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Motherisk Finds Woman Had 48 Drinks per Day

November 16, 2014 permalink

The controversy over Motherisk is expanding. Addenda to our previous Motherisk article show a defense posted by the Ontario Association of Children's Aid Societies. Not shown is an editorial in the Toronto Star calling for an investigation of Motherisk.

Now mother Yvonne Marchand has told her story, broadcast in emails to dozens of recipients including fixcas. Her test came out of a mom vs dad dispute in which she was required to provide a hair sample to Motherisk. Expand to read her transmission letter.



Good afternoon,

Three years ago I was in an extremely heated custody battle with my ex. He was very upset at the amount of child support he was ordered to pay me. Because of this he began making false allegations regarding me and alcohol consumption, the CCAS got involved and gave him my daughter.

The CCAS disregarded laws while dealing with me (i.e. I should have been before the courts within 5 days of apprehension; they did not let me see my daughter until I submitted to providing hair strand test from Motherisk, even though the visits would be monitored at an access center, and many more examples that I can provide as I fought them as hard as I could in court.)

I challenged the results of the hair strand test in court as I am sure (then and now) that they were false and/or inaccurate. I got help from another toxicology lab (Viagard - Harvey Tenenbaum, Research Director) and they agreed that the results could not be accurate. I lost at court as I was self-represented and did not know there was a need to or even how to qualify an expert. Marshall Matias, lawyer for CCAS would not let me question my expert and so the judge had no choice but to side with CCAS and Motherisk.

Both her father and CCAS objected to my having unsupervised visits but luckily the judge sided with me and I get to see my daughter six hours per week unsupervised. They refuse to give me overnights until I submit another hair strand test to Motherisk which I am not inclined to do as I dispute the results of both previous test they did on me.

Since I gave custody to her father, feeling that is the only way I could spend time with my daughter unsupervised, he has not taken care of her. He gave my daughter to his mother; I do not approve of this. Her mother lives in a neighborhood I don't think is appropriate (community housing at Jane and Woolner) when between her father and I we make over $120,000 per year. Her grandmother spanks her with a "spank spoon". She complains grandma has too many cockroaches. She has a poor diet (not well balanced), she has barely grown. Her behaviour at school is sometimes problematic. She wants to be with me because I have a beautiful Disney Princess bedroom waiting for her, at present she is in a one bedroom with grandma.

I do intend to go back and fight for custody someday, but am taking time to recover as losing my daughter whom I love so dearly has taken a very hard emotional toll on me. If there even the slight possibility of Motherisk having erred in some way on any of the tests they performed, be it drugs or alcohol, and no one cares enough to investigate the issue, it is a very serious injustice and anyone who is not willing to put in the time or effort should not be working in a government position where you are expected to represent the tax payers. You should not be turning a blind eye to this issue as it affects more than just a handful of cases and not only criminal cases.

Kind regards,

Yvonne Marchand

Source: email from Yvonne Marchand

Here is the test result (pdf) along with an analysis by Harvey Tenenbaum (pdf) of Viaguard.

Mr Tenenbaum quibbled with the test results for cannabis. But for alcohol, he found that the reported level of use by the client averaged 48 drinks per day, a level that would have led to her death. In reality, Yvonne Marchand is an office worker who showed no signs of office drunkenness during the months in question.

Addendum: Rachel Mendleson continues to hammer at Motherisk in the Toronto Star. Family lawyers are advising their clients not to submit hair samples to Motherisk. If they do test samples, the same lawyers will probably challenge the reliability of the results.



Motherisk concerns a ‘wake-up call’ for family lawyers

The Family Lawyers Association says concerns about the reliability of the hair drug tests performed by the Motherisk lab at Sick Kids will compel lawyers to question expert evidence.

Madeleine Meilleur
Ontario’s Attorney General Madeleine Meilleur, left, said the the government is “reviewing” the appeal court decision, but did not give a timeline for the review

The Family Lawyers Association says the Hospital for Sick Children has “an obligation” to address the unanswered questions surrounding the hair-strand drug and alcohol testing performed by its Motherisk laboratory.

However, even if Sick Kids breaks its silence, the recent Court of Appeal decision that cast doubt on the science Motherisk presented in a 2009 trial will change the way child welfare cases play out in courts across the province, according to the association’s acting chair, Katharina Janczaruk.

“We want to know what has been going on. Frankly, given the amount of reliance we’ve placed in them, they have an obligation to account for it,” Janczaruk said. “But (does) this means that they provide an explanation and we can go on as we did before? I don’t think that’s right. This is a wake-up call.”

More than anything, she said, the case is a reminder that “expert evidence always needs to be challenged.”

In response to questions from the Star on Monday, Sick Kids spokeswoman Matet Nebres said only that the hospital is “reaching out to the Family Lawyers Association of Ontario directly.”

Meanwhile, at Queen’s Park, Ontario’s Attorney General Madeleine Meilleur reiterated that the government is “reviewing” the appeal court decision, but did not give a timeline for the review.

Despite concerns from family and criminal lawyers, a former family court judge, children’s aid societies and opposition critics in the legislature, Sick Kids has repeatedly defended the Motherisk laboratory program, which is valued “in the millions,” according to a recent estimate.

The hospital has not said how many child welfare and criminal cases have been influenced by the same type of analysis Motherisk provided in the case of Toronto mom Tamara Broomfield.

Motherisk no longer tests hair samples for cocaine with the technique that was used in the Broomfield case, according to Sick Kids. But the hospital has not said what type of test the lab currently uses, when it was implemented, or whether it is the technique that was identified in Broomfield’s appeal process as the “gold-standard.”

Until these questions are answered, Toronto family lawyer David Miller said he is “refusing” to allow his clients to submit to hair-strand drug testing at Motherisk.

“These results are being used to remove children from families,” Miller said. “When we are making decisions as fundamental and important as these, we should be using the gold-standard test.”

Broomfield, 31, was convicted of giving her toddler, Malique, a near-lethal dose of cocaine in 2005, based, in part, on testimony from Motherisk’s founder and director, Gideon Koren. Koren said that hair testing showed Malique had regularly ingested very high doses of cocaine for more than a year leading up to the 2005 overdose.

Broomfield’s cocaine-related convictions were overturned in October after fresh evidence was admitted from Craig Chatterton, deputy chief toxicologist in the office of the chief medical examiner in Edmonton. Chatterton criticized the technique Motherisk used to test Malique’s hair as “preliminary,” and said the lab did not seek confirmation with a gold-standard test.

A report from a third expert, Utah toxicologist Douglas Rollins, supported Motherisk’s analysis. Sick Kids has defended the technique used in the Broomfield case as “highly reliable,” based on cross-testing.

Miller predicted that concerns about the reliability of Motherisk’s hair testing “will become part of court cases.”

“The report from Dr. Chatterton — there were questions there that need answering,” he said. “I’m still waiting for the response from Motherisk.”

Tammy Law, another family lawyer in Toronto, said she has also stopped agreeing to have her clients’ hair tested at Motherisk, and will now look at hair-strand test results “with a lot more care.”

“I don’t think people are going to be so readily accepting of these tests anymore, particularly in cases where there is no other evidence … of addiction,” she said.

On Monday, MPP Jim McDonell, Progressive Conservative critic for children and youth services, said the province has had “enough time to come up with a solution,” and provide children’s aid societies with direction.

“This government has the ability to do that. They have access to the experts. It’s time that they use it,” McDonell said. “These are our most vulnerable. These are people who need help. We just need to take a stand.”

Attorney General Madeleine Meilleur said on Monday that the decision in the Broomfield case came after the appeal court “learned there was competing evidence” on the Motherisk test, but that the court “didn’t make any decision on the test, per se.”

“Sick Kids has a lot of confidence in the test. The trial judge is responsible to accept the evidence that is presented to him or her,” she said. “So, it’s up to the trial judge to make a ruling, not the attorney general.”

Asked about the concerns that have been raised by family lawyers, Meilleur said, “That’s why we are reviewing the decision of the court and the argument that was put forward.”

She said she did not know how soon the review would be completed, noting that there are three ministries involved, including the Ministry of Children and Youth Services and the Ministry of Health and Long-Term Care.

Last year, Ontario’s Information and Privacy Commission compelled Sick Kids to release information requested under Freedom of Information legislation that showed Motherisk conducted 23,604 drug and/or alcohol hair tests in 2011. Of those, 95 per cent were billed to public agencies, such as children’s aid societies. Each hair sample could be tested as many as 12 times, according to Sick Kids.

According to the 2013 decision, Motherisk said it was the “primary provider” in Canada of testing for long-term substance-abuse monitoring for social service agencies. The hospital said the program was valued “in the millions,” the decision states.

In light of the concerns surrounding Motherisk, Janczaruk said she reminded members in a newsletter Monday to “be vigilant” and “always ask questions” about expert evidence from the outset of child welfare cases.

“The thing about Motherisk, is that is has really been treated as sacred,” Janczaruk said. “This case indicates that that is an approach that is detrimental to the client.”

Sick Kids said last week that because cases of ingestion of cocaine in children are “extremely rare,” the hospital “has not initiated an extensive review of all hair-testing cases.” Koren and Sick Kids CEO Michael Apkon have declined multiple interview requests.

The Court of Appeal did not comment on how Broomfield’s son got the cocaine that resulted in the 2005 overdose, which left him with permanent brain damage. She has abandoned her appeals on other child-abuse convictions related to the boy.

Source: Toronto Star

Addendum: The province has responded to the press barrage by announcing a review of Motherisk.



Ontario launches review of hair drug tests performed at Sick Kids

Five years’ worth of Motherisk lab’s tests used in child-protection and criminal cases will get a closer look, after a Star investigation.

Queen’s Park will probe five years’ worth of hair drug tests performed by the Hospital for Sick Children, used in child protection and criminal cases, amid an ongoing Star investigation.

Attorney General Madeleine Meilleur said the independent review of Motherisk laboratory program at Sick Kids, led by retired Appeal Court Justice Susan Lang, is a “first step” that could spark a much larger inquiry.

Lang will specifically examine the “adequacy and reliability” of the hair testing method used by Motherisk between 2005 and 2010 in child protection and criminal proceedings, Meilleur said.

Children’s aid societies depend heavily on Motherisk’s hair tests, which are routinely accepted without challenge in courts across Ontario as evidence of parental substance abuse, and have influenced an unknown number of child custody decisions.

Cabinet decided Wednesday to launch the investigation, following a Court of Appeal decision that cast doubt over the evidence Motherisk presented in the trial of Toronto mother Tamara Broomfield.

Broomfield was found guilty in 2009 of giving her toddler a near-lethal dose of cocaine in 2005, based in part on Motherisk’s tests of the boy’s hair. Her cocaine convictions were tossed after fresh expert evidence criticized the tests as “preliminary.”

She served more than half of a seven-year prison sentence before she was released last year on bail, pending appeal, and lost custody of her son.

Meilleur said the retired judge’s review is the best way to ensure public confidence in the system.

“Part of the purpose of this review will be to determine whether additional reviews should be undertaken with respect to specific cases or classes of cases,” she said. “This is a first step. It may end there.”

Lang will submit a report to the province by next June 30, Meilleur said.

The attorney general said Lang, who was appointed to the bench in 1989 and named to the Court of Appeal for Ontario on 2004, is an expert in family law.

“We have no doubt she is the best person to do that,” Meilleur said.

Sick Kids spokeswoman Gwen Burrows said the hospital “welcomes the independent review” and is “confident that the questions which have been raised over the past few weeks will be addressed through this process.”

“Our teams look forward to working closely with Justice Lang throughout this review,” Burrows said in an email. “We will carefully consider any recommendations that may be made to improve processes associated with this complex and evolving area of analytical laboratory science.”

Toronto criminal lawyer Daniel Brown praised the province’s decision to launch the probe.

“The government has taken a huge step forward to address the concerns surrounding forensic hair testing raised in the Broomfield case,” said Brown, who tried in 2010 to get her trial judge to reopen her case to take another look at the scientific evidence.

“Moving forward, I hope that courts will exercise caution in relying on the results of hair-testing analysis without assurances that the science is an accurate indicator of alcohol or drug consumption,” he said.

The Motherisk review, which will be officially announced on Friday, is the latest in a series of high-profile inquiries into Sick Kids, dating back decades.

In October 2008, Ontario Court of Appeal Justice Stephen Goudge issued a report lambasting forensic pathology’s state of affairs in the wake of the inquiry into flawed child death investigations by former Sick Kids pediatric pathologist Charles Smith.

In 1984, then Justice Samuel Grange led a royal commission investigating a series of baby deaths at Sick Kids, but in the end, no one was held criminally responsible.

Calls for the province to examine past Motherisk cases have been mounting since the October appeal court decision in the Broomfield case.

At Broomfield’s trial, Motherisk founder and director Gideon Koren testified that tests of the boy’s hair showed he had regularly ingested very high doses of cocaine for more than a year leading up to a 2005 overdose.

The appeal court decision came after Craig Chatterton, deputy chief toxicologist in the office of the chief medical examiner in Edmonton, said the “gold-standard” technique was not used.

Chatterton, who gave his opinion as an independent consultant, also said the tests should have been conducted in a forensic lab, rather than in a clinical lab, like Motherisk.

Based on the conclusions Motherisk presented, Chatterton claimed it was “not possible” to determine whether the boy had ingested or been exposed to cocaine over an extended period.

Despite repeated requests, Sick Kids has not said how many other child welfare cases were influenced by the same type of analysis. The hospital has defended the reliability of its Motherisk program, as well as the test used in the Broomfield case.

Sick Kids has said Motherisk has been using the gold-standard technique to test hair for cocaine since 2010, and defends the technique used in 2005 in the Broomfield case as “highly reliable,” based on cross-testing.

That leaves a question hanging over at least five years of cases.

Motherisk performed more than 23,000 hair tests in 2011 — 95 per cent of which were billed to public agencies, such as children’s aid societies, according to documents related to a freedom of information request. (Sick Kids has said each hair sample could be tested up to 12 times.)

In late 2009, before Motherisk switched to the gold-standard technique, the lab told children’s aid societies in a newsletter that cocaine was “by far” the most common drug detected in the lab.

The Star investigation has revealed international experts, a British High Court and a U.S. government department have raised questions about the validity of the drug and alcohol hair tests in general.

Meilleur said the review would be limited to the hair drug tests Motherisk performed from 2005 to 2010, using the technique that was used in the Broomfield case, called “immunoassay.”

In defending the Motherisk program, Sick Kids has repeatedly pointed to a report written by Utah toxicologist Douglas Rollins, which was filed in court during Broomfield’s appeal process, and supported Motherisk’s analysis in the case as “valid and reliable.”

However, when Rollins was cross-examined by Broomfield’s lawyer, he conceded the analysis did not meet the international standards for evidence presented in court, according to a transcript of the proceeding, which did not exist before the Star ordered it earlier this month.

Rollins also acknowledged that the lab did not present the results as “unconfirmed,” contrary to forensic standards, and that he would expect a facility used for investigative purposes to be accredited as a forensic lab.

Motherisk is accredited as a clinical lab.

The appeal court ruling in the Broomfield case was issued after the Crown agreed that the fresh expert evidence should be admitted and Broomfield’s cocaine convictions tossed. It did not address the reliability of the Motherisk program.

Broomfield, meanwhile, has abandoned her appeals of other child-abuse convictions related to her son.

The boy, now 11, suffered permanent brain damage as a result of the 2005 cocaine overdose. The October decision did not say how he gained access to the drugs. After her son’s overdose, Broomfield told police that she had found drugs in her apartment building before, and recalled an instance when the boy had picked up a bag of crack in the building, court documents state.

Source: Toronto Star