26 January 2016

The Human Rights Tribunal process is a farce

Having been involved in Ontario’s Human Rights Tribunal process since the summer of 2015, I can now say for certain the Human Rights process  - at least the way it was conducted in my case - is a farce. It may work for some people, of course, but I hasn’t worked for me.

One of the reasons I say this is that, while attempting to get one of the main issues of contention between the Respondent and myself, the Applicant, resolved, I can see how the process has worked in his favour. And if the process itself hasn’t, while running its natural course, then the people working in it have enabled it to benefit him.


The Application I made to the HRT was to declare that the Respondent – my family doctor at the time – had discriminated against me on the grounds of sex, marital and family status, and age. I followed the rules and submitted 5 ‘important documents’ and one audio recording that I would be using at the hearing, as well as providing a list of them, stating the importance of each, as required in that section of the form. As the Applicant, I also had to provide a thorough description of the two incidents of discrimination and how they affected me, and what remedies I was seeking, which did not include a monetary remedy only ones directed to the Respondent himself and recommendations within society. See Remedies sought from the HRT.

Then it was up to the Respondent to write an official Response, using an HRT form for that, which he did in July, 2015. On it he wrote the name of only one document – The Medical Chart of McMcPherson – giving the reason it was important as “describes the care provided to Ms McPherson.”  It was at about this time that I inquired from the Legal Support Centre what was menat by the term ‘Document.’ I got no answer on that.

This was the first of the three times in all that the Respondent and the Applicant (myself) were required to declare what documents we were bringing to the hearing – or relying on, or might be using.

I did respond the Respondent’s official response, but the Form 3 I used said only respond to new issues, so that matter of the one bundle of documents – being my Medical Chart – remained unaddressed.


The second time we were required to declare the documents  - in a formal Disclosure of “Arguably relevant Documents” - was by September 1, 2015, which I did, submitting my by then 7 documents plus 2 audio recordings by the deadline, but receiving nothing in return from the Respondent.

I contacted the Respondent and the HRT via an official form and was hastily sent the bundle of items previously mentioned by the Respondent – the Medical Chart. There were no dates on them, not in chronological order, no description of each page or their importance, nor their relevance, as was stated to be the new requirement – that they be arguably relevant.

I was concerned about the bundle being passed off as a single ‘Document’ but was advised by HRT to wait as a third deadline would soon be approaching, and perhaps all would be resolved by then.


The third and last deadline was Dec 29, 2015, by which time the Applicant and Respondent were to have submitted all the documents they were going to “rely on” at the hearing in February.  By this time the Respondent had put numbers and titles on each of the items in the 103-page Medical Chart. But nowhere was the importance of the ‘Document’ or it relevance included, except meant to be as a “description of the care provided to Ms McPherson.”

I objected strenuously. And the Respondent’s lawyer objected in return, and in two Interim Decisions and one Case Direction, decisionmakers at the HRT sided with the doctor – the Respondent.  I get to use my 7 pages, and he gets to use 103 – if he needs to.

If I need to defend myself against anything that is raised by the documents he produces in self-defence, I don’t have anything. We both submitted documents starting in April, his in July, 2015, me providing insight as to why mine were important, the doctor providing nothing, except to say they described the care provided to me.

Negotiations and arguments

Forms 10 and 11 abounded then, between the Respondent’s lawyer and myself and the HRT, as we attempted to persuade the Interim Decisionmakers, Laurie Letheren and Dawn Kershaw, of the merits of our requests – me for adjournment to allow the Respondent time to provide the relevance of each of the 103 pages, his lawyer to plead that he had the right to a speedy hearing.

As time went on, his lawyer made the argument once again that I had placed the care provided to me at the centre of this matter, while I argued that no, like Evan Solomon, Mike Duffy, Jian Ghomeshi and Joe Fontana, when accusations are made against them it isn’t the good they have done that is at the heart of the matter. It is when mistakes are made, or discrimination carried out, that it ends up at a Tribunal and these are the matters to be looked at, not the good these people did. The lawyer’s Form 11 saying what she did, there, was ignored by the Interim Decisionmaker, Dawn Kershaw, in her Jan 15, 2016 Interim Decision, as were my remarks about what this case should be about.

Each time, the Interim Decisionmakers argued that this matter of the adjournment and the relevance of the items in the Medical Chart should be left to be decided at the hearing.  And then I realized that this was not going to happen. It couldn’t happen. It was an illogical decision the Interim Decisionmakers had been making every time they said it.

It would take time, if the Respondent were ordered to write down the relevance or importance of each of the items in the 103-page Medical Chart. There’s not a hope that could happen at the hearing, while we are all sitting there. It would seem that they  - the HRT Registrar, Richard Hennessy, or the adjudicator, Dawn Kershaw - had no intention of deciding in my favour, that the doctor would have to provide the relevance of each of the documents.

What that means, in terms of the hearing, is that if I produce a document or an example of ill-treatment or disrespect he wishes to dispute, he can produce a document from the 103 pages to prove his argument. However, having only 7 documents and 2 audio recordings, I am limited in how I can make a point or defend myself against his accusations. I can speak, but I have not been granted credibility. So it is the harsh words and distortions in documents written by the Doctor and his receptionist that will be believed.

What’s worse is that, during this whole process, I was led to believe that the process would be fair, yet I was not given the option of seeking documents to contradict the 103 pages he decided to rely on.  In fact, how could I? How could I begin to guess what he was going to produce, at the hearing, from his array of documents that he first mentioned back in July?

Three times the doctor produced that Medical Chart as his Document of importance, relevance, to rely on. And each time he not obliged to prove that the items in it were.

Discontinuity between the lead-up and the hearing

Late in the process it also sinks in that everything that happens during the initial process has nothing to do with the hearing. All that happens during these months of preparation, the HRT sending directions as to what should be submitted and when, and how they should be described, is forgotten once the hearing starts. What that means is that all the talk, all the arguments, all the lack of description regarding importance, relevance of the pages, etc. in the Medical Chart mean nothing once the hearing starts. It means that I can request that the doctor provide the relevance, right there, at the hearing, but that the adjudicator, Dawn Kershaw, can simply say No. Or, she can say, This should have been dealt with before the hearing started. There is no time now.

All those submissions I made, beforehand, about my position, mean nothing, unless they are included in the documents I submitted to the HRT to be used at the hearing. That means that the medical research I provided links to on why older women who have had given birth and have had hysterectomies ought not and do not need to be sent off for an ultrasound on their bladders will not be there as evidence. Only my word will count, though the colleague witness of the doctor has said in writing that the treatment I received – including the pelvic ultrasound on my bladder, was within the standard of care limits. What that means to me is that I would not want him as my doctor. And secondly, that giving the patient the chance to ask questions beforehand and to find out what would be expected from her doesn’t matter to either of them. As for the request by the doctor for a urine sample from me to test for “street drugs,” it is still my view that he needs to take a course or two on how to communicate in respectful ways. See details of the incidents of discrimination:
Statement on Pelvic Renal ultrasound incident 
Statement on drugs, urine termination incident 

Just as importantly, the doctor needs to consider the differences between  women who are young and those who are growing older, and how that may affect their diagnosis and treatment in matters such as kidney disease.

What is the purpose of such a lengthy process of requests for documents from the Applicant and the Respondent?  Is it to wear out the Applicant through repeated failed attempts to achieve fairness at the hearing?  See SJTO and HRT Rules of Procedure p 2

p 2 of the Rules


A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:
(a) promote the fair, just and expeditious resolution of disputes,

(b) allow parties to participate effectively in the process, whether or not they have a representative,

(c) ensure that procedures, orders and directions are proportionate to the importance and complexity of the issues in the proceeding.

1 January 2016

Proving discrimination at a Human Rights Tribunal

Added Monday, January 25, 2016    The aim of this HRT Application
Added Sunday, January 17, 2016 - Further Response to Anonymous commenter
Short edit made Jan 3, 2016

What counts more – credibility of witnesses or factual evidence? Stated another way, should interpretations and viewpoints of witnesses close to the event or to participants in it be granted the same evidentiary legitimacy as substantive proof in the form of reliable, objective, detailed research or tape recordings of the incidents in question?

When I made out an Application to the Human Rights Tribunal in 2015 claiming discrimination by my family doctor on the grounds of sex (gender), marital and family status, and age, I did so in the belief that my complaint would be taken seriously. I have come to see now that, rather than my evidence and knowledge forming the basis of my claim, the lies and distortions of truth told by the Respondent, his secretary, and a colleague not long departed from the Port Elgin/ Southampton area are being held up as truth (by them and decision-makers at the HRTO), despite my having provided evidence in the form of tape recordings and factual research that indicates otherwise.

I know that my words mean little or nothing to most people. And that is the underlying factor in this case. I have no husband to provide me with credibility. I have no property  to enable me to be seen as a worthy person. I have no family nearby. I live alone, in a city that I once thought was a great city to live in – London, Ontario – but now having returned after years away – including a decade abroad – after 5 years here it no longer seems that great to me.

Interim Decision

Of significance here is the Interim Decision of October 8, 2015, which relieves the Respondent of the responsibility of having to provide the relevance/importance of each document within the Medical Chart, even though in their initial Response, it was a requirement that they do so, “they” being the Respondent and his lawyer. Their claim at the time (in their Response to my Application) was that my entire Medical Chart were documents intended to show the care provided to me, never mind that it is full of omissions, pages put together haphazardly, indecipherable scribblings by the doctor,  not in chronological order, nor with dates on the pages – and no explanations of the relevance of each individual document. According to the Interim Decision, my requesting more detail was “premature”.  And so now, according to the Notice of Hearing, Aug 11, 2015, when from that bundle the ones to be relied upon at the hearing were to be listed, by the end of December, 2015, the Respondent went directly to the new instruction, listing them, giving them titles, and numbers, but still neglecting to explain their relevance.

View the HRT Interim decision, October 8, 2015

The pages of the Medical Chart (my medical chart) now have titles, but are out of order and not dated. More importantly, no mention of the relevance of these so-called documents that I received from the Respondent at the end of December, 2015 is included. It would appear that, through the manipulation of language, and the lack of familiarity of the Interim decision maker with my Application, the Respondent has managed to avoid having to provide the information originally required in his Response to my Application. Submitted as a whole, the chart may give the overall impression that the doctor was a caring doctor, but delve more deeply, and it would show he was not. But who has time to delve more deeply. The Human Right hearing lasts 2 days. Am I to spend that time defend myself by pointing out all the mistakes and lack of attention to detail in the Chart, including all that is irrelevant, nothing to do with this Application, but which may make me look bad in the eyes of the Human Rights adjudicator. Without an explanation as to their relevance, the documents are left to the adjudicator’s imagination to comprehend.

In my Application I focused on two matters only, ones I had proof for. Now, that has been turned around by the latest submission to me and the HRT by the Respondent, on Dec 29, 2015, which is the now titled and numbered Medical Chart, plus a statement by his secretary upholding his opinion, a secretary whose name I didn’t even know until I received the statement, as she never referred to herself by her name when she called, and the doctor did not either. The other witness statement is a so-called expert statement by a new colleague of the doctor’s, who did not reside or practice in London at the time but who seemingly is providing his objective views on the treatment provided to me, stating that it was appropriate.

In particular, I should think that sending a patient for renal ultrasound test, to rule out causes of kidney disease, and including an ultrasound on the bladder, was simply not well thought out – typical of this doctor’s attitude towards me – thoughtless, uncaring, and disrespectful. The witness colleague, a family physician also, directs readers to ‘Mosby's Family Practice Sourcebook - An Evidence-Based Approach to Care,’ for evidence (which they must seek out on their own, apparently, from within the book’s pages) that sending me for a bladder ultrasound - a 69-year women who has given birth 2 times, had a hysterectomy and is somewhat overweight - is within practice guidelines for a patient whose lab report shows “an initial abnormal creatinine clearance (eGFR)”.  The witness colleague writes:

“While an ultrasound limited to just the kidneys would have been appropriate, it was stili within the standard of care to include the bladder to rule out other possible causes of chronic kidney disease” (Dec 27, 2015 physician witness statement).

The Two Incidents of Discrimination

See here for a more complete and coherent description and analysis of the ‘pelvic/renal ultrasound incident,’ taken from my original Application but rearranged in a more comprehensible format. I would simply state here that for a woman my age, with my reproductive history, and weight, sending me for an ultrasound test on my bladder was not only unnecessary, it was risky, and uncomfortable, and demonstrated a lack of knowledge of older women’s chronic health issues. His colleague also seems not to want to go into detail on the matter at hand in any serious way.

The witness secretary decided to interpret my manner during the second incident – see the ‘urine sample and “street drugs” incident and analysis’ - as rude, although I did submit to the HRT a while back a longer audio recording of the incident after the doctor himself accused me of shouting at his staff, for the benefit of the staff’s perhaps short memories. Originally, I submitted only the recording of what took place in the treatment room, during my appointment, but I decided to send in the rest of it, which included my taking the container for a urine sample to the washroom (after obtaining a key from the pharmacy), then changing my mind, returning the unlabeled jar to the secretary, leaving, then returning to ask for a form that I could take to the lab to have the urine test done there. By that time I had lost all faith in my doctor. The staff ignored my request, and so I left, going to a walk-in clinic and requesting that I be allowed to provide a sample of urine to test. I did so, but on inquiring time after time I was eventually told that the sample I gave to them had been lost.

Read 8-page transcript of the 21-23 minute recording. The section related to the Tylenol 2 and “street drugs” urine sample request begins on page 5.

Click to hear longer 21-23 minute audio recording of ‘urine sample and “street drugs” incident’.    I have been unable to make a better quality mp3 from the original tape recording due to not having the proper equipment. Instead, I used technology available at a small cost online, but with limited capability. I have not asked for any damages from the HRT, thus would not receive any financial advantage even if my Application were successful. That’s not the reason I am doing this, although I  must say I did not realize at the start the financial costs of engaging in this endeavour. I do believe, however, that the recording, lengthy though it is, heard in conjunction with the transcript, provides a better understanding of the emotional content of the incident, and situates it in real time, taking approximately 23 minutes.

Diffusion of Responsibility

This is the phenomenon whereby people are less likely to take responsibility when there are several other people involved. Thus, the in this situation, just to focus on the actual process of the HRTO, the caseworker may make a mistake, or the Legal Support team might, or the Interim decision-maker, or even the translation between the official HRT Rules of Procedure and items of correspondence sent to explain the process to Applicants and Respondents may use words differently, but in effect, open up the process up to misinterpretations and, significantly, to diffusion of responsibility.  When so many people become involved, no one is obliged to take responsibility.  No one will. And so, in the end, who is there on whom to place responsibility?

The diffusion of responsibility within the actual HRT  process is one part of it. Another part is the diffusion of responsibility among the various doctors, secretaries, witnesses, lab workers, fax machines, photocopiers, and other forms of technology through which errors can be made, or Medical Rules and Regulations that state what is permitted and what not, that often leave no one person, such as the physician himself, obliged to take responsibility for errors, lack of knowledge, or lack of awareness of social influences on their own psyches in their interactions with patients.

A third part of the diffusion of responsibility is the fact that the Respondent has four first names, tending to confuse the issue of this doctor’s real identity. The name he uses in his local medical practice is the last name on the list, according to his profile with the CPSO (College of Physicians and Surgeons). Thus, the name he uses usually hasn’t appeared on official notices and documents sent by those involved in this Application, including myself. Instead, it is usually the first or second of the four names that get used. So who is this man, exactly?  Is he the person listed as a CPSO member, who is named on the application, and the same person as the local London doctor, or by using this technique is he able to avoid taking responsibility, not really a part of these proceedings due to the name he is known not appearing in the documents?


I find myself in this dilemma of being up against “credible witnesses” due to the very reason I am making this Application to the HRTO, and that is that, largely due to being female, and older, and not having a  husband, nor being a property-owner, and being alone here without family, I am in a vulnerable position of not having credibility.  I also spent a few years abroad, before returning several years ago to the city where I came to do my undergrad degree after my marriage ended. My name then was Fulham, and I was a student of Sociology in the late 80s and early 90s.  Thus, I am now in this situation of being up against people in the health care professions who are granted credibility to speak and be heard and believed while I am not. I have evidence of a factual nature, objectively-conducted research, and audio tape recordings. But that isn’t really good enough, is it. One needs family, association with a profession or academic institution, or a spouse, or property, or a career present or past, to provide one with the credibility and power to be heard and believed.

I was treated very badly by that doctor who made rude remarks about me to my face, mistreated illnesses, sent me for unnecessary tests, changed my medications for no good reason, would effectively end discussion by informing me that “the report’s back. You’re fine,” or telling me I am smiling thus must be feeling okay, and more. It seems to me that a doctor should be able to treat patients regardless of his personal feelings towards them.  I realize I am one of those who don’t qualify for first-rate treatment, in this country of ours. But to see doctors openly abusing their position as knowledgeable and respected individuals part of a larger group of time-honoured professionals in Canada is regrettable.

Added Sunday, January 17, 2016

Further Response to Anonymous commenter

Yesterday, in a comment on this matter, Anonymous suggested I drop this action. I responded, and now have something else to add to what I said there, see below, in comments.  On occasion we hear of accusations made against someone, and even of charges laid, followed by the retraction of the charges, or the accuser walking away from it, for whatever reason.  When this happens, as does sometimes in cases involving sexual assault or sexual harassment, comments made by some readers in the comments section of the online newspaper then claim that the accuser realized she was mistaken, or had gotten over being upset over nothing at all, and was actually just another false accuser – another good reason why I should not quit this situation, even though it is getting even worse, as mistakes are made (mistakes?) in the process itself, which go unacknowledged and are not corrected, and the Respondent’s witnesses themselves are telling outlandish lies or giving questionable support to the treatment decisions made by the doctor. The two women who have made Interim Decisions, the latest just on Friday, the 16th of January, are taking shortcuts in their examination of the Forms of the Applicant and Respondent, and even of the Rules of Procedure for the HRTO. Hence, they come up with the Decision they probably want to make, not the one the evidence says they should. The latest decision-maker, Dawn J. Kershaw, is from London, I see after googling her name, so I would suspect that this is an issue of conflict of interests, since me and the doctor in question are also located in London. She made a number of decisions, none of them in my favour, and I had been the one bringing them to her. But the lawyer for the Respondent replied, and perhaps in error but I don’t think so, made me look like a nit-picker, simply for requesting a numbered copy of the 103-page Medical Chart containing my medical records.

She - the Respondent’s lawyer – had missed the deadline for Disclosure of Documents, so ended up mailing me a copy of the 103-page Medical Chart in haste – by regular mail -  in no apparent order, not numbered, no explanation of the importance of each item, or its relevance to the acts of discrimination I had brought. The importance of the documents are required, but by presenting the bundle of documents as a single  ‘document’,  they got away with claiming that it showed the care provided to me, the Applicant.

Even at the time I asked the Legal Support Centre what was meant by the term document, and got only a vague answer. I suspect now it is one of those things that enable trickery to be played out, and by putting off dealing with the matter, as I described in an email earlier on Friday to the HRT, after receiving the Respondent’s From 11, but before the Interim Decision had been made,  the Lawyer, or the HRT itself, can influence the outcome in the direction they prefer, and that is, that the doctor get off and I get blamed for being picky over requesting a numbered copy when according to the Respondent’s lawyer, she had already sent one to me, a claim that the Interim Decision-maker, Londoner Dawn Kershaw, took as truth because, well, she’s a lawyer and doesn’t lie.

If that Medical Chart is allowed to be used in its entirety at the hearing, I needed to know that the copy the HRT received at the end of December was numbered, and was numbered the same as my copy, on which I wrote the numbers myself, from 1 to 103.

The other requests I made were all denied. So my 8 pages and 2 audio recordings are up against his 103 pages, and according to this decisionmaker, as well as the previous one, it’s okay that the doctor doesn’t give the relevance of each of the items. So he can make claims on the pages which will be taken as truth simply because he is a doctor.

I was denied more time to prepare for the hearing. And my request to have the hearing taped was denied, though I am permitted to tape it myself as along as I transcribe it afterwards and provide copies to the Respondent and the HRT. But even if I do that, the audio tapes of the hearing are not to be made public, Kershaw says.

This is not a good situation. No wonder some women who try to get justice give up and walk away. And it’s not only men who give them a hard time during such proceedings. It’s women, too.

Added Monday, January 25, 2016     

The aim of this HRT Application

Within the last few days something has become clear to me. My efforts over the last months had been focused on having the doctor take responsibility for explaining why he thought each of the items (most consisting of one or two pages) of the 103 page ‘Medical Chart of Ms McPherson’ were important or relevant to the hearing, and to have the hearing delayed until that matter could be resolved. Only recently have I realized that the refusal of the Interim Decision makers, Laurie Letheren and Dawn J Kershaw from the Human Rights Tribunal, to deal with the matter effectively and fairly, instead, informing me each time that I have to raise these matters at the hearing, was not only avoiding the issue and another example of ‘diffusion of responsibility,’ but a senseless decision – not even making sense.

These are the options the adjudicator will have, if these Interim Decisions and Case Direction are raised at the hearing. She can say, No, there is no good reason why the doctor should have to defend his view that the entire Medical Chart should be allowed, since he has already given his reason, that it describes the care provided to the Applicant.  And then it will be up to me to prove otherwise, I suppose – if I get the chance - although by now I have only 8 pages of documents and my word is worth nothing in the eyes of the HRT. And by having to do that, it takes time away from the reason for having the hearing in the first place – the Doctor’s discriminatory practices and attitudes towards me.

On the other hand, the adjudicator might agree that the doctor should explain the relevance or importance of the documents he is relying on – in the 103-page Medical Chart. But how? Would he be required to do so right then, in the Chamber of Commerce room where the hearing is to be held, while the rest of us wait? Or would the adjudicator simply announce that this Decision should have been made beforehand and refuse to deal with it. The Medical Chart would stay, and it would have been seen by the adjudicator, and he could pull any pages from it he wanted to – words written by him, or his receptionist, making negative comments about me that I would then feel obliged to refute, making the hearing more about me than him. Those are three possibilities, but in truth we have no idea what the adjudicator will say or do.

In her Case Direction of January 22, 2016, Ms Kershaw wrote that she thought I was “unhappy” with her “failure to address” another Interim Decisionmaker’s decision (Letheren), but it was not her role to do so, she said.  In fact - and I did express this thought - it is her ability not to look beyond the earlier Decision, instead, making the same decision, reinforcing the earlier error not to adjourn the hearing to deal with the relevance issue that was the problem, as well as not examining the relevance of the Medical Chart nor have the doctor do so well before the hearing.  

I had put it this way, in an email on January 21 to the HR caseworker and the Respondent’s lawyer, about Kershaw’s Interim Decision of January 15, saying, in part, 

I asked that the decision-maker re-evaluate the material, but Ms Kershaw seems to have left out an inportant docuemtn - a Form 11 by (the lawyer), dated Jan 11. It's hard to know for certain because Ms Kershaw did not give dates to the Forms she was talking about, But it sounds like it. It is that Form 11 that stood between the first Form 10 of mine and what she refers to as my "amended version." Actually, it was not amended, It was a new Form 10 (Jan 12, 2016) made building on what (the lawyer) had written. 

If she doesn't come to understand this now, she certainly won't at the hearing, where there is little time to think. It sounds to me like she already has her mind made up and that this process and hearing is a farce.” (S McPherson, email Jan 21, 2016).

This is an excerpt from Form 10 (Jan 12, 2016) submitted by me in response to the Respondent’s Form 11 (Jan 11, 2016) that Kershaw ignored and that formed the basis of my later email comments about this process and the HRT being a farce.

In response, in her Case Direction of Jan 22, Kershaw referred to the email, saying,   

With respect to the applicant’s comments about my making decisions and her characterization of the hearing and the process as a farce, I would caution the applicant that Rule A7.1 of the tribunal’s Rules of Procedure states:

All persons participating in  proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceedings.” (HRT Rules of Procedure, Kershaw, January 22, 2016, Case Direction, 2015-20652-I).

I have laid a complaint against Dawn Kershaw with the SJTO (Social Justice Tribunal of Ontario), which means, I understand, that my concerns will go right back to the Human Rights Tribunal for them to deal with as they please. As I said most recently, the Human Rights Tribunal is a farce. Perhaps it works for some people, but not for this particular case of discrimination. See details of the incidents of discrimination:
Statement on "street drugs", urine sample and termination
Statement on pelvic renal ultrasound incident

One thing they  - the lawyer for the Respondent and the HRT caseworkers and Interim decisionmakers -  have been successful at is keeping me tied up with fighting this injustice of the Medical Chart and keeping the focus on it instead of the incidents of discrimination I am saying were perpetrated by the doctor. And now, it is Dawn Kershaw who is the problem – the person who will be the adjudicator at the hearing.

20 September 2015

Human Rights Tribunals: privacy and transparency

Added Nov 15, 2015: An Interim Decision was made on October 8, 2015.  See more in the note below, at the end.

The purpose of this is to explain part of the process of the Human Rights Tribunal, using one aspect of my own experience and how that relates to privacy laws in health care, and accountability of physicians and other health care workers, and the accountability and transparency of those organizations meant to resolve problems that occur. The example I am using is of my own Application to the Human Rights Tribunal, April 14, 2015, of discrimination on the grounds of my sex, family and marital status, and age (for more details, see Health care among single, older women – a case of discrimination for OHRT).

On Aug 26, 2015, I made a Disclosure to the lawyer of the Respondent. The Disclosure was required according to the Rules of Procedure, providing him with copies of the documents I would be relying on at the hearing, as “arguably relevant” documents.

I received nothing from the other side by the deadline (September 1, 2015) given by the HRT, in the Rules as being three weeks after they notified us (on August 11) of the dates of the hearing (February 10 & 11, 2016). September 1st  was the date by which both sides were to have sent to the other a list and copies of documents they thought may be relevant to the issues raised in the case.

Backing up for a moment, I must say here that only one item had been listed in the Important Documents section of the Respondent’s Response to my Application (received July 27, 2015).  That one item was my Medical Chart, for all the time I was with the doctor in question, from September 2012 until spring of 2014. I submitted my Form 3 reply to the new points raised in the Response on Aug 12 (having had an extension, due to the original due date, August 7, being less than 2 weeks away from when I received the Response) though not responding to the idea of having his entire Medical Chart about me being available for him to pick and choose from at the hearing, or for it to possibly influence the adjudicator. Since no items – appointment dates, specialist reports, etc – were listed, I had no idea whether what was included was a complete set, or whether what would be sent to me, finally, was complete. And at the same time, more or less, received the notice from the HRT about the dates of the hearing, requiring me to then send a Disclosure to the Respondent by Sept 1, which I did, as noted in the previous paragraph.

But now, having not received a Disclosure of arguably relevant documents from the Respondent by September 1, and not agreeing anyway with the idea of my privacy into my medical records being made available in that manner, I discovered that I could complete a request for an Order on a Form 10 and submit it to the HRT, using the Production of Documents part to request a copy of the document - my Medical Chart. To me, the chart wasn’t “arguably relevant,” at least not in its entirety, but I decided to submit Form 10 anyway, requesting that the Dr itemize the Medical Chart and send only those items he was planning on using at the hearing in February. Also, I requested under ‘Other’ that for privacy reasons, the entire chart not be produced at the hearing, thus, not sent to the HRT’s adjudicator (see excerpt from PHIPA, Personal Health Information Protection Act, 2004). Formally, these were the requests I made in writing, and sent to the lawyer for the Respondent and to the HRT:

Request for an Order for the Production of Documents
I am requesting, first, with conditions, that the Respondent, the Dr, produce relevant sections of the document he named in his Response (July, 2015).  I also request that he particularize those sections of the Medical Chart that he plans to use at the hearing.  

Other Request: that the Medical Chart of Ms McPherson not be used in its entirety
I am requesting that the Respondent not rely on the Medical Chart of Ms McPherson in its entirety, for this Application at the hearing, as that would be an invasion of privacy under the law, such as under PHIPA, the Personal Health Information Protection Act, 2004. I request that he selects only those items he plans to use, explains why each is important, and provides a copy of them for the Applicant. (Question 3, Form 10, September 9, 2015)

I wrote out a detailed explanation of my reasons for making these requests in Form 10, Question 4, and sent a copy of the Form 10 to both the Respondent’s lawyer and to the Human Rights Tribunal Registrar/caseworker.

About two weeks later (September 17th) I received a copy of the Medical Chart from the lawyer, obviously not itemized as there was no list, and no explanation of why the Respondent thought each entry in it was important, or arguably relevant, or whether it was complete at all, and of course, reaching me well after the due date for a Disclosure.

This wasn’t what I had hoped for. After all that explaining, the lawyer had simply sent off what appeared to be an unsorted file of my medical records, not particularized, and with no acknowledgement in the cover letter that I had sent to her a completed Form 10 with pages of info and explanations. There was a brief email discussion between the lawyer and myself, which also went to the caseworker.  But in the end, the caseworker said that the Form 10 Orders would go to a ‘decision maker’ to resolve.  Already, I can picture another person getting involved in this situation who knows nothing about the Application, and would have to start from scratch reading up on it, and being pressured to make a fair decision on whether my Medical Chart should be allowed to be taken into consideration and whether it needs to be particularized.  What’s more, the lawyer now has the opportunity to respond to my Form 10 request before the decision maker considers it, and the decision maker gets to see what she says about it, including the fact that she has sent me a copy of the Medical Chart already, by that point.

One might ask, at this point, why did the lawyer quickly send me a copy of the Medical Chart, when it was overdue by practically two weeks, and when it was not what I asked for?

I feel that her sending the ‘document’ to me – the Medical Chart – altered the dynamics of the situation, whereby a ‘decision maker’ might just as easily say, Well, it’s been sent to the Applicant now, so leave it at that. And the Applicant did make out a Form 10 request for Production of Documents . . . . .

The Rules of Procedure say the Respondent must send their ‘arguably relevant’ documents by a certain date, but don’t say what happens if they are not sent by that date, except that I can request them if I choose to, through submitting a Form 10, in this case for Production of Documents.

I don’t want this to end up being a matter later interpreted by the Respondent as me being the one to request the Medical Chart. Details are so easy to skim over, and if the fact is that I submitted a Form 10 for the Production of Documents, which I did, the assumption could well be that I considered them ‘arguably relevant’.

This Application to the Human Rights Tribunal is supposed to be about the actions and behaviour of the Respondent, not about me having to defend myself against false accusations and distortions of the truth made by the Respondent and his colleagues in documents in my Medical Chart. My response to Question 4 of the Form 10 goes into more detail about the idea of truth, and who gets to be believed in this world and who doesn’t. It also brings in the matter of the longer transcript of the April 28, 2014 office appointment, and the accusations made against me by the Respondent in his Response to my Application, that I shouted at his staff after the appointment ended.

I have presented in my Application only 2 examples of discrimination, both of which I believe I have the evidence to uphold. I could write at length, too, about the behaviours of the Respondent, but I have no proof of much of it. But when the Dr says something, and writes it down, it seeme from what I have seen elsewhere that it is taken as truth.

I might not have known about Form 10 and the right to request a production of documents and the right to request privacy of medical information, had not the Respondent failed to make a Disclosure of the ‘document’ named in the Response – the Medical Chart.  I have no access to a lawyer who can foresee such issues arising and be able to advise me. Of course, the other side of that is that no mention of the reason for the importance of the Medical Chart was mentioned in the Response, and its relevance might have been difficult to explain. I have never said the doctor did not provide some good health care towards me. If he hadn’t done something worthwhile, it wouldn’t have taken me so long to acknowledge the unprofessionalism and poor judgement in his treatment of me, and he would have been seen, at least by me, as not worthy of being a physician. Rarely is someone totally one or the other – all bad or all good.

A physician is someone who is subject to certain standards in his profession. Too many errors of judgement, incidents of rudeness, trivializing the patient’s concerns, and judging me on the basis of my sex, and family and marital status, and age is what can lead to the realization that he is discriminating against me. Saying, “The report is back. You’re fine,” isn’t serious on its own, but amongst so many other incidents, it becomes relevant, an indication that he doesn’t care, and isn’t doing his job.  When I go to him about ankle pain, or a swollen knee, and the first question he asks is How does that affect your driving,” one has to wonder. And when medications I have been taking for a number of years are questioned, and changed, for no good reason or without informing me when I go to him to have prescriptions renewed, it made me wonder. And why was I treated like a walk-in patient, having to have my prescriptions renewed by hand, with the risk of mistakes being made, and being denied having access to Tylenol 2 with codeine, 2 per day, as though that was a large amount and I might abuse the privilege of having relief from pain. Read in my blog, Health care among single, older women – a case of discrimination for OHRT, for details about that and the unnecessary pelvic renal ultrasound he sent me for. He wasn’t behaving like a family doctor should.

The HRT caseworker had assured me a while back that if the due date were approaching and I hadn’t sent a required document, that he would request it. That was in response to my requesting confirmation when he received documents I sent to him. But he didn’t request from the Respondent the ‘important document’ named by the Respondent in his Response, which surely must have been intended to be sent as an ‘arguably relevant’ document to me as a Disclosure. The caseworker accepted my Form 23, declaring I had sent my own Disclosure to the Respondent, but it didn't jog his memory to ask the Respondent for his list of arguably relevant documents in a Disclosure. And my sending my Disclosure to the Respondent didn’t lead him – or her, the lawyer – to send their own Disclosure to me.

For me to do the requesting of my Medical Chart, through a Form 10, resulting in a conglomeration of largely unexplained and unidentified items quickly being sent to me (although more than two weeks overdue, not the ‘documents’ I asked for, and not mentioning they were in response to my Form 10), would have made it appear that it was me who believed they were ‘arguably relevant,’ unless the decision maker took more time to read what I wrote than the lawyer did. It is possible the lawyer was attempting to cover up a mistake, and was hoping the ‘decision maker’ would overlook it and accept her sending of the documents, though past the deadline, without examining closely what I wrote in Question 4 of Form 10.  But the lawyer wouldn’t have realized her error of omission had I not pointed it out when I sent her the Form 10. And then what?

It’s too easy for the Human Rights Tribunal to take short cuts, to not be transparent in its process, and to simply make important decisions without the Applicant knowing what’s going on, for instance, who the decision maker is in terms of position if not by name, and his expertise, especially in the area of privacy in health care. This situation has now been left in the hands of the Respondent’s lawyer, who gets to write a response to my Form 10, and the decision maker for the HRT, who makes a judgement on the Form 10 I submitted. He could have her send a list of itemized documents from the Medical Chart, and agree with me that the privacy of my medical records is important, or he could just say, Well she has sent it now, so that’s good enough. And then she will send a copy to the HRT in December, the relevance of which the Respondent will not be obliged to explain, even if it gives a false impression of me, while falsely presenting him in a better light.

Note: Added Nov 15, 2015: 

An Interim Decision was made on October 8, 2015, granting the Respondent and lawyer their requests, regarding their Disclosure – my medical chart.  It was declared by Laurie Letheren, an adjudicator with the HRT, that my requests were premature. The material was delivered to me, although not organized properly, some of it not relevant and none of it argued to be relevant, and not itemized, no reason stated for its importance other than it demonstrated the care I received from the doctor, and it was sent a little late. But at least I got them, I think she was saying. 

If the Respondent decides to particularize the documents, s/he may do so when required to send the documents to the Tribunal (deadline December 29th) in preparation for the hearing early in February. But again, s/he may not. There has been no warning given by the adjudicator to the lawyer to itemize the documents. It’s just a collection of undecipherable documents, much of it, with no explanation of why each page of the seemingly random collection is relevant. At least, that much should have been done. Then, by the end of December, s/he would be able to decide, presumably, which documents she is going to use at the hearing. 

Also added to List of Resources, on Nov 15, ‘Health-care system in need of more transparency, report says’ (The Star, Nov 12, 2015).


Health care among single, older women – a case of discrimination for OHRT
April 12, 2015

Health-care system in need of more transparency, report says [added Nov 15, 2015]
C.D. Howe Institute says there should be more public reporting on patient experience within Canada’s health-care system.
By Theresa Boyle, Health
The Star
Nov 12, 2015

New health legislation will improve transparency
By Olivia Carville, Staff Reporter
The Star
Sept 19 2015

Personal Health Information Protection Act (PHIPA), 2004, S.O. 2004, c. 3
Government of Ontario
retr Sept 17, 2015
see excerpt here: http://suemcpherson.blogspot.ca/p/personal-health-information-protection.html

13 September 2015

CPSO: transparency in the complaint process

Update, Sept 22, 2015   

As of Sept 22, 2015, still no response from the CPSO.  For further details see end of this entry for Sept 13, 2015.

In June, 2014, I submitted a complaint with the College of Physicians and Surgeons (CPSO) against my family doctor, who had acted unprofessionally, disrespectfully, and administratively insensitively towards me. At this point, September, 2015, I am waiting for the Inquiries, Complaints and Reports Committee to determine whether they think I have a case worth taking any further. Their decision will be based, in part, on what they receive from the Investigator assigned to my case. In the following look at correspondence and methods of seeking the truth of the matter, I will use the situation of the ENT specialist and my ongoing ear problems as an example of the lack of transparency in the process of the CPSO complaints system, and their inadequate methods of seeking answers. The ear/ENT problem is only one of many behaviours and decisions I was concerned about, but here I will focus only on this one.

Letters, Reports, etc

Two weeks ago, on August 31, 2015, I wrote the following brief letter to the CPSO Investigator assigned to deal with matters to do with the complaint I had brought against my family doctor over a year earlier, in June, 2014. There was nothing left to say, I assumed, and this would be going to a committee who would determine whether my complaint was worth looking into further. My concern now is whether the Investigator herself was biased in her approach to the summary, documents and other evidence she was preparing for the Inquiry Committee for the College of Physicians and Surgeons.

Dear [CPSO Investigator],

Thank you for your letter of Aug 21, 2015 informing me that the committee has met and that I can expect to receive their decision in approximately 4 months. 

I am wondering if I could have a copy of the statement they received about the case from you, and a list of any documents they took into account, also sent to them by you. There is very little transparency in this process, and I need to have more information about what the committee gets to see as I read their decision. 


Sue McPherson (Aug 31, 2015)

I regret now that I did not ask her specifically, had she received my July 14 response to her previous letter of June 26, 2015. That was my last chance to tell my side of the story and to respond to claims made by my family doctor. She neglected to acknowledge receiving that letter. I will reproduce part of that letter here, just the part that applies to this matter of the ENT specialist and my family doctor/gp’s handling of that situation of my ear problems.

I have not yet received a response to my letter of August 31, 2015.

Backing up in time, to February, 2015, I noted that I had asked the same question, about what the committee got to see and base their decision on. I wrote,

“How much information am I able to have on this procedure, for instance, the report you provide for the Committee or just their final report?” (McPherson, Feb 9, 2015).

The Investigator had responded, less than two weeks later,

“As the investigator in this case, it is not my role to accept, deny, or "uphold" a physician's response, or take one person's word over another. It is my role to gather relevant information, but not to provide my opinion on the information gathered. Nor is it my role to elaborate on, or explain [the doctor's ] response. Consideration of the physician's response rests with the Inquiries Complaints and Reports Committee (ICRC), and I do not participate in their discussion or decision-making. Please note that the ICRC is a screening committee; not an adjudicative body that assesses credibility or makes findings of fact” (Investigator, CPSO, Feb 18, 2015).

Skipping a couple of months of letters back and forth, the Investigator wrote on April 13, 2015, documenting in a list the reports, letters and responses she felt were important for the committee to see, saying,

I am now in the process of preparing the information received for review by the Inquiries Complaints and Reports Committee (ICRC); it will be a review of the documentation gathered and audiotapes, and neither the physician nor the complainant attend” (Investigator, CPSO, Apr 13, 2015).

Despite having claimed earlier that she was objective in her role as Investigator, she wrote, regarding the particular report from the ENT specialist,

“For your interest,  I have learned during the course of this investigation that although you saw [the ENT specialist] in August, 2013; it appears that his report was not sent to [your family doctor] until Mar 5, 2013 (Investigator, CPSO, Apr 15, 2015).

I was dismayed at this. She wasn’t saying that the ENT specialist “claimed” or “explained” that the report did not go out in good time, but says instead in her letter that “it appears that” it was not sent until 7 months after the appointment, implying that was what the situation was.  One of the issues I had, that I referred to before, was that I was never permitted to see the report sent by that specialist, when I asked my gp what the report had said, though he did say he had it there, just not for my eyes to view.

I wrote a response on April 26, 2105 (see excerpt here) to the investigator, but have no idea if that letter got included in the documents sent to the Committee (ICRC), as the list of documents she sent to me was in the letter dated April 13.

Over time, I have expressed many thoughts on the bad treatment I received at the hands of my family doctor, and in this letter, I tried to make clearer what happened in that entire incident of the “ear” problem with the ENT specialist. While the investigator relies on documents and so-called facts, my approach, however, is to look at the circumstances of the incident itself - circumstantial evidence, I believe would bewhat it is called.

The Investigator wrote again on April 30, 2015,

“[The ENT specialist’s] report documented the date Aug 20, 2013, as the date of the appointment. [His] report does not document the date that he wrote the report, however there was only one report written which was faxed to [the family Dr] on March 5, 2014. There is no evidence that [the family Dr] had a report prior to that date” (Investigator, CPSO, April 30, 2015).

This sounds very much as though the investigator is taking the ENT specialist’s word for it - he said he only wrote one report (7 months after the appointment) so that must be way it happened.  What chance do I have at receiving justice if physicians’ words are taken as truth and mine are not?  My family doctor said to me that he had received the report, early on in September or August of 2013, but wouldn’t let hear what was in it. I attempted to find out what the report said on more than one occasion, from my gp, but eventually gave it up as a lost cause.  Now, however, the entire incident has become one more example of the ill-treatment I received at the hands of my gp.

One question I have now is, was my letter of April 26, 2015 (see excerpt) added to the list of documents that I first saw in the letter of April 13, 2015, or was it ignored because it wasn’t an official document or report?  The letter would explain some of the problems over the ENT specialist’s appointment and report - the misunderstandings, the thoughtless choice of ENT specialist in a particular setting which did not apply to me, the two ultrasound reports even though one was redundant, and my family doctor/gp not wanting to allow me to read the report, leading to further confusion in the doctor’s office as I requested another appointment with an ENT specialist, which happened to be for 18 months in the future. Experiencing much pain at the time, I requested that I see an ENT specialist sooner than that, which resulted in another appointment being set up, and confusion overall.

Another question I have is whether the response I wrote on July 14, 2015 (see Ear/ENT excerpt), was added to the list of documents intended for the ICRC, since I received no acknowledgment of it in the Investigator’s letter of August 21, 2015. As I stated in that letter,

“The main problem with the appointment on March 4, 2014 that [my gp] refers to in his letter, in “Audiotape of March 4 Meeting” is not that he raised his voice but that I made it [the appointment] for the purpose of discussing the administration of my ear problem; in fact, I made a point of telling the receptionist that when I made the appointment.  However, at the appointment, as the tape recording indicates, [my gp] immediately moved away from discussing the problems of the 3 ENT referrals to asking once more about my ear and examining it. Strangely, he never once mentioned the non-existent report from [the ENT specialist], even though that ENT appointment had been more than 6 months earlier. At the beginning of that appointment on March 4 I did not mention the report from [the ENT specialist] as on other occasions he had told me it was for his eyes only, saying it was private, not for the patient to read. I had hoped we could move past that” (McPherson, July 14, 2015).

At the end of that office visit about Ear/ENT matters I handed him a letter requesting a copy of the report (see transcript of excerpt of Mar 4, 2014 appointment). And now, there is complete denial on his part, and of the ENT specialist, and of the Investigator, that I asked for the report soon after the original ENT appointment, but did not receive it from my family Dr until very recently, via the Investigator, who seemed to be claiming it was the original – the first and only – report.

Furthermore, my letter expands again on the issues to do with the referral to the ENT specialist and that appointment – see 2nd paragraph from Ear/ENT excerpt from my unacknowledged letter to the CPSO Investigator,  July 14, 2015.

Language - wording of CPSO Complaint Form and in the Investigator’s letters

It’s also regrettable that there was confusion about the wording of the terms on the original CPSO complaint form  - mentioning “other physicians who provided medical care” interpreted by the Investigator to mean “physician witnesses” (not involved in medical care but who had something to add)  whereas I would have been more interested in having “health care witnesses,” such as receptionists and nursing assistants who witnessed or played a part in the incidents themselves.  Left to the CPSO, however, the aim would appear to be (there’s that word again, demonstrating bias) to have only physicians being granted the right to speak, and only physicians the right to be believed, from all appearances.

I have given examples from letters written by the Investigator of how she views the words of a physician more truthful than the words of the patient. I can only hope she didn’t display this attitude in her submission to the Inquiries Complaints and Reports Committee. Lack of transparency isn’t the only problem with the CPSO and the health care system’s ways of dealing with problems, but without transparency -  at the very least sharing with the complainant what the Committee is seeing, what we have is a complaints system in which the Investigator holds the power to influence the Committee if s/he chooses to do so, or even if due to unrecognized biases.


Last year, the subject of transparency within the CPSO was introduced by MPP Steven Clark in a private member’s bill – Bill 29 – in Parliament. His concerns were focused on transparency in notifying the public of complaints, and of the investigation results, rather than about the process itself. And his concern was mainly for the families of people who had lost loved ones unecessarily, through carelessness or negligence.  But those aren’t the only kinds of situations that are harmful to patients and their families. And while I would not agree that a physician’s future has always to be dampened or lost completely by being publicly disgraced, through making errors of administration or judgement, there surely are times when the public should have the right to know more details than they are currently allowed to know. My concern, however, is the lack of transparency in the process of making a complaint and having it addressed.

Having to rely on one person – an Investigator – assigned to a deal with a complaint, is less than ideal. If the CPSO Investigator chooses to withold information from letters written, that are not in the format of a ‘report’ made by a physician, she can do so, leaving the complainant virtually helpless to have their voice heard.

Update, Sept 22, 2015. 

I have not yet received a response from the Investigator of my complaint to my letter of August 31, 2015. Today I wrote to Ms Sandy McCulloch, CPSO Director of Investigations and Resolutions (copy to Ms Katja Lutte, Manager of Investigations and Resolutions), explaining the situation and my concern that my complaint may not have been dealt with fairly. Specifically, I mentioned my last two letters (August 31 and July 14, 2015) to the Investigator assigned to my case, to which I have received no response.

List of resources

Bill 29, Medicine Amendment Act, 2014

Bill would require doctor cautions, complaints to be public
By Marco Chown
The Star
Oct 20 2014

Doctors’ Blame and Shame – Ontario Bill 29
By Shawn Whatley
Oct 25, 2014

See also, list of topics on the right of blog screen, for more on this subject.

29 July 2015

Mediation and the Human Rights Tribunal of Ontario - will it work for everyone?

Following is my email response to a suggestion that I  might like to try mediation to resolve the problem I had with my previous family doctor. See email below mine for copy of that email from the Human Rights Tribunal, received today, July 29, 2015.

In April, 2015, I submitted an application to have the case heard by the tribunal. I had already had a taste of the kind of response I was likely to get from the doctor in question, from having laid a complaint about him with the CPSO (College of Physicians and Surgeons of Ontario). I am concerned that no one is actually looking at the Application I submitted, or taking time to compare that with the Response the doctor sent to that. As with emails sent to the Registrar of the HRT, it is more likely that a customer service rep reads my response and decides what to do with it – file it or toss it, or hand it to someone else to deal with, than it actually gets into the hands of the individual whose name is on it .

----- Original Message -----
From: Sue McPherson
To: Brennenstuhl, Keith (MAG)
Sent: Wednesday, July 29, 2015 4:58 PM
Subject: Fw: Human rights Application ----------  Susan McPherson v. ----------

Dear Mr Brennenstuhl,

Tell me this: how am I supposed to respond to the lies and distortions of truth he tells in his Response, that he isn't required to show evidence for? Am I just supposed to tell my "interpretation" in my Reply? Am I allowed only to add new facts if I can back them up with evidence? What is this - a game of he says, she shows evidence of? And if he says more than what she has evidence of, he wins?

You would have to convince me that anything could possibly be accomplished through mediation in this situation before I would agree to it. So far, the doctor hasn't admitted to any wrongdoing or poor judgement in my attempts to have this resolved, here or elsewhere, so I just don't see how mediation can help.

When I looked it up online, briefly, I saw that mediation was useful in cases where, for instance, a young person had committed a minor crime against a homeowner, and once found guilty, legally, the process of mediation could begin. That, and cases where married couples are divorcing, and I imagine, for the sake of the children, mediation is offered in order to ease the path for future tolerance of their situation, in which due to the children, their paths might well cross occasionally. Neither of those scenarios fit this one. The doctor has not admitted to anything, and in fact is blaming me for behaviour that he has invented, or must be imagining (and wishing to hold me accountable for), such as shouting at him and his staff.

We have no mutual interests that would require our paths to cross again, since my health and well-being is obviously not one of his, and he appears to have no desire to educate himself in matters of ageing, ageism, and discrimination on the grounds of gender and family status, from the looks of things.

I can see how for the doctor to choose mediation would act in his favour, as he can only benefit from presenting himself as willing and cooperative, for starters, and then, not having admitted to any of the things he has done, he has an advantage right from the start. It could only lead to me having to defend myself against accusations he makes (which he has already started to do) for which he doesn't have to present evidence, as he is a doctor, and I am only an older woman living alone without family beside me to grant me credibility.

No, mediation isn't going to work, unless something really changes in a hurry; for instance, the doctor admits to lying about me and being disrespectful, and to distorting incidents that happened and trivializing my concerns, and agrees to attend courses and programs that hopefully would contribute to making him a better doctor to people in similar circumstances as me.

Sue McPherson

----- Original Message -----
From: Brennenstuhl, Keith (MAG)
To: s.a.mcpherson@sympatico.ca
Sent: Tuesday, July 28, 2015 12:05 PM
Subject: Human rights Application ------------- Susan McPherson v. ----------

Ms. McPherson,

In reviewing this file I note from the Response that the respondent has agreed to try mediation to resolve your Application. In your Application, you have not indicated a willingness to try mediation. Mediation is one of the ways the Tribunal tries to resolve disputes and it is highly recommended by the Tribunal. It is a less formal process than a hearing. If mediation does not settle all the issues between the parties, a hearing will take place at a later date. Mediation can only happen if both parties agree to it. Please let me know by return email if you are willing to try mediation. Thank-you.

Keith Brennenstuhl

Human Rights Tribunal of Ontario

16 July 2015

Doctors and the CPSO - women growing older

According to the latest letter I have received from the CPSO, my case is now going under review, to see if they think it is worth taking to the committee or will be dismissed.  I have written many letters to them over the last year, responding to questions and letters from them with details about the doctor  - my family doctor, that I laid the complaint about.

Usually, when patients lay a complaint, it is because something of great magnitude has happened – a loved one has died while in their care, or there has been sexual abuse, or outrageous acts of unprofessional or negligent behaviour. I didn’t see my experience as any of those, at least not until the last official appointment with that family doctor, in April, a year ago.

Before then, I had approached a local organization, the London and District Academy of Medicine, LDAM, to help resolve problems I had had with the doctor in question, who had been my family doctor for about a year and a half. I had thought that, as a doctor opening a new practice, that it was stressful and needed time to adjust to, and so thought his attitude and ways of communicating, as well as organizational methods, etc, would improve over time. However, as time went on, I came to realize he wasn’t improving. In fact, his attitude and ways of conducting his practice were getting worse. Moreover, it was obvious he didn’t want me as a patient, in fact, he asked me to find a new doctor, something I was reluctant to do due to the difficulty in finding one in the first place. Surely, a doctor should be able to do his job, treating patients that come to him, without having personal biases interfere.

Recently, I have come to think that he was treating me as a walk-in patient, not as one of his registered patients. Having to go to his office every three months to have prescriptions renewed, by hand, not on the form, at the risk of errors being made, was just one example of that. Although the pharmacy provided a form that had the items on it to be checked off, he required me come in so he could do it by hand, which itself resulted in the occasional mistake and further consultations with the pharmacy, and another trip to the doctor to sort it out.

There came to be an accumulation of instances by him of unprofessionalism, including lack of attention to the details of making referrals, discussing reports, prescribing medications, demeaning comments, trivializing my health concerns and in general, offering a lack of quality time in assessing what treatment I needed - five minutes or so, but not enough. At the end of the my time with the doctor as his patient, however, I felt I had been subjected to more than what I should have had to put up with, and in a manner that was more than disrespectful. It was an attack on me as a human being - as a woman, an older person, and as a single person living in a separate city from other family members.

It was as though he had no time for me. And sometimes, it seemed as though some things that happened that were harmful to my health and sense of wellbeing were done on purpose. Possibly what happened to me was not any worse than how many long-term Canadian doctors are towards their ageing patients, at least the ones they see as being a burden on the system.

It was a year ago that I laid the complaint against my previous family doctor. CPSO stands for College of Physicians and Surgeons of Ontario. For the most part the CPSO seems to be an organization for the benefit of the doctors, so having one’s complaint dealt with in a serious manner is no easy matter. I wrote on my blog almost a year ago about my first encounter with the ‘investigator’ at CPSO. See ‘CPSO complaints against Ontario doctors’. More recently, not having much faith left that the second assigned CPSO investigator was addressing my concerns objectively, and having come to see what happened in terms of discrimination and not only as bullying, abuse and lack of attention to the administrative aspects of his practice I decided to open a case of discrimination against the doctor with the Human Rights Commission of Ontario. See on my blog, ‘Health care among single, older women – a case of discrimination for OHRT’.

A while back I also founded a discussion list on Yahoo - Ageism in Canada's health care system. Anyone wishing to join would be welcome, to discuss issues of concern, whether for the young-old at home, or in hospital, or the old-old, in long term care homes.

The subject of health care among those growing older is so wide I decided to start with my own experience in this blog piece and see where it leads. Twenty-five years ago I studied ageing while at Western University (was UWO), and wrote several essays and research papers as well as conducting interviews with older people – mainly of close to retirement age, about their experiences and thoughts on the subject. Several of these are on my website – the Diversity in Retirement website.

I started my first website with a research essay about my grandmother, Gertrude McPherson, which also was about aging, actually about the life cycle and how women (she was born in 1882) were able to contribute to society and achieve fulfilment over the course of their lives. And of course, for many, that meant marrying and having children. Along the way she became a missionary (in Hong Kong), an artist and art teacher, was married and raised three daughters, and wrote a book, The Grey Cottage, hence the title of my new photo essay, adapted from the original 2001 edition, Gertrude McPherson and the Grey Cottage.

My interest in aging and life cycle development started while at Western University, where I went many years after graduating from high school in Woodstock, Ontario. Taking courses on sex and gender, and aging and the life cycle in Sociology, while I was going through my own midlife changes put me on the path I would take, researching these areas of study and more. No career came of it, though I started the websites and have continued to do research.

List of resources

Ageism in Canada's health care system
Yahoo discussion group
founded by Sue McPherson
Feb 25, 2015

Baby boomers, longevity, and health care
Sue’s Views on the News
April 9, 2012

CPSO complaints against Ontario doctors
Sue’s Views on the News
July 30, 2014

Diversity in Retirement website
Sue McPherson
since 2004

Gertrude McPherson and the Grey Cottage
photo essay by Sue McPherson
adapted 2015 from 2001 essay

Healthcare: Technology is a bigger cost driver than demography
By Julia Belluz
February 10, 2012

Health care among single, older women – a case of discrimination for OHRT
Sue’s Views on the News
April 12, 2015

12 April 2015

Health care among single, older women – a case of discrimination for OHRT

Added April 23, 2015: transcript of short 6 minute excerpt of audio recording of Dr’s appointment April 28, 2014.

This week, on April 10, I submitted an application to the Human Rights Tribunal of Ontario (OHRT), alleging discrimination by my family doctor on the grounds of sex; family and marital status; and age.  The general area of discrimination I filed it under was ‘Goods, Services and Facilities,’ specifically, ‘Medical/health services’.

I had already tried to resolve the matter, or various aspects of it, through LDAM, the London and District Academy of Medicine, with no success, then filed a complaint with the College of Physicians and Surgeons of Ontario (CPSO), in June, 2014. I have received very little feedback on that, except that it is still in progress, I am told. While the CPSO complaint is directed largely towards a lack of professionalism in general in the behaviour, attitude, and practices of the doctor, the application for the HRT is about specific incidents and situations that reflect discriminatory attitudes as well as practices that discriminate on grounds covered by the Code.

The CPSO form was quite vague in the way it asks for information, and even though I included headings under which I thought the behaviour or attitudes would fall, the first investigator immediately changed it to what she saw as the problem. Having the “investigator” be the one who decides what will be told to the Committee is hardly reassuring. While they may claim to be unbiased, even the fact they claim to be suggests they aren’t. If a person cannot acknowledge normal human frailties, but think they are superhuman in their ability to be objective, how can we have faith in their decisions?  I especially did not like the CPSO’s decision to file my complaint under the heading “Communication and termination” as it seemed to minimize what happened, and to clinically sanitize, as it were, what was really going on – the biases the doctor held and the actual incidents of bullying, harassment, and unprofessional behaviour.

I decided to go forward with the application with the Human Rights Tribunal, based on grounds covered by the Human Rights Code. What this means is that, in this case, I have stated in the application that my HRT complaint is on the grounds of sex (meaning male or female); family and marital status; and age. I have focused on two incidents only (and their ramifications), and gone into greater detail on these two incidents than I did in the original CPSO complaint. One incident was an ultrasound test I was sent for, which not only created much discomfort and risk but seemed to be altogether unnecessary. The other event was an appointment with the doctor which turned into a scenario of outright hostility and the outrageous and uncalled for demand that I submit to a urine test for what he called “street drugs” (see excerpt of transcript of 6 min audio recording of April 28, 2014 appointment).

The human rights tribunal application is a more structured form than the CPSO complaints form, although perhaps it also makes a difference that over this last year my thoughts on this period in my life have become clearer, in terms of their significance, so I am better able to express them, and more concisely.

Below are the headings for my responses to the questions on the two incidents and for their effect on me, and why I believe it was discrimination, for the Human Rights Tribunal. To read, follow the links to the pages. The information is the same as what appears in the application itself, though I have not disclosed the name of the doctor who is the subject of the complaint.

The two events are described in terms of what, who, when and where. Following that is an explanation of the effect it had on me.

1. Pelvic renal ultrasound incident   and Effect on me of Pelvic renal ultrasound incident

2. Urine sample, “street drugs” and termination
    Effect on me of Urine sample, “street drugs” and termination

The last part directly addresses the matter of discrimination, and why I believe I was discriminated against.  For this part, the starting point is the type of discrimination. And the three types of discrimination are 1. sex,  2.family and marital status, and 3. age. For each of these, I explained why I believed I was discriminated against, eg., starting with ‘sex,’ I told how I was discriminated against on the basis of being female. For ‘family and marital status’ my focus was on not having family close by, nor a husband, and how that can affect quality of health care.  And finally, age, the one factor that seems to have everyone concerned about the burden older people are presumably putting on the health care system – or some of us, at least.

These are the three areas I wrote about, on the HRT application, explaining why I believe I was discriminated against:

3. Discrimination on the grounds of sex
    Pelvic renal ultrasound test
    Urine sample, “street drugs,” and termination

4.  Discrimination on the grounds of family and marital status
     Pelvic renal ultrasound incident
     Urine sample, “street drugs,” and termination

5.  Discrimination on the grounds of age
     Pelvic renal ultrasound incident
     Urine sample, “street drugs,” and termination

There were other questions asked on the application form. See links following for my responses:

6. Remedy I am asking for

7. Why the other proceeding (LDAM) could not deal with my complaint

8. Other important information the tribunal should know

9. Practices and policies complained about

In my responses, I have quoted from other sources, though I had virtually no advice on how to go about this HRT process and am not sure I did this the way they wanted me to. I can only hope it will be taken seriously. It certainly was serious for me.  Regardless of what happens, I want it to be known that this is what I experienced. Whether it was a unique kind of situation, or one that others have experienced, I do not know, although I do know that discrimination on the grounds of sex, as well as on the grounds of family and marital status, and age, exists in various ways within the healthcare system.

List of References used in the application form questions on discrimination for the HRTO

Ageism: Concepts and Theories, Law Commission of Ontario, 2009. Retr Jan 20, 2015

Code Definitions (I), Code Protections for Relationships (III), POLICY AND GUIDELINES ON DISCRIMINATION BECAUSE OF FAMILY STATUS, OHRC. March 28,  2007. Retr March 22, 2015.  http://www.ohrc.on.ca

Collaborating with Patients and Others,  Duties: To the Patient. Principles of Practice and Duties of Physicians. CPSO Policies and Publications. Retrieved March 26, 2015.

Defining Discrimination Based on Family Status, OHRC Policies etc on family status. Retr Jan 25, 2015 http://www.ohrc.on.ca/sites/default/files/attachments/Policy_and_guidelines_on_discrimination_because_of_family_status.pdf

Ending the Physician Patient Relationship, CPSO Policies and Publications, Sept 2008.
Retrieved March 26, 2015.

Incontinence: The Canadian Perspective, Cameron Institute, Canadian Continence Foundation, Dec 2014. Retr Mar 25/15.

‘Physicians and the Ontario Human Rights Code’, Policy Number:#5-08.  Policy Category: Practice, Publication Date: December 2008, Introduction. Retrieved Feb 22, 2015.

‘Principles of Practice and Duties of Physicians,’ Policies and Publications, CPSO website. Retr March 24, 2015. http://www.cpso.on.ca/Policies-Publications/The-Practice-Guide-Medical-Professionalism-and-Col/Principles-of-Practice-and-Duties-of-Physicians

30 July 2014

CPSO complaints against Ontario doctors

See additional info added Friday, Aug 8 & Tuesday, Aug 12, 2014; one paragraph revised Aug 18, 2014; minor revisions throughout and update Sept 2, 2014, paragraph added Sept 3, 2014).

Today, in the newspaper - July 30, 2014 - the suggestion was made that complaints about Ontario doctors be made public (see Make all complaints about Ontario doctors public). Trial lawyers aren’t the only ones in favour of this potential exposé of the College of Physicians and Surgeons of Ontario, an organization supposedly meant to protect the province of Ontario’s public and not only its physicians. Commenters on the article in the Star had the opportunity to express their views, if only for a few hours, before the comments section was closed to further comments. Those comments still remain, for anyone interested. It is one aspect of the health machine on which proponents of an improved health system have not yet been able to give their views, in only due to the secrecy involved in dealing with complaints by the public.

As chance would have it, today was also the first call I received from someone from CPSO in response to the complaint I submitted a month ago. I’m not sure, from our brief chat, however, that my complaint is being taken seriously. She started off speaking in such a shrill voice that I thought she must be new to the job, and a bit nervous.  She also spoke too loudly for me to hear her without holding the telephone receiver a few inches away, and even then, her voice was muffled and unclear. Combined with that were various interruptions, from being cut off for a few seconds to scratchy background noises, as indicated in these excerpts from the CPSO's rep's ten minute phone call , combined in one MP3 - 3 minutes long - and playable on various media.  It's difficult to get across how it felt to receive this phone call from this supposed investigator, who seems to be so unprepared and unprofessional (Paragraph revised Aug 18, 2014).

I eventually asked the CPSO contact to call back, after she had sorted out the problem with the new system she said she was using. When I inquired, she said she had been doing this job for 7 years, though it seems to me she was quite disorganized and had not even made herself familiar with the letter of complaint I sent to her.  She didn’t act like a person who was representing the CPSO and dealing with an official complaint. She sounded more like a receptionist - a particular receptionist with the same habit.  I’m not sure what kind of way that is some women have, of speaking three octaves higher than what’s normal. Is it done intentionally, or just a bad habit, I wonder.

The girl from CPSO, said she had dealt with this kind of case before and I asked what kind of case, exactly, and she responded “communication” and “termination.”  To me, the kind of case it was and the kind of treatment I received while under the doctor’s care was more of an abuse problem than one of his inability to communicate well.  And it was not so much that he decided to “terminate” me than the way he did it. Apparently, doctors can get rid of a patient, if they have good reason, and if they contact the CPSO and inform them, and provide reasons. That’s not how it happened in this case. I don’t consider myself a difficult person, and especially under such circumstances where my health depends on the good will of the doctor, I am not going to make life difficult for him. I always think a person deserves the benefit of the doubt.

The girl informed me about the process of an investigation, which involves her collecting information from me, then writing up her own "unbiased" report, and sending it to the committee of doctors and other members of society who would examine the case and rule on it. She said to me that she had sent to the doctor a copy of the letter of complaint that I had submitted to the College but had not yet requested a response from him. Instead, she was calling me and asking me about what was already in the letter of complaint, that she appears not to have read too thoroughly. She wondered what was most important, what I would like to see happen from this, and I could only respond with several important issues, as I saw it, not just one or two.

As far as this girl who called from the CPSO to deal with my case, I have already given her the benefit of the doubt, and there is little doubt left. And that goes for the doctor, too. I had already tried to have this situation resolved through the London & District Academy of Medicine, in a letter presented at their board meeting, with no response at all from them, except to find a new doctor. I presented them in writing with what at first was a minor issue but which soon evolved into something more serious. And yet these issues were not dealt with at all in the written response I received, nor in the telephone conversation I had with the President.

While many readers from the discussion on the article in the newspaper agree that it would be a good idea to make cases public, there can be no agreement how that would happen. If the CPSO is left to make them public, there needs to be a standardized complaints form for the main issues that are the basis of the complaint, or to describe what the problems were. As it is right now, when I attempted to complete the form, I found that the issues I listed as concerns – "manipulative, hostile, and bullying tactics," "rushed decision-making, irrelevant treatments and tests," and "unprofessional, lack of attention to maintaining records" did not match up precisely with the details I wrote about in the letter of complaint. The girl from the CPSO seems to have picked out a couple of items with the intent of focusing on them, apparently, when I speak with her next, after she has sorted out her new telephone system. So instead of seeing the entire time I spent with the doctor as a pattern of abuse, she appears to want to simplify it into a couple of specific problems. The form itself, as it stands, requires a list of behaviours, or areas of concern. She has taken those that I listed and changed them into two areas of concern – or two issues – "communication" and "termination." But that doesn’t cover it. It doesn’t make sense.

To be continued

Added Friday, Aug 8, 2014

I could speak at length about this, as there are so many things about not only the doctor himself but now, the person assigned to look into what happened, not to mention the complaints form itself.

The CPSO girl and myself spoke again the day after, on July 31. Her telephone was still not working as it should, her voice coming across loud and unclear at times. I found it difficult to talk to her and answer her questions as, like the doctor himself, she seemed to be missing the point or unable to understand, or chose to go off on a tangent – or perhaps use information retrospectively, to try to explain something that had not yet happened.

She did ask, at one point, did I still want him as my doctor, an indication that she did not comprehend one main aspect of my complaint, that the doctor quit, and did so suddenly, without a closing-out period to wind up, which is not the way the CPSO directs their physicians to “terminate” (her words) a patient.

Up to that point, when the doctor became exceptionally hostile and mean, I was still thinking that we might be able to work things out. But it is as though one must not bring shortcomings to some doctors’ attention, but simply put up with it, which I did for over a year, in this case.

So, she asked me if I still wanted him as a Dr and I said no.  But the doctor did make accusations against me, in a letter to me. And was I expected to be happy about the idea of this man still being my doctor, after receiving this letter?  What did she think, that I would want to still have him as my doctor, or was she going to use this statement of mine to imply in the formal report that I was going to quit the doctor anyway?

The CPSO girl also asked me whether the doctor had sent the final closing-out letter by registered mail. But that information was also available in the material I had sent to her. Perhaps there was too much to read through, or was she going to try to find a trivial matter to lay on the doctor, as an explanation for my insistence that he did not follow policy.

As it stands, the doctor made accusations against me, and according to CPSO policy, if he does that he is supposed to back them up. Although I did make an attempt to find a new doctor after he sent the letter to me, I did not succeed, and soon decided that I should not be the one to quit, as I did previously with a former doctor who had written nasty, untruthful comments about me in a letter of termination.

Doctors can do this – become unlikeable, thus an encouragement to the patient to leave the practice. I realize because of my research and writings, and somewhat controversial views, that some individuals and groups in society might not appreciate what I have to offer. So if being unkind doesn’t work, the doctor can then resort to harsher methods, such as blaming it on the patient in writing, after which, normally, I imagine, the patient would become only too willing to seek another doctor and try to put the past behind her. I know I did, the first time. And I now I suspect, from a comment made by the President of the London & District Academy of Medicine, that my past did come back to haunt me (via the letter written by the first doctor) and was being used against me in this new scenario with the doctor under complaint.

Thus, despite encouragement by walk-in clinics, where I have had to go for treatment and prescriptions, I have not continued to seek a new doctor. I have had a doctor make false accusations against me. If I let them go, they will stand as truth. So I am obliged to speak out. What’s more, it is entirely possible that the CPSO girl has misunderstood to such an extent that the real issues won’t even get looked into, possibly no farther than his not using registered mail to send his final letter to me.

How it stands at this time, after a second talk on July 31, with the same girl, she is going to contact the doctor and have him respond to some of the issues we have discussed, and I have a feeling they are not going to be the ones I asked about in my letter of complaint.                                                                                              

Update Tuesday August 12, 2014

Today I sent a letter to the Registrar, CPSO, explaining that the person assigned to my case was distorting what I said to her on the phone, ignoring what I had written in my letter of complaint, and generally, appeared to be either completely on the side of the doctor in question or just enjoying her position of power as mediator/troublemaker in this case.  I stated in my letter to the Registrar (dated Aug 11, 2014) that I would like to have someone else take over, that I will not speak with her again; I also requested a copy of the letter she informed me she had sent (the second letter) to the doctor I made the complaint about. But now, to return to the main problem . . .

This is about the doctor and letting him know what I hope to accomplish by making this official complaint. There was no space on the form to state what I hoped would come from it. If the girl had read what I wrote originally, however, she would see that it was implied in the details I gave. I would like to have my reputation restored, that was harmed by his harsh attitude towards me on April 28, 2014, at his office.  I need to have another doctor, and trying to obtain one while having unexplained problems with a previous doctor makes it more difficult. Of course, a patient with chronic medical issues, and with no apparent connection with the community, might be seen as not worth taking on. For these reasons I need to have the doctor take responsibility for his behaviour towards me, which was uncalled for.

So to make it clear, contrary to what the girl has assumed in her letter dated Aug 1, I am not seeking a new doctor. I have not derostered myself in order to be able to take on a new doctor. The doctor has made accusations against me in a letter to me, part of the method of termination of a patient. But he needs to stand by those claims, and not simply allow his claims about me to drop by having me deroster myself.  I did not deserve to be treated the way I was at the end, nor from the start, as it happens. Why the doctor did so, and what other people – other girls in the secretarial pool said to him I don’t know. I just want this done with so I can find a doctor to look after my health concerns as I grow older.

Update Tuesday, Sept 2, 2014

On Aug 29, 2014, I sent a letter to the CPSO - to Sandy McCulloch, the Director, and Associate Registrar, Investigations and Resolutions.

The letter was a followup to the letter I wrote about two weeks ago, on Aug 11, to The Registrar, from whom I never did hear back – though I did get a response to the letter from the girl investigator. I have decided not to post here the letters she  - the girl - has sent me as they would only draw the readers away from the complaint I made, which is probably her intention.

I am trying to get her taken off my case and someone put on it who hopefully would treat my complaint with sensitivity instead of making a joke of it and taking the doctor’s side.

Added Sept 3, 2014)
One main point in all this is that the doctor terminated me as his patient, with no follow up of current medical issues, and made accusations against me in the letter he sent to me. And yet it appears that I am expected to deroster myself formally so that I am able to register with another doctor instead of having to attend walk-in clinics and see whoever is available. But if I deroster myself with the Ministry of Health, then he is off the hook and doesn't have to explain his questionable comments about me. And it is these remarks and accusations by him that I would like the CPSO to investigate so that they can be shown for what they are  - as distortions and untruths (paragraph added Sept 3, 2014).

Reference List

Hospitals and doctors must make openness a top priority: Editorial  (added Aug 8, 2014)
The Star
Jul 29 2014
Make all complaints about Ontario doctors public: trial lawyers
By: Theresa Boyle
The Star, Health
Wed Jul 30 2014

Should cautions issued to health professionals be publicly reported?   (added Aug 8, 2014)
by Jeremy Petch & Mike Tierney
Healthy Debate.ca
Feb 7, 2013