Janet Bruce v. London Health Sciences Centre, 2014 HRTO 106

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janet Bruce

Applicant

-and-

London Health Sciences Centre

Respondent

DECISION

Adjudicator: Jo-Anne Pickel Date: January 24, 2014 Citation: 2014 HRTO 106 Indexed as: Bruce v. London Health Sciences Centre

APPEARANCES

Janet Bruce, Applicant Self-represented

London Health Sciences Centre, Respondent André Nowakowski, Counsel

Introduction

1This Application arises from a tragic set of circumstances.

2On December 23, 2010, Janet Bruce filed an Application in which she alleged discrimination against her daughter, Robin Dawn Bruce, who is now deceased. Ms. Bruce alleged that the respondent discriminated against her daughter because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, Ms. Bruce claimed that the respondent provided her daughter with inadequate care because she was an intravenous drug user. According to Ms. Bruce, the respondent’s alleged discriminatory treatment of her daughter led to her untimely and tragic death on January 29, 2010.

3By Case Assessment Direction dated July 5, 2013, the Tribunal directed that the matter be scheduled for a preliminary/summary hearing by teleconference. The parties were directed to address three issues in the hearing: (1) whether the Application should be dismissed in whole or in part because it was not filed within the one year time frame set out in s. 34 of the Code; (2) whether there is no reasonable prospect that the applicant will be able to establish a link between the respondents’ conduct and a protected ground under the Code; and (3) whether the Application is outside of the Tribunal’s jurisdiction because Ms. Bruce’s daughter passed away before its filing.

4I sympathize deeply with the grief Ms. Bruce clearly has experienced, and no doubt will continue to experience, from the death of her daughter and the circumstances surrounding her death. I also fully understand that Ms. Bruce believes that the respondent failed both her and her daughter. However, for the reasons set out below, I find that there is no reasonable prospect that Ms. Bruce will be able to establish a link between the alleged inadequate care provided by the respondent and her daughter’s disability. In the absence of any reasonable prospect of establishing a link between the respondent’s actions and the ground of disability, the Application must be dismissed as having no reasonable prospect of success under the Code.

Reasonable Prospect of success

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27 and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10. The Tribunal also does not have jurisdiction over claims of negligence or allegations of breaches of the law or policies that are unconnected to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

7The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

8However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences likely can be drawn from the any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he or she has experienced discrimination under the Code.

9The question that the Tribunal must decide at a summary hearing is whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

10Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, applications may be found to have no reasonable prospect of success.

11As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

12Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

13Ms. Bruce’s daughter attended at the respondent’s emergency room approximately 20 times between 2005 and December 2009 for the treatment of infections consistent with Community Acquired Methicillin Resistant Staphylococcus (“CA-MRSA”). According to Ms. Bruce, she and her family sought to provide treating physicians with information relating to her daughter’s deteriorating physical and mental health. Ms. Bruce alleged that these physicians responded with reckless disregard for her daughter’s life. She claimed there are strong and compelling reasons to believe that stigma towards her daughter’s drug addiction led the respondent to provide care that fell below standards that typically would be provided to patients who are not addicted to drugs.

14Ms. Bruce set out several forms of alleged discriminatory treatment in the Application. Her main claims can be summarized as follows:

a. Treating physicians allegedly dismissed Ms. Bruce’s daughter’s problems as an addiction issue rather than a psychiatric issue.

b. Treating physicians failed to force Ms. Bruce’s daughter to be admitted to the hospital involuntarily on the stated basis that she did not meet the criteria for psychiatric involuntary admission. Ms. Bruce is convinced that her daughter’s resistance was due to an undiagnosed serious psychotic disorder that impeded her ability to care for herself. The hospital did admit Ms. Bruce’s daughter involuntarily for 24 hours but discharged her the next day with a prescription and a bus ticket.

c. Treating health care practitioners did not contact Ms. Bruce or her family to discuss concerns, treatment options or discharge plans.

d. In July 2009, Ms. Bruce’s daughter allegedly was given a prescription for a large amount of a dangerous narcotic when she had a severe addiction to that same narcotic.

e. Treating physicians allegedly overlooked and/or ignored evidence that community providers were unable to access Ms. Bruce’s daughter to ensure compliance with prescribed medical treatment. This included the administration of antibiotics necessary to treat abscesses caused by CA-MRSA.

f. Treating physicians allegedly failed to complete the testing required to diagnose Infective Endocarditis despite notations in Ms. Bruce’s daughter’s chart that this condition should be ruled out.

g. Ms. Bruce’s daughter allegedly resisted being forced to go to the hospital for obviously needed medical treatment due to the shame and guilt she felt about her addiction and her health conditions.

15Ms. Bruce’s daughter attended at the respondent’s emergency room for the last time on December 27, 2009. She was brought in by ambulance due to an overdose. Ms. Bruce was not present but spoke to one of the emergency room nurses over the telephone. Ms. Bruce claimed that any person in her daughter’s circumstances would have required a lengthy admission to the hospital. She claimed that a reason that the respondent did not admit her daughter was an indifference to persons who are addicted to drugs. Ms. Bruce alleged that, if her daughter had been hospitalized, the respondent would have discovered that she was suffering from Infectious Endocarditis and that she would have been medically detoxified. She claimed that this would have saved her daughter’s life. Instead her daughter died on January 29, 2010.

16The respondent denied that it provided inadequate care to Ms. Bruce’s daughter. Among other things, the respondent stated that Ms. Bruce’s daughter refused offers of detox to deal with her drug addiction on her last visit to the hospital. While it appears that Ms. Bruce’s daughter did not sign the form that is required when a person leaves the hospital against a doctor’s orders, there is a note in her patient chart stating that she had refused to undergo detox or to stay in the hospital. The respondent states that Ms. Bruce’s daughter’s similarly declined all of the respondent’s offers of detox and offers of entry to other rehabilitation programs offered by the respondent.

17The respondent also stated that, when Ms. Bruce’s daughter was a patient, she informed the respondent that she did not want her mother involved in her care. She also advised the respondent that she did not consent to any of her personal health information being disclosed to her mother. In particular, the respondent claimed that, when Ms. Bruce’s daughter became aware that Ms. Bruce had improperly accessed her medical records, she asked that her records be placed under a “lockbox restriction” to ensure that Ms. Bruce could no longer gain access to them.

Procedural Matters

18Before I set out the parties’ submissions, I find it appropriate to address certain procedural issues that arose at the summary hearing.

19The Tribunal scheduled the summary hearing in a Case Assessment Direction (“CAD”) issued in July 2013 after the respondent had filed a Request for Summary Hearing. The respondent made full written submissions in support of its Request for a Summary Hearing in September 2012. Ms. Bruce initially did not file responding submissions but, following the Tribunal’s February 2013 CAD, filed submissions in April 2013. In its July 2013 CAD, the Tribunal granted the respondent’s Request for Summary Hearing in this matter. The hearing took place on November 5, 2013.

20At the hearing, I asked Ms. Bruce to proceed first on the issue of whether the Application stood a reasonable prospect of success. After she provided her submissions, I informed her that I would provide her a right of reply if she had further submissions that she wished to make in response to the respondent’s submissions. The respondent made comprehensive submissions in support of the respondent’s position that the Application stood no reasonable prospect of success. All of the respondent’s submissions stemmed from the written submissions that it had filed in support of its Request for a Summary Hearing in September 2012. Ms. Bruce indicated that she wished to reply to the respondent’s submissions but that she was not prepared to address the level of detail in the respondent’s oral submissions. She also indicated that she had not taken notes during the submissions and therefore was not prepared to reply to them.

21I asked the respondent’s counsel whether the respondent would consent to Ms. Bruce filing any reply submissions in writing. The respondent’s counsel indicated that the respondent would not consent to this arrangement since Ms. Bruce had notice of the details of the respondent’s position for over a year prior to the summary hearing. I accepted the respondent’s submissions that Ms. Bruce had a full opportunity to review the respondent’s written submissions in preparation for the hearing. These submissions were filed well over a year before the hearing in support of the respondent’s Request for a Summary Hearing in September 2012. Therefore, Ms. Bruce had ample time to consult them prior to the summary hearing.

22I advised the parties that I would instead summarize what I found to be the main points made by the respondent’s counsel in his oral submissions, all of which were also set out in the respondent’s written submissions. After each point that I summarized, Ms. Bruce provided me with her submissions in reply.

23At one point, Ms. Bruce sought to read aloud, in the hearing, the written submissions she had filed with the Tribunal in April 2013. I advised her that I had reviewed her written submissions. I also advised that, in fact, I had her written submissions in front of me and therefore there was no need for her to read them in the hearing. Instead, I asked her whether there were any additional submissions that were not contained in her written submissions that she wished to make in response to any submissions made by the respondent. Ms. Bruce then continued to reply to each of the points I summarized. Ms. Bruce offered to provide a further written reply if necessary. I determined that further written submissions were unnecessary. I am satisfied that I have a thorough understanding of Ms. Bruce’s position from her Application, Reply, written submissions in response to the Respondent’s Request for Summary Hearing and her able oral submissions at the summary hearing.

Submissions

24When asked what information she would seek to rely upon in a hearing on the merits to establish a breach of the Code, Ms. Bruce raised the following information in particular.

25First, she indicated that she would rely upon her daughter’s medical records. She submitted that, on almost every page of her medical records, her daughter is identified as an IV drug user. She claimed that this supported her position that her daughter was treated differently due to her IV drug use.

26Ms. Bruce also stated that she would also rely upon her own testimony about things her daughter had said and events she herself had witnessed. For example, Ms. Bruce stated that she would testify that she faced great resistance from her daughter when trying to force her to go to the hospital for obviously needed medical treatment. In her Application, Ms. Bruce stated that her daughter told her and hospital staff things like “I couldn’t do it any more”, “I will overdose”, “I can no longer cope” and “I hate my life”. Ms. Bruce stated that she would testify that her daughter tried to avoid being labeled a drug addict. She would testify that her daughter’s feelings of shame and guilt about her personal situation drove her into almost complete social isolation. Ms. Bruce stated that she would also testify that she attempted to convince the hospital to admit her daughter involuntarily but doctors refused and said her daughter did not qualify for involuntary admission under the Mental Health Act.

27Ms. Bruce also stated that she would testify that she had met with the head of the respondent’s emergency department who allegedly told her that physicians only look at the medical information from a patient’s particular visit, not their medical history. Ms. Bruce argued that such an approach falls below the standard of care required of the hospital and fails to comply with the policies of the Ontario Medical Association.

28Ms. Bruce also submitted that she would seek access to the medical records of non-IV drug using patients diagnosed with CA-MRSA to show that her daughter was treated differently due to her drug addiction. Finally, Ms. Bruce stated that she would seek to rely on relevant reports such as “Forsaken: The Report of the Missing Women Commission of Inquiry”, the report arising from the inquiry conducted into the police investigation into women reported missing from the Downtown Eastside of Vancouver.

29The respondent submitted that none of the information referred to by Ms. Bruce would establish a link to the Code. In particular, the respondent argued that a disagreement with a clinical diagnosis or medical treatment decisions does not establish a violation of the Code. The respondent submitted that a copy of Ms. Bruce’s daughter’s medical record is not sufficient to establish discrimination. According to the respondent, the fact that a medical professional would note on a medical record that an individual is an IV drug user does not, in itself, establish a link to the Code. The respondent submitted that it is the responsibility of medical professionals to note relevant information about a patient in their medical record.

30The respondent argued that a hospital’s failure to force a person to submit to treatment involuntarily does not, in itself, violate the Code. The respondent argued that a capable person has the right to refuse treatment, including necessary or life-saving treatment. Strict statutory criteria must be met under the Mental Health Act to detain a person against their will. The respondent argued that it had no authority to act against Ms. Bruce’s daughter’s wishes in the circumstances of this case. It submitted that it did not discriminate against Mr. Bruce’s daughter by not forcing her to be admitted to the hospital involuntarily.

31The respondent submitted that its failure to disclose her daughter’s medical information to Ms. Bruce or her family was not discriminatory. The respondent stated that it was bound by the Personal Health Information Protection Act which prohibits disclosure of a patient’s medical information to third parties including a patient’s family. Also, as noted above, the respondent stated that Ms. Bruce’s daughter advised the respondent that she did not want her mother involved in her care and that she did not consent to any of her personal health information being disclosed to her mother.

32In addition, the respondent argued that the Application stands no reasonable prospect of success due to the fact that Ms. Bruce’s daughter cannot testify. According to the respondent, Ms. Bruce’s views on what her daughter may or may not have felt or thought during the period before her death are hearsay. It argued that these assertions are not capable of proof on a balance of probabilities in the absence of Ms. Bruce’s daughter.

33Finally, the respondent argued that Ms. Bruce was seeking to rely on her own personal beliefs, generalizations and speculation to support many of her allegations that her daughter’s disability was a factor affecting the respondent’s actions/inactions in providing medical care to her daughter.

Analysis

34The question that the Tribunal must decide in this case is whether Ms. Bruce can point to evidence, beyond her own assumptions or beliefs, that can establish that her daughter experienced discrimination under the Code. After carefully reviewing all of the written materials and caselaw filed by the parties and considering their submissions in the summary hearing, I must find that there is no reasonable prospect that evidence Ms. Bruce has or that is reasonably available to her can show a link between the care provided by the respondent and her daughter’s disability.

35In many cases in which a summary hearing is held, applicants are not in a position to point to any evidence beyond their own strongly held suspicions to support their belief that a respondent’s actions were linked to a Code ground. In such a situation, the Tribunal must dismiss an application as having no reasonable prospect of success. Although I understand that Ms. Bruce believes that the evidence available to her is sufficient to establish a nexus to the Code, for the reasons set out below, I disagree.

36Even if Ms. Bruce were to successfully establish that the hospital provided her daughter with inadequate care (which the respondent strongly denies), that is not enough to make out a violation of the Code. It is clear that the Tribunal does not have jurisdiction over claims of negligence that are not connected to one of the grounds of discrimination set out in the Code. Questions about the standard of medical care provided by physicians may form the basis for an action in negligence or for a complaint to the College of Physicians and Surgeons of Ontario. Human rights tribunals have consistently held that they will not second-guess the professional decisions of medical care providers unless there exists evidence of discrimination based on a prohibited ground. See Wilson v. Dixie Road Medical Association, 2011 HRTO 1607; TenBruggencate v. Elgin (County), 2010 HRTO 1467; Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital, 2006 BCHRT 15 (“Egan v. Kennedy”); and McDonald v. O’Malley and B.C. (Ministry of Public Safety and Solicitor General), 2005 BCHRT 154.

37In order to make out a violation of the Code, Ms. Bruce would have to establish a link between the respondent’s alleged actions/inactions and her daughter’s disability. I find that Ms. Bruce has failed to point to any evidence she could advance in a hearing that could reasonably establish that her daughter’s disability was a factor in any of the respondent’s actions/inactions in providing medical care to her daughter.

38I understand that Ms. Bruce is convinced that there are strong and compelling reasons to believe that stigma towards her daughter’s drug addiction led the respondent to provide care that fell below the standard of care that typically would be provided to patients who are not addicted to drugs. However, her suspicions of a link to the Code, no matter how strongly held, are not enough to make out discrimination under the Code. See Forde at para. 17.

39The fact that Ms. Bruce’s daughter’s IV drug use was noted on most pages of her medical records is insufficient to establish a link to the Code. There are very sound reasons why this information would be relevant to a person’s medical treatment and would typically be noted in her medical records. See Egan v. Kennedy at para. 23.

40Likewise, Ms. Bruce’s disagreement with the respondent’s judgment that her daughter did not meet the conditions for involuntary admission under the Mental Health Act is insufficient to establish a violation of the Code. While Ms. Bruce believes that the respondent’s judgment on this issue was tainted by discrimination due to her daughter’s disability, she has pointed to no evidence that could reasonably establish such a link. She has also pointed to no evidence that, but for her daughter’s drug use, the respondent’s medical staff would have admitted her involuntarily under the Mental Health Act.

41I also find that Ms. Bruce’s proposed testimony is insufficient to establish a link between the respondent’s actions/inactions and her daughter’s disability. Based on the parties’ materials, it is evident that Ms. Bruce was not present for many of the interactions between her daughter and the health care professionals who provided medical care to her daughter. As noted above, Ms. Bruce indicated that she could provide direct testimony about her meeting with the head of the respondent’s emergency department and various health care professionals employed by the respondent. However, at most this proposed testimony likely would establish a disagreement over her daughter’s care or, at most, the provision of inadequate care. Ms. Bruce’s submissions as to the reasons for this alleged inadequate care are based on her own speculation and beliefs as to the reasons for the respondents’ actions/inactions in this case. As noted above, for an Application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond speculation to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

42As noted above, Ms. Bruce stated that she would be able to testify that she faced great resistance from her daughter when trying to force her to go to the hospital for obviously needed medical treatment. Her testimony on the reasons for her daughter’s resistance would at best be hearsay testimony based on statements made to her by her daughter. According to Ms. Bruce, she would testify that her daughter’s feelings of shame and guilt about her personal situation drove her into almost complete social isolation. In the Application, Ms. Bruce states that her daughter’s attempts to avoid going to the hospital were due to the stigmatization and humiliation she felt during hospital visits when her drug addiction could no longer be denied to the respondent’s staff.

43Based on the parties’ submissions, I accept that Ms. Bruce’s proposed testimony on this issue might establish that her daughter felt shame and guilt because of her disability and that she resisted going to the hospital for necessary medical care. However, there exist a variety of broader societal and personal factors that might lead an individual such as Ms. Bruce’s daughter to feel stigmatized or to feel guilt or shame about their situation. In her Application, Ms. Bruce states “it is my knowledge that Robin felt she was treated with disdain and indifference at the hospital and felt very ashamed of her addiction disease and co-morbid health conditions.”

44It is not clear whether Ms. Bruce would be able to testify as to specific statements made to her by her daughter that her feelings of stigmatization arose, at least in part, from specific actions/inactions of the respondent rather than from a general reluctance to disclose her addictions or from some undiagnosed psychotic disorder, as Ms. Bruce herself alleged. However, even assuming that Ms. Bruce could provide such testimony, her testimony on this point would be hearsay. That is, it would be second-hand testimony based on statements her daughter made to her before her death.

45Sadly, Ms. Bruce’s daughter would not be available to be cross-examined with respect to why she felt the respondent’s staff treated her with disdain and indifference and why she believed that this treatment was linked to her disability. In the absence of testimony and cross-examination of her daughter on such critical issues, I find that there is no reasonable prospect that Ms. Bruce could satisfy her legal onus of proving that her daughter’s disability was a factor in the respondent’s actions/inactions in relation to her care.

46Finally, there was no indication in the materials or in the parties’ submissions that Ms. Bruce could provide any testimony, whether direct or hearsay testimony, with respect to certain key facts asserted by the respondent. These factual assertions arise from her daughter’s interactions with the respondent’s medical staff for which Ms. Bruce was not present. Therefore, the Tribunal would not have the benefit of any testimony from the applicant’s side with respect to key factual assertions made by the respondent including the following: that Ms. Bruce’s daughter informed the respondent that she did want Ms. Bruce involved in her care; that she asked the respondent not to contact her family; that she asked that her health information not be shared with her family; and that she refused treatment and admission to the hospital on more than one occasion. As well, there is no indication that Ms. Bruce would be able to provide any specific evidence as to any of the interactions between her daughter and the respondent during her daughter’s last visit to the hospital. These are key relevant factual issues that would need to be addressed in this case. In the absence of testimony from either Ms. Bruce or her daughter, the only testimony on these issues would be testimony from the respondent’s witnesses. This is an additional factor that supports my conclusion that this Application has no reasonable prospect of success.

47In addition, I find that Ms. Bruce’s intention to seek production of the medical records of non-IV drug using patients diagnosed with CA-MRSA has no reasonable prospect of establishing a link to the Code. To begin, the production of such materials likely would risk infringing the privacy rights of countless individuals who would require notice and an opportunity to provide submissions in regards to the production of such materials. However, even if this material were produced, I find that there is no reasonable prospect that such large scale production would establish the link the the Code required in this case due to the unique individual circumstances and factors that no doubt would be involved in the treatment of each individual patient.

48Finally, I find that reports into the systemic marginalization of IV drug users and other population groups also would not establish a link between the respondent’s actions/inactions and Ms. Bruce’s daughter’s disability. While such systemic evidence may be relevant to establishing the context for particular human rights issues, applications still must be decided on their own facts. This Application related specifically to the respondent’s alleged actions/inactions in providing care to Ms. Bruce’s daughter. Reports into the systemic marginalization of IV drug users and other social groups are insufficient to provide the link to the Code necessary in this particular case.

49As a final matter, I note that I have carefully reviewed the caselaw submitted by Ms. Bruce and do not find that it affects any of the conclusions set out above. Some of the cases have no apparent relevance to the issues before me. Other cases filed by the Ms. Bruce concern the issue of delay that I do not need to address in light of my conclusions above. The remaining cases involve claims of medical negligence against health professionals who failed to diagnose certain medical conditions. As noted above, unlike claims of medical negligence, in order to make out a claim of discrimination under the Code, an applicant must establish a link to one of the grounds protected under the Code. Therefore, these cases are not relevant to the issue before me.

50For all the reasons set out above, I find that there is no reasonable prospect that Ms. Bruce will be in a position to advance sufficient direct or indirect evidence to establish that her daughter’s disability was a factor in any of the respondent’s actions/inactions in this case.

Order

51As noted at the outset of this Decision, I have the greatest of sympathy for Ms. Bruce in the circumstances of this case. However, for the reasons set out above, I find that the Application must be dismissed as having no reasonable prospect of success under the Code. As a result of this finding, it is unnecessary for me to consider whether the Application is untimely or whether it is outside the Tribunal’s jurisdiction because the person on whose behalf it was filed is now deceased.