who had clinical problems, lacked to 9 do some training. We -- we called the hospital and said, 10 Why didn't you tell us and the Hospital Solicitor said, 11 Well, we didn't really take away that doctor's 12 privileges, they just took a leave of absence and decided 13 not to come back. Clearly there had been an 14 investigation, clearly there were issues. This doctor 15 went on to another hospital and -- and created 16 difficulties, put patients at risk. 17 These are the things that we know are 18 happening and -- and somehow we have to find a way of 19 dealing with it. 20 MS. LINDA ROTHSTEIN: Dr. -- or Professor 21 Gilmore, I know you've done some work on how you improve 22 patient safety by looking at individual accountability, 23 as opposed to system accountability. We've heard from 24 others than Dr. Gerace, that indeed too much regulation 25 absolutely discourages professionals from continuing in
581 the profession, or taking the education they need, or 2 doing the quality improvement that they need, and if it's 3 always under the threat that they will be reported to 4 their regulator with a prospect that they'll ultimately 5 be blamed and held up to some kind of very public 6 ridicule that you're not going to improve quality -- 7 DR. JOAN GILMOUR: Mm-hm. 8 MS. LINDA ROTHSTEIN: -- of performance. 9 What are your comments? 10 DR. JOAN GILMOUR: Or -- or some kind of 11 sanction -- 12 MS. LINDA ROTHSTEIN: Right. 13 DR. JOAN GILMOUR: -- not just ridicule. 14 MS. LINDA ROTHSTEIN: Yeah. 15 DR. JOAN GILMOUR: Yes. And I think 16 there's much to be said for those comments and concerns. 17 And I -- going back to a point that Dr. Gerace made 18 earlier, in terms of complaints, should be seen more as a 19 formative process and -- and part of learning; that's 20 also something that I would agree with, except that there 21 are points where, in my view, it's important that the 22 regulator should, perhaps as part of a remediation or -- 23 or in terms of recognising just how serious what has gone 24 on in a particular case be, make what might be seen as, 25 even if still a remedial order, a much more onerous
591 remedial order, or indeed one that may require a 2 suspension from practice or even a revocation of 3 certificate of membership. 4 So the regulator can't just always engage 5 in remediation, and that's I think one (1) of the things 6 that makes your task particularly difficult, because when 7 it comes to the problem of information sharing one (1) of 8 the reasons I think that that reluctance to share 9 information occurs, is because of a concern that there 10 will be that kind of a sanction. And indeed in some 11 cases that kind of a sanction is appropriate. 12 So it puts the regulator then in a very 13 difficult position, because it would not be appropriate 14 to say the response is always remedial; it's not and it 15 shouldn't be. And it will depend on the circumstances. 16 And so there's a certain reality to that that will 17 underlie that reluctance to share information. 18 At the same time, when you think about 19 patient safety concerns and considerations, one (1) of 20 the most important things to do to improve kay -- patient 21 safety is actually to share information about what has 22 gone wrong and what one can then do to fix it going 23 forward, to make sure that that doesn't happen any -- any 24 longer; not just with this individual, but more broadly 25 in the system.
601 So it's a -- a very difficult balance to 2 try to achieve and not one, from what you're reporting, 3 that has been achieved. There's not that reporting 4 happening. 5 MS. LINDA ROTHSTEIN: Dr. Yarrow, what 6 problems, if any, do -- does your college experience with 7 information sharing from others who know about the 8 conduct of your members and their professional lives? 9 DR. CATHERINE YARROW: Well, right now 10 within the regulated health professions legislation, 11 there are mandatory reporting requirements but they're 12 really quite circumscribed to very particular situations; 13 for instance, particularly in relation to a facility 14 where members works or where a member might be employed. 15 But there are many other agencies, 16 organizations, situations, in which members provide 17 services, essentially as contractor or free agents or 18 fee-for-service individuals, where that agency may 19 receive the work of our member and really not be very 20 satisfied with it or have concerns about either 21 incompetence, conduct, misconduct, or incapacity. 22 There's no mandatory reporting requirement 23 for that agency to the College, and so we can't know that 24 situation and yet we may be told anonymously that we have 25 members out there who aren't functioning well or
611 appropriately. And there's nothing that we can do to 2 protect the public. 3 So I really do support Rocco's point -- 4 Dr. Gerace's point that there must be some potential for 5 information transmission to the regulator, because if we 6 don't hear about it, we can't do anything about it. 7 MS. LINDA ROTHSTEIN: Professor Sossin -- 8 DR. LORNE SOSSIN: Mm-hm. 9 MS. LINDA ROTHSTEIN: -- are there not 10 enough mandatory reporting obligations in the current 11 Regulated Health Professions Act. Are -- should there be 12 more, or are professionals already under too much sur -- 13 surveillance? 14 DR. LORNE SOSSIN: Well, I think it's a - 15 - it's the last one I wanted to take up because we've -- 16 the inquiry heard, through much of the testimony, but 17 also at a -- a round table last week, about the concerns 18 around supply; the concerns around numbers, especially 19 of forensic pathologists. And I think this has a ripple 20 effect throughout much of the discussion on complaints. 21 It -- we've been talking in the abstract 22 about bodies that will simply get the expertise they 23 need, but, of course, it's a zero sum game. So there are 24 only so forensic pathologists around, and when they're 25 doing work, whether it's peer review work or sitting on a
621 Paediatric Death Review Committee or participating in a 2 CPSO investigation or some other body, there's a 3 continual strain on the process. 4 And I think the most dangerous area where 5 this intersection takes place is the indications that the 6 inquiry's heard that people are already lax with lack of 7 compliance in a variety of areas for fear of pushing 8 people out of the system. 9 So, for example, if timelines are not 10 being met, people are coming late with post-mortem 11 examinations, or there are problems with the completeness 12 or thoroughness of them, the balance that has to be 13 struck in each case in the existing system is how much do 14 we push to get the kind of professional conduct that we 15 would want -- the best practice, as it were -- before 16 someone, who's already dealing with a high stress 17 environment and court testimony and often hospital 18 oversight, CPSO oversight, Chief Forensic Pathologist 19 oversight, Chief Coroner oversight, and the media, and 20 inquiries like this from time to time; how are we going 21 to keep people in the system with all of these multiple 22 pressures? 23 And what I'd suggest is that you can't 24 develop the accountability, complaints and oversight 25 mechanisms driven by those concerns around supply. In
631 other words, I think you need to see those supply 2 concerns as real and legitimate. 3 They are kind of a condition precedent for 4 the oversight and accountability mechanisms to be 5 effective, but I think it would be the wrong order to 6 have oversight and mandatory reporting; these things 7 driven by what's going to be a threat of driving people 8 out or a barrier to inducing people in. 9 And -- and I would defer to the expertise 10 on the regulators that we have as to what level of 11 mandatory reporting is -- is the right one. I think the 12 only principle, I'd suggest, is that we have had enough 13 experience now, at the end of a process of situations 14 that we want to prevent in the future, to be able to say 15 at what juncture would self-reporting have made a 16 difference. 17 And as was said, I think, in -- in one (1) 18 of the discussions leading up to this roundtable, are the 19 people who would engage in self-reporting, actually the 20 people who wouldn't be the problem, in any event, and the 21 people who would be the greatest threat be the people who 22 probably wouldn't engage in self-reporting in a way that 23 would bring this to light. 24 So is it really worth putting all the eggs 25 in a basket that we know, to have that fragility built
641 into it. 2 MS. LINDA ROTHSTEIN: Professor Gilmour, 3 if we even look beyond forensic pathologists, based on 4 your work in patient safety, is there anything to the 5 popular notion, or at least what we've heard, that 6 physicians in particular feel that they are often 7 unfairly scapegoated by the failures of the health care 8 system. 9 Is there something to that? 10 DR. JOAN GILMOUR: I think there's a 11 concern that in a complaint system that is individually 12 focussed and reactive, that the easiest person to 13 pinpoint is the person at the end of that line, or what 14 sometimes is called the "sharp end"; the person who is 15 providing the actual service. 16 And what that doesn't always highlight is 17 the role that's played by factors at the blunt end, so 18 decisions that are made about resources that will be 19 available; decisions that will affect workload and so on. 20 So in that sense, the person easiest to 21 identify as being at fault, as having provided care or -- 22 that was deficient, or been deficient in meeting the 23 standard of practice, and indeed they may have been, is 24 the person at the sharp end; so often the doctor, who is 25 the most visible person at the sharp end.
651 But they may have been -- or the 2 environment may have been affected such that that result 3 is set up to happen by more systemic factors and the 4 attention on those is blunted often. 5 MS. LINDA ROTHSTEIN: And do you have a 6 view on whether or not the RHPA strikes the right balance 7 in terms of the mandatory reporting obligations, both of 8 institutions and physicians themselves? 9 DR. JOAN GILMOUR: Well, as -- as a 10 number of the panellists have said so far, the mandatory 11 reporting obligations, as they stand at present, are 12 really very limited and focussed on particular areas, and 13 so in that sense, not particularly broad. If we think 14 about the requirement in terms of reporting changes in 15 one's hospital privileges, it's not so much that there's 16 deficiencies in the law, as there is in -- in living up 17 to what those requirements are. 18 To get at the reasons for that then, I 19 would suggest you have to go back to some of those blunt 20 end factors, which is the concern about what will happen 21 if that report is made. And the -- both perception of 22 the complaints process, on the part of -- of all of those 23 involved, the reality of that, and then the hard reality, 24 which is that at some point the regulator is not going to 25 be just able to come up with a remedial response in some
661 types of situations. 2 MS. LINDA ROTHSTEIN: Dr. Gerace, any 3 more comments on this issue? 4 DR. ROCCO GERACE: Well, just -- just a 5 comment on -- I just -- if I misspoke -- that all 6 complaints don't result in a remedial approach. I think 7 there is a spectrum of responses to complaints from doing 8 nothing, if there's no merit to the complaint, to 9 revocation, if there's egregious behaviour. 10 So I -- I didn't mean to say that all 11 things are -- all complaints are dealt with by -- by 12 remediation, but remediation has to be a part of it. If 13 one looks -- if we look at a regulatory system not being 14 a building in downtown Toronto for doctors, but rather a 15 continuum in hospitals, in doctor's offices, in family 16 health clinics, a complaint at -- at a lower level may 17 raise one's awareness to a particular issue and cause 18 that person to learn. That's what happens the majority 19 of the time. 20 In respect to -- in respect to the issue 21 of reporting, the problem I think is that we have small 22 hospitals, or intermediate size hospitals, who are facing 23 very expensive litigation. They're -- they're led to a 24 way out of that litigation that they can hardly afford 25 because they can barely do their day job, by allowing a
671 doctor to leave without a report. 2 We know that happens. I hear it from the 3 -- the lawyers who work with hospitals. That's what 4 happens and somehow we have to find a way to get around 5 that. 6 Perhaps part of the problem is that -- is 7 the perception that the regulator, or report to the 8 regulator, will automatically result in a disciplinary 9 hearing; that doesn't happen. There is always an 10 attempt, if -- if the doctor is willing, and the majority 11 of time they are, to -- to correct their behaviour, 12 that's done. 13 And so part of it's a communication issue. 14 But the reality is when someone loses their privileges at 15 a hospital that's usually a pretty serious matter, and -- 16 and that's not being reported. 17 COMMISSIONER STEPHEN GOUDGE: Dr. Gerace, 18 you've expressed very eloquently the motivation of we 19 don't want to get involved in expensive litigation. A 20 motivation that we heard in the course of the last three 21 (3) months or so, from time to time, was we didn't want 22 to do anything about it because if we did we wouldn't be 23 able to maintain the service; that is maintenance of 24 service as opposed to concern with litigation. 25 Is maintenance of service, given the size
681 of Ontario and the difficulty of maintaining service 2 anyway, is that ever a legitimate consideration in a 3 complaints process? 4 DR. ROCCO GERACE: I don't believe so. 5 We -- we hear often that -- that the College should -- 6 should perhaps adjust its entry requirements for under- 7 serviced areas to -- to allow more doctors in because 8 there's not enough service. 9 COMMISSIONER STEPHEN GOUDGE: Or take 10 account of it in the consequences that a complaints 11 process might mete out? 12 DR. ROCCO GERACE: Yeah, I -- I just -- I 13 don't buy it. 14 COMMISSIONER STEPHEN GOUDGE: You don't 15 accept that. 16 DR. ROCCO GERACE: I don't buy it for a 17 moment. And -- and we know there are other jurisdictions 18 who are far more draconian than we are, and they have -- 19 they don't have problems with shortages; they don't have 20 people leaving and doctors leaving in droves because they 21 have a process that's more rigorous. 22 I actually believe the profession at large 23 is accepting of -- of a standard of practice, of a 24 standard of behaviour, and are far more outraged often 25 than -- than the public when one (1) of their colleagues
691 misbehaves. Often -- 2 COMMISSIONER STEPHEN GOUDGE: Can -- 3 sorry, you finish. 4 DR. ROCCO GERACE: What we're talking 5 about is egregious behaviour. The complaints process is 6 a nuisance and -- and we have to look at a way to ensure 7 that it's -- it's effective and yet not onerous, but I -- 8 I don't know that we can get rid of it. 9 COMMISSIONER STEPHEN GOUDGE: Okay. Let 10 me put it in the context apart from forensic pathology 11 and see if it makes any difference. If you had a case 12 where there was one (1) family physician in a northern 13 Ontario town and the complaints process would in the 14 normal course, if that position were in Toronto, yield a 15 three (3) month suspension. A three (3) month suspension 16 for this community would be devastating. 17 Would that be an appropriate consideration 18 for the complaints process? 19 DR. ROCCO GERACE: That's a good question 20 and I'm not sure that I have an answer. I think it 21 depends on what the behaviour is; it depends on what the 22 outcome is. And I think if a doctor is competent it 23 might be a consideration. If the issue was -- was a non- 24 clinical matter, it might be a consideration. 25 But I suspect that more generally if you
701 talk to someone from the north and ask them if they 2 wanted a substandard doctor because they haven't got any, 3 they want the same standard that the people in downtown 4 Toronto get. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Dr. Gerace, how 8 successful do you think you've been in the profession in 9 persuading them that you're just not the big bad shark or 10 whatever you want to call it, but that in fact a lot of 11 the work that you do as regulator is help physicians 12 educate themselves about mistakes? 13 Is there anything else that can be done? 14 DR. ROCCO GERACE: Well, clearly we -- we 15 have to communicate. And -- and there will always be a 16 subset of the profession who will be very adamant that -- 17 that the College is -- is that shark that you described. 18 Again, when -- when concerns come it's a 19 very small number of concerns. So if we have a hundred 20 (100) doctors expressing concern about what we're doing; 21 there's twenty-six thousand (26,000) doctors in the 22 Province, is that sufficient to say that it's bad? I 23 don't know, maybe the hundred (100) represents five 24 hundred (500), but even that's a very small number with 25 the whole.
711 I -- I suspect that my answer to your 2 question is that we can do better and we have to continue 3 to educate both the profession and the public, in respect 4 to our role and -- and how best to carry it out. 5 MS. LINDA ROTHSTEIN: Dr. Yarrow, to what 6 extent, if at all, does the College of Psychologists 7 suffer from the perception in the profession that it's 8 unfair or overly harsh? 9 DR. CATHERINE YARROW: It -- it's 10 surprising sometimes. In general there are many members 11 who regularly interact with the College in a positive 12 way, in terms of their interest in the standards and 13 understanding them and adhering to them, and yet getting 14 a complaint is a very emotional event in the life of a 15 professional, and can engender some of the biggest fears, 16 and urban myths about the consequences of a complaint. 17 And it's very difficult to eradicate some 18 of that perception, you know, unless people have had 19 enough experience with the College in other contexts. 20 MS. LINDA ROTHSTEIN: Okay, Professor 21 Sossin, you've envisaged a different kind of complaint 22 system that would deal with a death investigation as a 23 whole, and the death investigation team as a whole. 24 What would that look like? Where would 25 the process be? Who would be in charge of assessing
721 whether or not those complaints are well-founded? What 2 kind of remedial, or other powers -- 3 DR. LORNE SOSSIN: Right. 4 MS. LINDA ROTHSTEIN: -- would it have? 5 How do you sanction a police officer with a death 6 investigation complaints tribunal? Help us with that. 7 DR. LORNE SOSSIN: That's why I -- I 8 think, and of course, you know, all of the different 9 communities involved would have views on -- on how this 10 could work, or what barriers their own perspective might 11 present, so it's with a fairly large caveat that I would 12 proceed to say anything. 13 But I think the main advantage of this 14 kind of approach is around the gatekeeping, and 15 coordination. 16 In other words, not to replicate a system 17 for dealing with the discipline of doctors for standards 18 of medicine, and not to replicate a system for 19 prosectors, or police officers, or child welfare officers 20 that might all ready exist, but to say that those silos 21 themselves present barriers to the public interest in 22 oversight of death investigations. Because it's possible 23 for every individual involved to have complied with the 24 standards of their own professional body, and for there 25 still to have been serious errors in a death
731 investigation and outcomes that are of concern. 2 And it may be the communication between 3 them. It may be mechanisms of disclosure, and 4 information sharing. There may be all sorts of things 5 going on that, to -- to paraphrase Professor Gilmour, 6 that you wouldn't want to go after someone to blame, and 7 yet the system has -- has let someone down. 8 And more importantly, from the 9 complainant's point of view, often none of this is going 10 to be transparent to them. They're simply going to know 11 that there was a -- lets say a post-mortem examination; 12 they were dealing with an investigative coroner; they had 13 been dealing with a doctor caring for a child, or a loved 14 one at the point of death; they may have been visited by 15 a child welfare officer; they would likely have had some 16 interaction with a police officer; they may feel wronged 17 or that there was misconduct, and not know who, or which 18 body was responsible. 19 So having one (1) point of contact from 20 the complainant's point of view, I think, is a big 21 advantage; not to have situations we've had now of 22 families that have actually gone to the CPSO, and the 23 Ombudsman, and the Chief Coroner, and the media, and all 24 sorts of other mechanisms, just trying to find some way 25 into oversight.
741 So the -- the main features that -- that I 2 would suggest are recommended by this approach are: 3 1. The single point of contact. 4 2. The ability for gatekeeping, and 5 coordination, and information exchange with the other 6 bodies that have oversight jurisdiction and; 7 3. An ability to both develop and then 8 harness the kinds of expertise that one would find in a 9 complaints committee of the CPSO for general 10 practitioners in a forensic pathology context. In other 11 words, a body that will be working in the death 12 investigation context routinely, maybe multi- 13 disciplinary, and may in -- in fact have a reporting 14 structure that lies outside of just the Chief Coroner's 15 structure. 16 In other words, in -- in last week's 17 discussion, there had been talk of a Board, or a council, 18 that would exist atop the process, and if one looks at 19 other analogies, whether it's quality management, or a 20 complaints body, those are often bodies that have a 21 direct relationship to that Board or council, as opposed 22 to simply reporting up a hierarchy to, in our case, a 23 Chief Coroner, where it may well be the activities of a 24 Chief Coroner that are the subject of a complaint. 25 So it goes to the independence question
751 that was raised earlier, but also to this expertise 2 issue, and building in what the Australians and the UK, 3 through their home office process, see as the real 4 advantages of death investigators managing a death 5 investigation complaint body; that you really build in a 6 deep understanding of, for example, the interaction with 7 the criminal justice system; testimony in Court; dealing 8 with science and -- and laboratories, and police 9 officers, and all the other things that are a much bigger 10 slice of the death investigation context than they would 11 be, for example, for other medical practitioners. 12 COMMISSIONER STEPHEN GOUDGE: What would 13 the range of sanctions be? 14 DR. LORNE SOSSIN: So in terms of 15 sanctions, I -- I think you heard the beginnings of a 16 consensus on the importance of quality management 17 wherever there are standards issues that can be remedied 18 in that way. So anything that can be remedied through 19 those kinds of measures ought to be. 20 And really, it's either where there's 21 persistent ineffectiveness of that process or conduct 22 issues, which go to character and integrity and concerns 23 of that nature, where simply having more education, more 24 training, more opportunity for mentorship may not be 25 effective.
761 And I think we've got models out there to 2 build on. In other words, I don't think we need to 3 reinvent wheels as to sanctions, but the difference is 4 that those models have mostly developed in siloed 5 settings. 6 You heard a little bit about an analogy 7 with hospitals and we now have teams of health 8 professionals, that might include pharmacists and social 9 workers and physicians and nurses, and there is a 10 developing expertise around accountability and oversight 11 in team approaches. And I -- and I think this is in part 12 what needs to be built on in -- in the death 13 investigation process. 14 And having that single point of contact I 15 would add, just to finish, not only provides for the -- 16 the coordination and gate-keeping, but also provides a 17 window of accountability to the public, to be able to 18 say, Here are the complaints received about death 19 investigations, here's what happened to all of them in 20 the aggregate; to deal with support for families, let's 21 say, in bereave -- bereavement settings, where they may 22 not be sure if there was a basis of concern or not. How 23 are they going to get support through that process? 24 I see complaints, in other words, in the 25 death investigation context, not simply as the place that
771 you take the concern that you know about and just don't 2 know how to remedy it; it may also be part of a process 3 of supports for those affected by death investigations 4 and a general accountability structure as well. 5 COMMISSIONER STEPHEN GOUDGE: But if I 6 sort of juxtapose remediation and sanction -- 7 DR. LORNE SOSSIN: Right. 8 COMMISSIONER STEPHEN GOUDGE: -- okay, 9 meaning by sanction, some form of punishment of quasi- 10 punishment, would you see this regulatory instrument 11 being used for sanction? 12 I mean, I can understand the remediation. 13 DR. LORNE SOSSIN: I think this -- 14 COMMISSIONER STEPHEN GOUDGE: Let's make 15 the team better in the future -- 16 DR. LORNE SOSSIN: Right. 17 COMMISSIONER STEPHEN GOUDGE: -- but what 18 about -- what sanctions would be available? I mean, a 19 professional regulator has obvious sanctions. 20 DR. LORNE SOSSIN: Yeah, I think there -- 21 they're probably two (2) kinds. One (1) is this notion 22 of registries and, you know, being certified to be able 23 to perform services -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. LORNE SOSSIN: -- in the context of a
781 death investigation, and second would be the interaction 2 with those professional bodies. Because all the ones 3 we've spoken of -- and I -- I don't know enough about all 4 of them to speak as -- as an expert -- but all of the 5 participants also are subject to their own professional 6 oversight in those silos, so I don't think the answer is 7 get rid of all those structures when they start to 8 impinge on a death investigation; I think it's how to 9 build in the hybrid so you get that individual 10 accountability, but you don't lose the collaborative or 11 the team accountability in oversight, as well. 12 COMMISSIONER STEPHEN GOUDGE: Well, the 13 team accountability can only be remedial. I mean, you're 14 not going to -- 15 DR. LORNE SOSSIN: No. 16 COMMISSIONER STEPHEN GOUDGE: -- suspend 17 the whole team. 18 DR. LORNE SOSSIN: I think that's right. 19 Although, you know, there is -- and it's probably wrong 20 to call it a sanction, but there is a role -- even an 21 existing role when you look at some of the Death Under 22 Five committees or Paediatric Death Review committees, 23 that is able to, you know, identify errors or risk of 24 errors that can lead to other investigations. 25 In other words, I wouldn't see the team
791 getting sanctioned, but it may only be when you see the 2 team in action that you have a basis for exploring other 3 kinds of investigations that could lead to sanctions. 4 But I think you're right, you can't say 5 the -- you can say the team made mistakes; very hard to 6 say the team suffers a sanction. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Dr. Gerace, did you 10 have a comment, I think? 11 DR. ROCCO GERACE: Well, just to say that 12 there has -- I think there has to be an arm's length 13 accountability framework. We -- if we think back to what 14 went on in the mid-'90s around the Coroner's Council, 15 which while not a death investigation process, did deal 16 with coroners; did deal with agents of the -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. ROCCO GERACE: -- coroner. There was 19 criticism levelled to the College for having deferred to 20 that body to deal with the complaint; it was then 21 disbanded. All of the things added up. 22 I would just urge that -- that firstly I - 23 - I can't imagine that we in the future would -- would 24 defer our responsibility again. And secondly, with any 25 complaint that comes to us there's a -- there's an arm's
801 length independent appeal process in the Health 2 Professions' Appeal and Review Board, and I would suspect 3 there should be something similar. 4 And -- and I just want to, beyond all of 5 that, comment that the hypothetical that the Commissioner 6 posed to me was stressful indeed and I'm not sure that I 7 gave the right answer; just so you know, around the 8 northern community and the -- 9 COMMISSIONER STEPHEN GOUDGE: Well, I 10 didn't mean to be an imposer of stress or anything, Dr. 11 Gerace, but I mean we obviously were told a very close 12 analogy to that as we heard the evidence of what went on 13 in the '90's, you know. 14 You can't do anything about it because 15 it's an essential service that's got to be provided. 16 It's a tough problem. 17 DR. ROCCO GERACE: But -- but the 18 solution, I would suggest, is not to compromise 19 standards. 20 COMMISSIONER STEPHEN GOUDGE: And 21 obviously we've heard a lot about the importance of 22 increasing the supply so the essential service can be 23 performed by a variety of people, but I was just sort of 24 using the metaphor from what we heard. 25
811 CONTINUED BY MS. LINDA ROTHSTEIN: 2 MS. LINDA ROTHSTEIN: Dr. Gilmour -- or 3 Professor Gilmour and Dr. Yarrow, any comments before we 4 take our morning break? 5 DR. JOAN GILMOUR: Just very briefly, I 6 do think that Professor Sossin's idea of a death 7 investigation team -- and I would not -- and I don't 8 think he is, either, limiting that just to forensic 9 pathologists -- has much to say for it. 10 And in -- in many ways, in terms of going 11 forward or looking forward, based on what has happened in 12 the past because whe -- when you think about it, 13 certainly in a patient care context lots of the problems 14 arise out of near misses, right? 15 COMMISSIONER STEPHEN GOUDGE: Yes. 16 DR. JOAN GILMOUR: So there's not really 17 a complaint and there actually wasn't harm because it got 18 caught in time, but it was almost an error and it almost 19 caused harm. 20 And it would be good to have some sort of 21 a body that had that cross-cutting jurisdiction, with 22 respect to many different types of professionals, that 23 could look at how the system is operating, and not just 24 what's gone wrong in the past but also what -- what 25 almost got through, because you want to catch the near
821 misses in some way. 2 COMMISSIONER STEPHEN GOUDGE: Does the 3 concern about duplication worry you at all -- 4 DR. JOAN GILMOUR: Yes. 5 COMMISSIONER STEPHEN GOUDGE: -- Dr. 6 Gilmore? I mean, this is just a -- 7 DR. JOAN GILMOUR: Yes. 8 COMMISSIONER STEPHEN GOUDGE: -- let me 9 put it in the pejorative, just another overlay of 10 regulatory thicket -- 11 DR. JOAN GILMOUR: Yes. 12 COMMISSIONER STEPHEN GOUDGE: -- that an 13 individual or a team has to face? 14 DR. JOAN GILMOUR: Yes, I agree with 15 that; it is and it does. And it imposes costs and I 16 don't just mean by that financial costs; it imposes human 17 costs in terms of the -- 18 COMMISSIONER STEPHEN GOUDGE: Time, and 19 energy, and all that. 20 DR. JOAN GILMOUR: The time, energy, and 21 -- and everything else. And in fact in -- in the United 22 Kingdom where -- where they had -- and I'm going to the 23 patient safety system there -- but in the United Kingdom 24 where they had, after the whole series of scandals in 25 hospitals and so on, put in a list of new agencies as
831 long as your arm that people had to report to. They then 2 had to go back and say, Okay, we need to consolidate some 3 of these functions here because people are spending all 4 of their time -- 5 COMMISSIONER STEPHEN GOUDGE: Yes. 6 DR. JOAN GILMOUR: -- doing all of the 7 reports and so on and so forth. I -- so I absolutely 8 agree with that and I think that the many different types 9 of costs are real. 10 At the same time you have to look at the 11 bodies you have and think about do they respond to the 12 reality of what may be going wrong. And if that is 13 systemic and the bodies you have, have silo jurisdiction 14 they aren't necessarily going to get at what's causing 15 things to go wrong, so you still need that. 16 But for that reason I would agree with Dr. 17 Sossin that you do need perhaps a much more active 18 gatekeeping and coordination role among those bodies to 19 say, All right, well if this is being appropriately taken 20 care of by this body, then we don't need to go great 21 guns; that still doesn't deal with the problem of extra 22 reports and so on, and I agree that that is a real 23 problem and it has real costs. 24 MS. LINDA ROTHSTEIN: Should we take our 25 morning break, Commissioner?
841 COMMISSIONER STEPHEN GOUDGE: Sure. Why 2 don't we take fifteen (15) minutes then. 3 4 --- Upon recessing at 11:02 a.m. 5 --- Upon resuming at 11:20 a.m. 6 7 MR. REGISTRAR: All rise. 8 COMMISSIONER STEPHEN GOUDGE: Please sit 9 down. 10 Ms. Rothstein...? 11 12 CONTINUED BY MS. LINDA ROTHSTEIN: 13 MS. LINDA ROTHSTEIN: Thank you very 14 much, Commissioner. Dr. Gerace, I want to come back to 15 you and continue to flesh out some of the options that 16 are available to the College, in terms of dealing with 17 concerns as opposed to complaints that arise in relation 18 to the conduct of a -- any medical professional, but 19 let's make it specific to our work -- a forensic 20 pathologists. 21 So a couple of things. First of all, 22 newspaper reports, somebody passes you a written decision 23 from a judge, that ends up on your desk as the Registrar. 24 What, if any, power do you have to investigate solely 25 because those pieces of paper are sitting on your desk
851 next Monday morning? 2 DR. ROCCO GERACE: Virtually any 3 information that comes to the College, whether it's a 4 media report, whether it's a chief of staff that sent a 5 letter, or whether it's a physician elsewhere in practice 6 who has expressed a concern; all of that information is 7 dealt with. 8 The process for other than public 9 complaints is that information is put in front of -- 10 there are some preliminary inquiries first. The 11 information is put in front of me and I have an 12 obligation to form reasonable and probable grounds for an 13 investigation. 14 If I do so, then that matter is put in 15 front of the Executive Committee, who then appoint -- 16 instruct me to appoint investigators. 17 So information comes from a host of 18 sources, and -- and we deal with all of it. 19 MS. LINDA ROTHSTEIN: Okay. And there's 20 an investigation that's done on this forensic 21 pathologist, and it makes its way either to the Executive 22 Committee or the Complaints Committee, and they decide 23 that they need assistance from a forensic pathologist in 24 ascertaining whether, indeed, this member has failed to 25 maintain the standards of practice of his profession,
861 forensic pathology. 2 You go outside, you retain some forensic 3 pathologists, probably from outside the jurisdiction, is 4 that right? 5 DR. ROCCO GERACE: We did -- 6 MS. LINDA ROTHSTEIN: Okay. 7 DR. ROCCO GERACE: -- yes. 8 MS. LINDA ROTHSTEIN: But that would 9 likely be what you'd do -- 10 DR. ROCCO GERACE: Yep. 11 MS. LINDA ROTHSTEIN: -- given the small 12 pool that we've talked about? 13 DR. ROCCO GERACE: Yes. 14 MS. LINDA ROTHSTEIN: And what, if any, 15 information would those outside assessors, I think they 16 were called, be given about what the standards of 17 practice are for forensic pathology in Ontario, given 18 that none of that's in writing? 19 Would you leave it entirely to their 20 judgment? What assistance would you give them? 21 DR. ROCCO GERACE: We would give them 22 whatever assistance they asked for. So, we -- we would 23 not have standards for the practice of forensic 24 pathology, but if there were concerns around what those 25 standards might be, we might draw those from the
871 speciality body, from other individuals. 2 Generally, the reason we get the experts 3 is to help us define the standard. 4 MS. LINDA ROTHSTEIN: Right. 5 DR. ROCCO GERACE: Because standards are 6 a moving target, and -- and by getting individuals who 7 are knowledgeable in the field, who are experts in the 8 field; they help us define what those standards are. 9 MS. LINDA ROTHSTEIN: Okay. So that 10 leads to my next question -- whether the report of the 11 assessor goes to the Executive Committee because it has 12 come by some means other than a complaint, or it goes to 13 the Complaints Committee because it has been triggered by 14 an actual complaint from a member of the public? 15 How reliant are those screening committees 16 on the opinions that you've received -- the assessments 17 you've received from the external forensic pathologists 18 as to what the standard is, and as to whether it's been 19 breached when making their decisions about whether to 20 refer this matter to discipline? 21 DR. ROCCO GERACE: Oh, very reliant. 22 Very reliant. Again, the screening committees in -- in 23 narrow areas of practice don't necessarily have the 24 expertise, and so rely heavily on the opinion, either 25 from a panel or from an individual expert, in order to
881 determine next steps. 2 MS. LINDA ROTHSTEIN: And would that be 3 the same in the College of Psychologists as well -- that 4 in effect your generalists on the screening committees 5 are very reliant on those with the subject matter 6 expertise who've done the work-up of what the standard is 7 and whether there's a breach? 8 DR. CATHERINE YARROW: Certainly they are 9 with respect to the technical steps that should be taken 10 in providing the particular service that's under 11 scrutiny. 12 And then, beyond that, they would also 13 rely on their own knowledge of the standards of 14 professional conduct and expect the expert to comment on 15 that as well as the technical content of the area of 16 practice. 17 MS. LINDA ROTHSTEIN: Okay. 18 COMMISSIONER STEPHEN GOUDGE: The 19 standard of practice is essentially what would a 20 reasonable specialist do in these circumstances? 21 DR. CATHERINE YARROW: Exactly. Yeah. 22 Yes. 23 24 CONTINUED BY MS. LINDA ROTHSTEIN: 25 MS. LINDA ROTHSTEIN: So the other thing,
891 Dr. Gerace, that would be helpful I think for the 2 Commissioner to know is the extent to which your 3 resources allow you to have direct contact with every 4 complainant, some complainants? Whether the contact is 5 just by telephone? Whether you're forced in the vast 6 majority of cases to do it only in writing when you get 7 an interview with an investigator as a complainant? 8 How much resource -- how many resources do 9 you have to commit to that kind of very personal 10 attention that complainants always articulate they would 11 like more of? 12 DR. ROCCO GERACE: Well, it depends. 13 Always it depends, and -- and the range of contact is, as 14 you've described, rarely is it -- is there ever simply 15 written contact. There -- there virtually is always 16 inter-personal contact, whether it's in person or by 17 telephone. 18 One (1) of the other things that we tend 19 to do in -- in cases, is -- is actually go out and -- and 20 have a meeting -- this is when there is a concern; a 21 review of the record would suggest that it is more a 22 systems issue than a standards issue -- is meet with the 23 -- the doctor and the patient and the hospital and the 24 nurses, and bring people together to help the patient 25 understand -- the complainant or the concerned party
901 understand what actually transpired. 2 And -- and in a lot of cases, it's a 3 matter of communication. They just didn't understand 4 what was going on. And that understanding is -- is 5 actually a very positive thing and -- and they leave not 6 having felt like they were ignored through the process. 7 But if -- if there is a matter that is 8 sufficiently severe that -- that there may be a 9 discipline hearing, then the contact is extensive -- 10 contact with the investigators; ultimately contact with 11 legal counsel in preparation for the hearing. So there 12 really is a very wide range of contact. And try -- we 13 try our best to tailor it to the -- the circumstances of 14 the case. 15 COMMISSIONER STEPHEN GOUDGE: Is there 16 anything, Dr. Gerace, that's sort of unique to forensic 17 pathology in this context? 18 What I'm thinking about is I met privately 19 with a number of the individuals whose families were 20 affected by the events we've looked at. And the impacts 21 on them as they experienced them were far more derivative 22 of the justice system than they were health care 23 consequences. Okay? 24 The explanation role that you've described 25 so -- so well, is that one (1) that the College is -- is
911 experienced enough or comfortable enough in fulfilling 2 where the impact has been not a health care impact, but a 3 justice impact? You know, I was affected, as follows, by 4 my interface with the justice system as a result of. 5 And the explanation of how that all 6 happened, is one (1) that could be made readily, I -- I 7 know, if it were all healthcare. This is partly justice. 8 Does that -- is that question -- does that 9 raise any concern or...? 10 DR. ROCCO GERACE: I think it might be a 11 little more difficult. Obviously, our expertise is in 12 health. 13 COMMISSIONER STEPHEN GOUDGE: Well, 14 that's why I raise it. That's why I raise it. Because 15 the way at least one could perceive these impacts on the 16 individuals, they had very little to do with the actual 17 health care; they were -- they were justice related. 18 And to explain how a bad opinion results 19 in a child being seized isn't, perhaps, as easy for the 20 medical regulator to explain how the health care unfolded 21 as it did in a -- in a case that was purely medical. 22 DR. ROCCO GERACE: I -- I would suggest 23 our role would not be in explaining the justice system, 24 but focussing on whether or not the individual physician 25 who served as an expert, whether it's a pathologist or in
921 a child custody matter, whether their behaviour and their 2 expertise was appropriate. 3 COMMISSIONER STEPHEN GOUDGE: Right. 4 DR. ROCCO GERACE: And it would be in 5 that way that we could -- we could provide some 6 assistance. 7 COMMISSIONER STEPHEN GOUDGE: Sure. 8 DR. ROCCO GERACE: But these resolution 9 discussions to which I alluded, really would not occur in 10 an area as focussed as this where there would be a need 11 for external expertise. 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. LORNE SOSSIN: Just a quick follow-up 14 on that. I think one (1) of the things we've seen when 15 there has been investigations of coroners or forensic 16 pathologists is a concern that the Act, itself, doesn't 17 provide much of a basis for a relationship between 18 affected families, let's say, and the death 19 investigators. That is to say there's a limited 20 disclosure obligation that they can draw on, but there 21 isn't a sense that any of those death investigators are 22 responding to their concerns. 23 Indeed, there -- there is a general 24 consensus when you look at the Legislation that it's a 25 public interest they're serving and not the particular
931 interests that the families may have. 2 And, as has been seen at this Inquiry, 3 some of those family members may be bereaved, others may 4 in fact be suspects at one (1) point in the process or 5 another if it's a child death. 6 So, again, there are models of other 7 systems that are moving to a more family centred or at 8 least seeing provision of services to families as one (1) 9 of the mandates of a coronial service. 10 And the UK now has a charter for bereaved 11 families. I think it's called "A Charter for Bereaved 12 People Who Come Into Contact With the Coroner's Service"; 13 not the most elegant title, but it speaks to a set of 14 expectations and obligations that would go far beyond 15 what you would find laid our in our own Coroner's Act. 16 And, of course, with that, it can't simply 17 be words on a page. The next question is: What 18 resources are you allocating within your structure for 19 the support of families for putting things in a more 20 transparent way in settings that are accessible to them, 21 so that they understand what a post-mortem examination 22 is; the role it plays in determining the manner and cause 23 of death; what the other participants in death 24 investigations are; how they interact; what part of that 25 process will families interact with to provide their
941 information, their story; their -- you know, express 2 concerns and see them responded to. 3 Well, all that, I would suggest, is, to 4 the extent it happens now, in a very informal and uneven 5 sense, depending on circumstances, without there being 6 direction. 7 COMMISSIONER STEPHEN GOUDGE: That's all 8 in the context of, in our system, the Coroner's Act. 9 DR. LORNE SOSSIN: Right. 10 COMMISSIONER STEPHEN GOUDGE: Okay. 11 DR. LORNE SOSSIN: So I think that's -- 12 that's part of this -- 13 COMMISSIONER STEPHEN GOUDGE: Yes, I was 14 trying to explore, I guess, Professor Sossin, whether 15 leaving aside the Coroner's Act for a moment, because 16 obviously that doesn't depend at all on a complaint being 17 lodged with any kind of regulator; that would just be 18 something that would be built into the death 19 investigation legislation itself. 20 Leaving that aside, is there a role in a 21 complaints-based component of this system for some 22 engagement of families that feel themselves to have been 23 aggrieved by what spawned the complaint? 24 DR. LORNE SOSSIN: Yeah, I -- I think 25 this actually goes back to the -- the question of is this
951 medicine being practised. We think of the complaints in 2 healthcare context often based on either the recipients 3 of medical services or their family members who see a 4 patient safety or a patient protection concern driving 5 the complaint. Not -- not always, sometimes it can be, 6 as was suggested, just a system's approach to it. 7 But I think that's the piece that's 8 missing in these cases; is a sense that -- that that 9 deceased person is anyone's patient anymore or that their 10 family or friends or loved ones have a stake in the 11 outcome of what forensic pathologists and coroners do 12 beyond, for example, their concern if they're a suspect 13 in a criminal proceeding. 14 So I think it's when -- when you hear that 15 this lies outside of what the CPSO might normally think 16 of as its function to explain the healthcare process, 17 again, I think it comes back to just where medicine ends 18 and something else begins. 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 21 CONTINUED BY MS. LINDA ROTHSTEIN: 22 MS. LINDA ROTHSTEIN: A little different 23 subject, Dr. Gerace, and it is the -- the consequences of 24 having to regulate in, as we were -- as we already know, 25 a complicated legal environment in which there may be
961 corresponding criminal proceedings, there may be civil 2 proceedings, and perhaps some of the regulatory 3 proceedings, as we've heard. 4 How much does that encumber your process? 5 How -- what challenges does that create for the CPSO as 6 regulator? To what extent does it say, We're plunging 7 ahead? 8 DR. ROCCO GERACE: Well, certainly, in a 9 civil matter ,if there's a civil process going on 10 concurrently, it -- it bears no relationship to our 11 process. Our process would proceed. 12 If there is a criminal prosecution of our 13 member, the focus is public protection. And, so, to give 14 an example, there was a matter in which there was a bail 15 condition against the member. 16 Understanding that we can't take any 17 definitive action until the investigation is completed 18 and a referral is made, what we may do at that point is - 19 - is get an undertaking from the physician that's 20 parallel to the bail -- the -- the bail restriction. 21 So if, for example, they're told they 22 can't examine females without a chaperone; that we would 23 get an undertaking to have the doctor give that -- us 24 that undertaking and have that undertaking appear in the 25 public register.
971 So -- so there is communication, there is 2 -- the -- the focus is public interest, and so as long as 3 we can be sure that that public interest is protected, we 4 may, in those circumstances where parallel investigations 5 may jeopardize one (1) or the other process, wait as long 6 as we -- we have those assurances. 7 MS. LINDA ROTHSTEIN: In one (1) of our 8 cases, you'll recall, it wasn't the situation that the 9 member himself was the subject of the criminal 10 investigation, but rather others were. And the argument 11 was raised with you, the Regulator -- not you personally 12 -- that if the College were to proceed against the 13 member, that might interfere with and even undermine the 14 corresponding criminal investigation and prosecution. 15 Is that going to be a competing problem 16 often, or not? 17 DR. ROCCO GERACE: Well, certainly not 18 often, but -- but it would always depend on the 19 circumstances of the case. 20 It would seem to me that if -- if the 21 behaviour of the expert is so egregious as to warrant our 22 input, I would have thought that -- that others would 23 say, Gee whiz, should this be an individual who's 24 actually testifying. 25 It speaks to the need for communication
981 and, again, our role would be predicated on public 2 interest. 3 MS. LINDA ROTHSTEIN: Okay. So we've 4 talked about the communication issues with hospitals. 5 What about with police forces? 6 Both of you -- Dr. Yarrow, Dr. Gerace -- 7 how difficult is that communication between police 8 investigators and your investigators? Is it fraught? Is 9 it difficult? 10 DR. ROCCO GERACE: Actually, I -- and 11 again, I -- I don't often hear about that, but my 12 understanding is that our investigators do communicate 13 well with the police. 14 We have actually a number of investigators 15 who are former police officers who speak their language, 16 and -- and, so I think the communication is good. 17 Again, most frequently, everyone wants the 18 same end, and that's public protection, and, so I -- I 19 think it's positive. 20 MS. LINDA ROTHSTEIN: Dr. Yarrow, what's 21 your experience? 22 DR. CATHERINE YARROW: Well, we've had 23 circumstances in which the police have actually contacted 24 us about concerns that they're dealing with, and then our 25 investigator has worked with that individual.
991 And the police often have to get their own 2 legal advice about what they're permitted to release to 3 us and when they're able to make those disclosures. 4 But there seems to be a good collaboration 5 in assisting the College in accessing information that we 6 might need to consider relevant to the member's practice. 7 MS. LINDA ROTHSTEIN: Okay. So I want to 8 turn, before I -- I hand it over to some of my 9 colleagues, to the issue of quality assurance, and we 10 know that the Regulated Health Professions Act actually 11 creates a quality assurance process that is different 12 from the one (1) that we've spent the majority of the 13 morning talking about, being the complaints discipline 14 process. 15 Can you walk us through that process and - 16 - and tell us to what extent have, if at all, it provides 17 some measure of oversight for forensic pathology in 18 particular, or -- or physicians in general. 19 DR. ROCCO GERACE: I'll -- I'll speak 20 about it more generally first, and it's my view that the 21 future of regulation should have a heavy emphasis on 22 quality assurance. 23 Currently -- well, we have -- we currently 24 have a Quality Assurance Committee who has the ability to 25 -- to order assessments of -- of a physician's practice.
1001 Currently -- and this will change with the 2 new legislation -- the screening committee can refer to 3 the Quality Assurance Committee, and -- and that works 4 well in the vast majority of times. 5 Unfortunately, when there are problems, 6 the information pertaining to that problem cannot come 7 back to the screening committee, whether it's the 8 Executive Committee. Usually -- it would be unusual for 9 it to be the Complaints Committee. 10 In the new legislation, there will be a 11 barrier, and the screening committee will not be able to 12 refer to the Quality Assurance Committee. 13 In -- in that circumstance -- and -- and 14 again I -- I can speak only for medicine -- currently, we 15 are doing somewhere in the range of seven (7) to eight 16 hundred (800) assessments a year. 17 These are meant to be formative 18 assessments, looking at a doctor's practice, giving 19 suggestions on how they may improve. But at the same 20 time, if there are deficiencies, recognizing those 21 deficiencies and helping the physician navigate through 22 those deficiencies with an educational prescription. 23 Very rarely in those circumstances there 24 is a physician who -- who simply is uncooperative, does 25 not believe there's a problem, and that matter is then
1011 sent back to the Executive Committee for a more -- a 2 formal process. 3 Unfortunately, when that occurs -- and 4 that really is behavioural issues, because from my 5 perspective, doctors, I would say health professionals 6 generally, want to do a good job, and when confronted 7 with a way to do a better job, will take it. 8 It's very unusual for health 9 professionals, generally, to say, I don't care. What I'm 10 doing is fine. But in those circumstances, and -- and 11 that's why I refer to it as "behavioural" rather than 12 "clinical" -- the matter can come back to the executive 13 committee, but not the circumstances. 14 And so we're faced with a -- a dilemma of 15 ordering an investigation and the -- and the medical 16 inspector looking at the practice as, What's the problem? 17 And we have to say, I'm sorry, we can't tell you. And it 18 seems somewhat perverse, but that's the system. 19 That will be partially alleviated with the 20 change in Legislation, but that potential will continue 21 to exist. 22 That aside, looking at the whole context 23 of -- of quality assurance, it's our goal, at least, to 24 have a process whereby every member of our College will 25 have a -- an assessment every ten (10) years, and with
1021 that assessment, assistance in helping them improve their 2 practice. But at the same time, for a very small number 3 of those people, if there are problems, a way to deal 4 with those problems. 5 The other change to the Legislation will 6 allow the screening committee to -- to order an 7 educational prescription for members. And so where, in 8 the past, it had to move to the Quality Assurance 9 Committee where it was protected, now it will occur in 10 the context of the -- of the new screening committee. 11 And -- and that's okay, that will still work. 12 But I think the real benefit for forensic 13 pathology, neurosurgery, whoever, is the periodic 14 assessments; the assurance that doctors will know that 15 they're going to be assessed and an incentive to keep up. 16 Not that it's not there all the time, but, for some, that 17 incentive is helpful. 18 COMMISSIONER STEPHEN GOUDGE: What 19 triggers the seven (7) to eight hundred (800) 20 individual -- 21 DR. ROCCO GERACE: The vast majority of 22 those are random and -- 23 COMMISSIONER STEPHEN GOUDGE: A computer 24 spits out a doctor's name -- 25 DR. ROCCO GERACE: Exactly.
1031 COMMISSIONER STEPHEN GOUDGE: -- and an 2 assessment is done? 3 DR. ROCCO GERACE: Exactly. Some of them 4 are focussed. If there is a concern of one (1) sort or 5 another, there will be a focussed assessment, but the 6 majority are random. 7 One (1) of the examples of focussed 8 assessments is every doctor over the age of seventy (70) 9 goes through an assessment, and -- and that has been a 10 practice at least since I've been there. And the vast 11 majority of them do very well -- 12 COMMISSIONER STEPHEN GOUDGE: Right. 13 DR. ROCCO GERACE: -- interestingly. 14 But with -- with the increased numbers, 15 that will be a resource strain, but I think the hope is, 16 is that by keeping on top of -- of these issues in an 17 active way, it will prevent complaints and prevent 18 problems down the road. 19 COMMISSIONER STEPHEN GOUDGE: Right. Is 20 part of your quality assurance -- is any part of it 21 continuing medical education, or is that a Royal College 22 function? 23 DR. ROCCO GERACE: We are in the process 24 of demanding a component of, we refer to it now as 25 "Continuing Professional Development." Unfortunately,
1041 going to lectures has not been shown in -- to -- to 2 change delivery of care. 3 There -- there's good evidence in the 4 medical education field that having lectures and getting 5 credits for lectures really doesn't alter behaviour as 6 significantly as it should. 7 8 CONTINUED BY MS. LINDA ROTHSTEIN: 9 MS. LINDA ROTHSTEIN: Doctor -- 10 COMMISSIONER STEPHEN GOUDGE: So what are 11 you going to do? 12 DR. ROCCO GERACE: Well, we're going to 13 be -- we're going to -- we're going to rely on the Royal 14 College and the College of Family Physicians to expand 15 their program. As you know, there -- there are 16 requirements in order to maintain cert -- 17 COMMISSIONER STEPHEN GOUDGE: Right. 18 DR. ROCCO GERACE: -- certification. 19 Rely on that, but couple that with our own assessments on 20 a -- 21 COMMISSIONER STEPHEN GOUDGE: I see. 22 DR. ROCCO GERACE: -- ten (10) year 23 basis. And ideally it would be nice to coordinate with 24 them. 25 COMMISSIONER STEPHEN GOUDGE: Right.
1051 DR. ROCCO GERACE: They don't have the 2 expertise in practice assessments; we don't do continuing 3 education or continuing professional development. 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 DR. ROCCO GERACE: We should be working 6 together. 7 COMMISSIONER STEPHEN GOUDGE: Right. 8 Right. 9 10 CONTINUED BY MS. LINDA ROTHSTEIN: 11 MS. LINDA ROTHSTEIN: Dr. Yarrow, you -- 12 you told me yesterday, as well, that you -- you're 13 familiar with the evidence that educating -- continually 14 educating your members is not easily advanced by lecture 15 style format, and that there's better ways of increasing 16 the learning of your members. 17 What -- what can you tell us about that? 18 DR. CATHERINE YARROW: Mm-hm. Well, 19 certainly, the -- I guess the medical learning 20 literature, the psychology and adult education literature 21 indicate that there has to be a practical or practice 22 component to the continuing professional education. 23 As Dr. Gerace said, it's not sufficient to 24 sit passively listening to a lecture, but if there's a 25 more comprehensive workshop which actually involves
1061 practising the new skills that are being taught or 2 enhancing the skills, preferably with feedback, and 3 immediate feedback, that's more effective. 4 The other thing that's effective is a kind 5 of mentorship or supervision where there's ongoing direct 6 observation and immediate feedback. Those things are all 7 more effective in modifying behaviour than simply 8 attending at lectures. 9 MS. LINDA ROTHSTEIN: I also -- 10 COMMISSIONER STEPHEN GOUDGE: And -- 11 sorry. Can I just ask? 12 MS. LINDA ROTHSTEIN: Yes. 13 COMMISSIONER STEPHEN GOUDGE: Do the 14 psychologists have a compulsory continuing education 15 requirement? 16 DR. CATHERINE YARROW: We're actually in 17 the process of developing that. Right now all we have is 18 a -- 19 COMMISSIONER STEPHEN GOUDGE: "We" being 20 the College, that was the regulated? 21 DR. CATHERINE YARROW: The College of 22 Psychologists, yes. The -- there's a requirement to 23 attend an ethics course every few years, but we're 24 looking at developing other components to that program. 25 We don't yet have a specific requirement
1071 around training particular to the member's area of 2 practice. 3 COMMISSIONER STEPHEN GOUDGE: Personal 4 skills or anything like that. 5 DR. CATHERINE YARROW: Yes, that's right. 6 7 CONTINUED BY MS. LINDA ROTHSTEIN: 8 MS. LINDA ROTHSTEIN: And I can't 9 remember who, but somebody mentioned yesterday that the 10 literature on adult learning suggests that you need a two 11 (2) to three (3) day course of learning -- 12 DR. CATHERINE YARROW: Yeah. 13 MS. LINDA ROTHSTEIN: -- by doing; was 14 that you, Dr. Yarrow? 15 DR. CATHERINE YARROW: Yes. Yeah, 16 typically, a single day is not sufficient; you need 17 repeated practice and distributed practice for more 18 effective learning. 19 MS. LINDA ROTHSTEIN: And I asked you 20 yesterday, as well, whether you ha -- knew of a course 21 for your members that taught the skills they would need 22 to give evidence, and I think you told me "no." 23 DR. CATHERINE YARROW: Yeah. 24 MS. LINDA ROTHSTEIN: But based on what 25 you've told us, that would require a learning-by-doing
1081 setting where they'd actually be exposed to questions 2 from lawyers and, hopefully, two (2) days in duration as 3 a minimum. 4 Is that what we're to conclude? 5 DR. CATHERINE YARROW: With -- with 6 immediate feedback from someone observing their 7 participation. 8 MS. LINDA ROTHSTEIN: Okay. Dr. -- or 9 Professor Gilmore, before I hand it over to my 10 colleagues, any views, comments on the importance of the 11 quality assurance mechanism in the RHPA as a way of 12 protecting the quality of -- of physician services? 13 DR. JOAN GILMOUR: I do think that it has 14 a very important component of professional regulation and 15 that it has more potential than has been used already in 16 terms of taking -- as much as I'm not supposed to use the 17 word "proactive" approach to regulating before the -- 18 before the problems may occur. 19 I just wanted to raise one (1) point, and 20 I don't know if this is more of a theoretical than an 21 actual concern. But that is that as we construct more 22 safe harbours for the sharing of information and, 23 certainly, in patient safety, patient safety advocates 24 will impress on us the importance of sharing information 25 and find out about what went wrong to make things better
1091 for the future, so we construct more safe harbours. 2 And that has positives to it, but it also 3 means that in terms of information sharing, which Dr. 4 Gerace has, I think, correctly pointed out is so 5 important, that we then limited our ability our ability 6 to share information. 7 An example of that might be, for instance, 8 Quality of Care Information Protection Act in Ontario 9 will impose a -- a privilege around certain information 10 that is generated within quality of care activities, say, 11 within a hospital. 12 That information, at least generated 13 within that system, can't then necessarily be shared 14 elsewhere. It may be that that information is available 15 otherwise in the hospital setting and, therefore, if it 16 meets whatever the threshold is, could be shared. 17 But we need to think about the affect of 18 the different safe harbours that we create; we do that to 19 generate disclosure and information we may then limit our 20 information sharing ability. 21 A way to get around that is to include 22 protection in the legislation and permission in the 23 legislation for that information sharing. 24 So, for instance, in Saskatchewan, where 25 they have a quality of care process and requirement for
1101 that type of activity within a hospital, they also have 2 requirements within the legislation to report that 3 information on up the line and outside the hospital and 4 protection for doing so; the idea being that then the 5 information can be shared more broadly elsewhere in the 6 Province so that others can learn from mistakes that have 7 happened, so... 8 COMMISSIONER STEPHEN GOUDGE: How does 9 that work, Professor Gilmour? That -- I mean I just 10 assumed that the problem was a zero sum game; that is, 11 the more sharing you had, the less you'd get adequate 12 disclosure for your in- house quality assurance. 13 DR. JOAN GILMOUR: How -- how the Quality 14 of Care Information Protection Act works? 15 COMMISSIONER STEPHEN GOUDGE: Yes. Once 16 you get it shared out up the line and then out to the 17 broader communities -- 18 DR. JOAN GILMOUR: Well, in -- 19 COMMISSIONER STEPHEN GOUDGE: -- why 20 doesn't that share your quality assurance? 21 DR. JOAN GILMOUR: Well, what I will say 22 is that in Saskatchewan we have a new system, and so we 23 don't know exactly how it's working on the ground; 24 although what I hear is that -- and in the patient safety 25 system, having more errors reported is considered to be a
1111 good thing, because it's known how widespread medical 2 errors are, and you -- and -- and they are under 3 reported, and you want to find out about more of them. 4 And Saskatchewan's experience at this point is that are 5 getting more errors reported. 6 The idea with the privilege though, is 7 that it can't be used in other types of proceedings. And 8 you can draft that privilege more or less broadly. You 9 can limit that privilege to civil law suits. You can 10 expand that privilege to include -- 11 COMMISSIONER STEPHEN GOUDGE: 12 Professional complaints. 13 DR. JOAN GILMOUR: -- professional 14 complaints and disciplinary proceedings, though the 15 information sharing then is really problematic. 16 COMMISSIONER STEPHEN GOUDGE: Yes -- 17 DR. JOAN GILMOUR: -- with respect to the 18 professional regulator. 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. JOAN GILMOUR: So, as you do that, 21 you have to think really carefully about what you're 22 trying to achieve with this regulatory system and with 23 this safe harbour that you're creating. 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 That is interesting.
1121 2 CONTINUED BY MS. LINDA ROTHSTEIN: 3 MS. LINDA ROTHSTEIN: Professor 4 Sossin...? 5 DR. LORNE SOSSIN: So just a last word. 6 For me to the one (1) aspect of complaints-based 7 oversight that hasn't been touched on except, perhaps, a 8 little bit by Professor Gilmour at the end, which is how 9 do you know if you're doing a good job. How do you 10 evaluate oversight? 11 And -- and, in my case, I started off with 12 the idea that oversight is simply part of an 13 accountability structure and shouldn't be seen as just a 14 stand-alone or one off part of an institution. So I'm 15 not sure that it ought to be evaluated, for example, 16 outside the context of how you're evaluating quality 17 assurance in these other parts that are all devoted to 18 the same public interest in -- in high quality 19 professional services. 20 But I do think that it comes back to this 21 question that Profes -- Professor Gilmour raised about 22 Saskatchewan, which is would we take more complaints to 23 be an evidence of success or evidence of a problem. And 24 I think we have a real confusion at the moment as to what 25 the answer is.
1131 And this also came up a little bit last 2 week the Centre of Forensic Sciences and their complaint 3 process where the small number was suggested as a sign of 4 things are working, but we all know that small numbers of 5 complaints can also cut the other way. 6 It means that people who may be -- they're 7 affected by misconduct or concern in clinical practice 8 are not aware of their ability to bring complaints or 9 have other barriers in doing so. And this was a big 10 feature in -- in the UK inquiry as well. 11 So I think the imp -- I don't think 12 there's magic bullet as to what the right number of 13 complaints about death investigations or forensic 14 pathologists or coroners would be, but I think this 15 messaging about are we interested in getting all the 16 complaints out there; so if we're getting more complaints 17 each year, the system's working. 18 Or are we interested in an error-free, you 19 know, model where if the complaints are going down each 20 year, it's working. I think this is just worth having a 21 very open discussion about as these institutions are 22 being built or reformed, so that the signalling or the 23 messaging is clear. 24 And it may, of course, build in a review 25 after a number of years to say, Are we at a -- a point in
1141 time that -- that we can this is working. And what, you 2 know, evaluative scale do we measure it against, both 3 qualitatively and quantitatively, to draw some of those 4 conclusions. 5 'Cause otherwise, it simply becomes a 6 black box. Stuff goes in, stuff goes out. Who knows if 7 it's public funds being spent in -- in an effective and 8 valuable way. 9 MS. LINDA ROTHSTEIN: Okay. Final 10 comments, Dr. Gerace, whether that something that we've 11 missed along the way, an issue or suggestions for the 12 Commissioner about what he should think about in trying 13 to improve the oversight and accountability of forensic 14 pathology, specifically pediatric forensic pathology, in 15 Ontario? 16 DR. ROCCO GERACE: The -- the only 17 comment I would make is really in follow-up to Professor 18 Sossin's comment, is around a complaints-based system is 19 the effectiveness is having knowledge of the breadth of 20 complaints that may exist. 21 And so, as long as we have isolated groups 22 looking at complaints, that breadth will not be 23 recognized. So when we have a complaint about a doctor, 24 we will know about other complaints. The disposition of 25 those complaints will go in front of the Complaints
1151 Committee. 2 If there are multiple complaints, it may 3 change the direction that the committee takes. And so I 4 would just urge again that -- that we not lose sight of 5 the need for communication for broad-based understanding 6 of -- of what all of the information is when addressing a 7 factor. 8 And if we're talking about forensic 9 pathologists particularly, they will be doing general 10 pathology in hospitals, they will be doing other 11 activity, and I think that breadth has to be understood 12 by all involved. 13 COMMISSIONER STEPHEN GOUDGE: Can I just 14 ask, Dr. Gerace, we have heard some discussion last week 15 about a registry for forensic pathologists, which has a 16 variety of attributes, one (1) of which might be some 17 form of complaints-based process to remain on -- you 18 know, if one were to be removed from the registry. 19 Could one analogize that to -- that and 20 its relationship to the regulator, to your organization, 21 as being similar to the relationship between the hospital 22 discipline process that a doctor on staff at a hospital 23 would undergo, and your process? 24 DR. ROCCO GERACE: I think -- I think 25 that's an excellent analogy, and, in fact, if there was
1161 such a panel and a -- and an oversight structure for that 2 panel, with the consent of the doctor, they could know 3 what history is outstanding with the doctor. 4 And -- and we do that routinely with 5 hospitals; where a doctor to apply for hospital 6 privileges, they have to provide a certificate of 7 standing from the College, and -- and that -- 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. ROCCO GERACE: -- goes beyond the 10 public register. 11 COMMISSIONER STEPHEN GOUDGE: Right. And 12 now you articulated, in the hospital context, the 13 difficulty of information sharing and so on. 14 And what is your magic bullet for ensuring 15 that that problem does not arise? 16 DR. ROCCO GERACE: Oh, I think it would 17 have to be clearly spelled out in the terms of reference 18 for this particular organization, and a very direct 19 instruction that information does move back and forth. 20 And so, from the regulator to this -- this 21 registry body on consent of the doctor and, similarly, 22 reversed. 23 Presumably that would be the condition of 24 a doctor signing up for this registry. 25 COMMISSIONER STEPHEN GOUDGE: Right. And
1171 what would the threshold be for passing information from 2 the registry to the regulator? 3 DR. ROCCO GERACE: Oh, I think we would 4 have to work that out. I couldn't -- I -- I would be 5 reluctant to define it now, but certainly concerns that 6 rise to a certain level. 7 COMMISSIONER STEPHEN GOUDGE: How is it 8 defined in the hospital regulator context? 9 DR. ROCCO GERACE: I will stand to be 10 corrected, but it -- it -- 11 COMMISSIONER STEPHEN GOUDGE: Is it in 12 the legislation? 13 MS. LINDA ROTHSTEIN: Yes, it is. I've 14 got a copy for you, Commissioner. 15 COMMISSIONER STEPHEN GOUDGE: Okay. Do 16 you know it off by heart, Professor Gilmour? You 17 probably do. 18 DR. JOAN GILMOUR: No, actually I just 19 have the sheet that Ms. Rothstein gave me yesterday. 20 COMMISSIONER STEPHEN GOUDGE: Okay. 21 DR. JOAN GILMOUR: So I don't have to 22 have it off by heart, but it is in the -- 23 COMMISSIONER STEPHEN GOUDGE: But it 24 would be -- 25 DR. JOAN GILMOUR: -- Public Hospitals
1181 Act, and -- and -- 2 COMMISSIONER STEPHEN GOUDGE: -- and it 3 would be something like that adapted to the particular 4 circumstances. That is helpful. Thanks. 5 6 CONTINUED BY MS. LINDA ROTHSTEIN: 7 MS. LINDA ROTHSTEIN: Professor Gilmour, 8 any parting words? 9 DR. JOAN GILMOUR: Yes, and I -- my 10 comments are with respect to constructing a system to 11 make things better, going forward. 12 And that's a reminder that if there is a 13 system that will surface complaints, whether you think 14 it's better to have more reports of errors or fewer 15 reports of errors, one (1) thing that does seem to be 16 clear from experience elsewhere is that if you want to 17 have reports of errors or things going wrong, it's 18 important that the system be seen to be one (1), and 19 actually one (1) where making those reports makes a 20 difference. 21 In other words, something happens in 22 response. That it's actually acted on. Because, 23 otherwise, when things go wrong, and people are asked, 24 Well why didn't you tell anybody, the responses would 25 often be. Well, we'd make reports and nothing happened.
1191 So, it's important that there be a goal of 2 the system to make changes in response to concerns that 3 are shown to be well founded. 4 And also that there be resources in the 5 system in order to do that, because that's not a cost- 6 free enterprise. 7 MS. LINDA ROTHSTEIN: Dr. Yarrow...? 8 DR. CATHERINE YARROW: Well, and perhaps 9 I'm going well beyond the mandate of today's discussion, 10 which has really focussed on a complaints-driven process, 11 but we did speak briefly about quality assurance. 12 And, perhaps, in an idealized world in the 13 future, once we have established a complaints process, we 14 might contemplate some type of training and external 15 evaluation on a -- an ongoing basis of participants in 16 this system. 17 And, perhaps, even ultimately develop some 18 kind of self-assessment tool, because individuals are 19 shown not to be good evaluators of their own competence, 20 and the more qualified are likely to underestimate their 21 competence, and the less qualified to overestimate it. 22 So, perhaps, at a future time, we -- we 23 might consider some proactive -- proactive regulation of 24 a quality assurance type in this process as well. 25 MS. LINDA ROTHSTEIN: Interesting. And
1201 finally Professor Sossin...? 2 DR. LORNE SOSSIN: Well I think all the 3 comments I had have come out. 4 MS. LINDA ROTHSTEIN: Okay. 5 Commissioner, we have questions from the OCCO, Ms. 6 Ritacca, from ALST and from DCI, if I understand it. 7 COMMISSIONER STEPHEN GOUDGE: Ms. 8 Ritacca...? 9 10 QUESTIONED BY MS. LUISA RITACCA: 11 MS. LUISA RITACCA: Thank you, 12 Commissioner. I just have a couple of questions for you, 13 Professor Sossin. I'm interested in exploring them with 14 regard to the death investigation complaints process that 15 you spoke about today, and -- and a little bit last week 16 as well. 17 And you articulated a number of ad -- of 18 advantages to -- to that kind of process or mechanism 19 being put in place. I'm wondering if another advantage, 20 that -- that you didn't discuss directly, to such a 21 process is the fact that a complainant or an aggrieved 22 family member would find it more satisfying to be able to 23 complain to a body; that, while maybe still at arm's 24 length from the coroner's system, is closer to the death 25 investigation process than, say, some of the separate
1211 regulators that we were talking about? 2 DR. LORNE SOSSIN: Yeah, I think it's a 3 good question. It allows me to clarify that I think the 4 best way to view this kind of process is not as a 5 substitute for the CPSO, for example, but really whether 6 as a substitute or simply as a better version of what's 7 now existing, which is an internal complaints mechanism 8 within the office of the Chief Coroner. And -- and 9 people are bringing complaints, they are being 10 investigated, and often being investigated quite 11 thoroughly. 12 The problem is, I think, this notion of it 13 being too close within the institution that maybe the 14 source of the complaint -- and again that sometimes the 15 complaint extends to and a lack of supervision of a 16 particular investigating coroner or forensic pathologist 17 -- how can the office responsible for that supervision 18 investigate that kind of complaint. 19 So I think this would really function more 20 as a substitute for the existing internal complaint 21 structure. 22 Now, that said, it -- it's not as if this 23 means the internal structure loses any ability to 24 investigate or deal with error correction. 25 There will still be performance
1221 evaluations as part of a personnel process, and there 2 will still be internal matters that don't arise because 3 of a complaint, but because of something that supervisors 4 of a particular investigation see with respect to 5 individuals involved. 6 So, I think the -- the real value of this 7 would be to take what's already happening within the 8 Office of the Chief Coroner and say, Is there an ability 9 to build in this process model and some separation from 10 the office, itself. 11 MS. LUISA RITACCA: And do you see any 12 role for any of the players within the Coroner's Office 13 in the -- in the complaints process or on the complaints 14 committee, other than witness or...? 15 DR. LORNE SOSSIN: No, you know, this 16 comes back to, you know, I'd said before that you 17 shouldn't devise a process just built on supply, let's 18 say. But I -- I should have added the other side of that 19 coin: You can't devise a process that there is no 20 reasonable prospect of working. 21 MS. LUISA RITACCA: Right. 22 DR. LORNE SOSSIN: So I think as long as 23 you set out the principle, which is we want to make sure 24 this is as -- as arm's length as possible, but also 25 builds on the expertise necessary and captures the sense
1231 of peer assessment, then I think the modalities of design 2 and to what extent it will build on in-house or external, 3 will -- will get sorted out within the confines of 4 available resources and the good ideas that will come up 5 through consultation. 6 But, to me, the process is important; that 7 it not be a complaint process about a particular -- just 8 a particular forensic pathologist or that -- if it's a 9 process about several bodies, families and other affected 10 people don't have to go to those other institutions. 11 So the single portal is one (1) key 12 feature, and the idea of being able to have oversight 13 over a team, although not subject to sanctions, but 14 oversight over a team in terms of quality assurance, is a 15 big part of it. 16 MS. LUISA RITACCA: And -- and my last 17 question is -- and you said -- you just said it in your 18 answer. The idea of a single point of contact. 19 What -- who or what do you think that 20 single point of contact should be? And my -- one (1) of 21 my concerns is that if it remains, say, for example, with 22 the Chief Coroner or with the Chief Forensic Pathologist, 23 then there remains a discretion in that office to -- to 24 move the complaint into this arm's length process. And 25 so...
1241 DR. LORNE SOSSIN: Yeah, I think there's 2 actually some good analogies here of settings where you - 3 - especially if this comes in conjunction with a board or 4 council or this -- 5 MS. LUISA RITACCA: Right. 6 DR. LORNE SOSSIN: -- body over which 7 the Coroner's Office will play a role but not have a 8 controlling role. 9 To have a body that is within the -- for 10 example, the budgeting and governance of the coroner's 11 system but that makes a direct report or an annual report 12 available to the board itself, or where the head of that 13 is hired and fired by the board rather than the Chief 14 Coroner. These are from audit committees and corporate 15 governance to other bodies in the police and law 16 enforcement settings. 17 There are models out there, I think, to 18 achieve that ability to say, We shouldn't be re-inventing 19 a wheel that's going to be expensive and cumbersome and 20 orphaned. But we also want to ensure that it is and 21 appears to be outside the influence of the office that is 22 potentially subject to the investigation. 23 MS. LUISA RITACCA: And how do you -- how 24 do -- well, how would the Coroner's Office or the 25 Government make sure that potentially aggrieved parties
1251 are aware of such a process? 2 Because currently, the Chief Coroner is 3 quite a well-known figure, and that's why many of the 4 complaints go first to the Chief Coroner. 5 How do we -- 6 DR. LORNE SOSSIN: Mm-hm. 7 MS. LUISA RITACCA: -- help steer the 8 complaints to this body? 9 DR. LORNE SOSSIN: Well, I think this is 10 part of the overall shift to public services and to 11 family services that would require institutional capacity 12 as well. 13 And, in fact, in -- I think it was the 14 Shipman Inquiry, there was a line about how you can't do 15 all this with a web site, which was one (1) of the 16 proposals. We'll have all this information, it will be 17 out there on the web site. Well we know not everyone has 18 access to a computer, and that's going to simply result 19 in people not knowing where to go. 20 So if you had, though, a -- whether a 21 bereavement or family services office that was part of 22 the routine death investigation, that there be contact, 23 and that the contact include: Here are the services that 24 are available; here is the information you're entitled 25 to; here's how to navigate the system if you have
1261 concerns. 2 That seems to me going a much greater 3 distance towards this service-oriented model and away 4 from just this insular and inward-looking framework that 5 -- that, arguably, the Coroners Act has set up for us 6 today. 7 MS. LUISA RITACCA: Right. Thank you. 8 Those comments are very helpful. Thank you. 9 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 10 Ritacca. 11 Ms. Esmonde...? 12 13 QUESTIONED BY MS. JACKIE ESMONDE: 14 MS. JACKIE ESMONDE: Good afternoon. My 15 name is Jackie Esmonde. I'm one (1) of the lawyers 16 representing a coalition of Aboriginal Legal Services of 17 Toronto and Nishnawbe-Aski Nation. 18 And I actually wanted to pick up on 19 precisely the theme that My Friend was just asking you 20 about, Professor Sossin, and that is the issue of 21 accessibility of a complaint system to complainants. 22 Which I'm sure you would agree, an effective complaint 23 system has to be accessible? 24 DR. LORNE SOSSIN: Absolutely. 25 MS. JACKIE ESMONDE: There -- you -- one
1271 (1) of the -- sorry. One (1) of the suggestions you just 2 made was with respect to an office that would serve 3 families through the death investigation process from 4 beginning -- from the beginning. Is that -- 5 DR. LORNE SOSSIN: I think that's right. 6 And -- and, you know, within that, the logical extension 7 would be that it would develop expertise, for example, in 8 cultural sensitivity with various religious and ethnic 9 communities that will experience a death investigation in 10 very different ways. 11 For example, we know religious injunctions 12 against autopsies has arisen as a conundrum. When you're 13 just dealing with a public interest mandate, there's 14 going to be no basis on which not to conduct post-mortem 15 examination if one (1) is otherwise called for to get to 16 a better investigative result. 17 So, having a family services office with a 18 mandate to both surface those concerns, make families 19 aware that they can have a venue for expressing them and 20 that they will be meaningfully considered, and to be able 21 to say, And here's what your rights are, here is what the 22 discretion of a Coroner's Office or an investigating 23 coroner or a forensic pathologist would be. All of this 24 seems to me part of what would fall under that rubric. 25 And, like the complaint system, it's one
1281 that has to operate within some umbrella of the death 2 investigation process, but ought not to be one where it's 3 perceived that the very people who are the decision- 4 makers could have a controlling role. 5 So I again see this as part of the 6 transparency, accountability, oversight spectrum. 7 MS. JACKIE ESMONDE: In terms of the 8 services that you're suggesting such an office could 9 provide, is it informational or is it advocacy? 10 DR. LORNE SOSSIN: I would suggest -- and 11 I think looking at other models and seeing what's worked 12 and what the need being responded to looks like in peer 13 jurisdictions would be important, and I haven't done all 14 that work -- but I'd say, at a minimum, information and 15 advice. 16 And I think the question mark becomes when 17 that advice slips into advocacy: Is it still the 18 appropriate institution for that role or is it also a 19 referral service, for example, to pro bono services, 20 legal representation, other bodies including self-help 21 organizations, NGOs, community groups, that might provide 22 more advocacy-related services, because it is hard to 23 imagine the information, and advice being given if that 24 same person has to then put on a different hat, and be 25 the spokesperson.
1291 MS. JACKIE ESMONDE: Now, in terms of 2 making the -- making it accessible, you raise the issue 3 of cultural concerns, communication with families, in a 4 Province such as Ontario, which is very diverse 5 culturally, but also in terms of rural areas, urban, I'm 6 sure you'd agree there can be a number of barriers -- 7 very diverse barriers across the Province to assessing -- 8 accessing a complaint system. 9 DR. LORNE SOSSIN: I think that's -- 10 that's right. But, you know, if you're looking at this 11 now not as the skill set of the science, or the medicine, 12 but a communicative role as well, one could imagine 13 harnessing existing resources around community based 14 supports, and simply providing those existing 15 institutions with the capacity to perform some of this 16 role, in the context of a death investigation, in areas 17 where you're not going to have physical access to an 18 office, or to -- 19 MS. JACKIE ESMONDE: Mm-hm. 20 DR. LORNE SOSSIN: -- an individual on 21 staff. So I -- I think as long as the principle is 22 embraced, the practical challenges can be addressed in -- 23 in again a collaborative consultative way with the 24 communities that we've seen are disproportionately 25 affected -- or affected, when they are affected in -- in
1301 particularly intense ways. 2 MS. JACKIE ESMONDE: Okay. Thank you. 3 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 4 Esmonde. 5 Finally, Ms. Fraser. 6 MS. SUZAN FRASER: My questions have been 7 answered. 8 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 9 Fraser. 10 MS. LINDA ROTHSTEIN: So, Commissioner, I 11 just want to thank all of our panellists. Dr. Gerace, 12 thank you very much for returning. Professor Gilmour, 13 Dr. Yarrow, Professor Sossin, thank you again. We really 14 enjoyed this morning. It's been very helpful. 15 COMMISSIONER STEPHEN GOUDGE: Yes. From 16 my part, and on behalf of all of us, thank you. It has 17 been an enormously informative morning and an important 18 part of what we have to think about. 19 So thanks very much. We will rise then 20 until 9:30 tomorrow morning. 21 22 --- Upon adjourning at 12:13 p.m. 23 24 25
1311 2 3 Certified Correct, 4 5 6 7 8 ____________________ 9 Rolanda Lokey, Ms. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25