6 February 2018

Presumed Innocence in politics and health care

The last revision of ‘Presumed Innocence’ was on August 1, 2018, to include sections demonstrating the concepts of presumed innocence and credibility through the scandal involving Canadian politician Patrick Brown; through a look at the HRTO case of a patient (myself) versus hospital staff and doctors; through news stories on Prime Minister Trudeau’s 20-year-old scandal; and through news stories on Stormy Daniels’s encounter with Donald Trump. The common theme focused on throughout each of these is the concept of credibility. The legal term ‘presumed innocence’ and the lay person’s use of the phrase are also examined and meant to be a theme by which readers may consider the various scenarios. The List of References has been re-organized into 4 sections according to subject. Minor edits made (2) on August 2. 

Patrick Brown, Canadian politician

Lately, the concepts of “innocent until proven guilty” or “presumed innocent” have been a subject of discussion following accusations of sexual assault against actors, directors, and politicians, among others.  It’s the side of the argument which in layman’s terms probably means “to have compassion for” or “wait for him to be judged in a court of law, first.”

Michael Spratt’s recent article (see The Presumption of Innocence, 2018) explains what the term ‘presumption of innocence’ means, in terms of the legal definition, and the way it is being used inappropriately about one of the most well-known subjects of attention from the public – Patrick Brown, recently resigned leader of the opposition in Ontario.  Michael Spratt is a lawyer, so he knows the law. But I don’t think he knows much about common sense, which is, as I see it, an uninformed opinion in many cases. What I thought I knew 20 years ago, or a year ago, about something that I understood as common sense, is no longer. Many of my views are not the same as other people’s. And theirs are not the same as mine. It could have something to do with diversity – of experience, country of origin, culture, education, interests, family, or career. Or it could have something to do with growing older – a kind of wisdom developing, one would hope. 

I wrote a paper about wisdom once (Narratives and Wisdom, 2004), including interviews with women, in an attempt to find out what it was and if I stood a chance of achieving that state, with no luck. I might just as well have watched ‘Lucy’ (2014) with Scarlett Johansson and Morgan Freeman.

Michael Spratt writes, “Certain columnists wrote that what happened to Brown was wrong and that ‘every man in the world is now vulnerable’." He takes a different point of view, that it makes sense to stop and realize that these men are doing something terribly wrong. He describes the allegations as “shockingly serious: Brown is alleged to have taken advantage of his position of power over very young women, plied them with alcohol and then made inappropriate sexual advances” (The Presumption.)

The presumption of innocence,” he says, “should not be used as an excuse to disregard common sense.” But sometimes, using common sense can be as bad as relying on the common understanding of the presumption of innocence to guide one’s thoughts on a matter. One of the girls reported feeling intimidated because Patrick Brown had not been drinking but she had been. When I was growing up, it was men who had been drinking whose behaviour we needed to feel intimidated by. Now men have to be afraid of women.

Spratt continues, “The complaints were made on a confidential — not anonymous — basis to reputable journalists,” attempting to convince himself of their truthfulness, and of the ability of the journalists to understand. But there cannot only be common sense used where sex is concerned. There has to be some understanding of what the differences are between the sexes. Sexual freedoms, as they are called, are more widespread in society today both here and abroad, from what we hear in the news.  I wonder if men like Patrick Brown recognized the power they held over women, or did they see it as part of the sexual culture in our society today - the supposed freedom of young women to behave as though they were free to make those kinds of choices.  On the other hand, men are no longer permitted to treat women the way they have done in the past, when women’s voices were not being heard and acted upon.

In The Star, another story on Patrick Brown has one of the girls’ explanation:
 “Despite the fact that this happened, I didn’t want to let this impede on what I saw then as a career opportunity,” she said, adding that she’s choosing to speak out now to support women in similar situations.
“I don’t think that any woman young or old should be subjected to that and put in a situation where they have to decide between the career opportunity that’s in front of them and . . . taking themselves out of a situation that’s at best uncomfortable and at worst unsafe” (Two women accuse Patrick Brown2018).

Is she saying that she drank to feel good, or to be able to be flirty unflinchingly, or to not feel the pain of what she was having to do in order to have Patrick Brown advance her career? I cannot see how that provides support to any other young women growing up, except to inform them this is what the world is like.


If she knows that what she is doing is so that it will help her get the career she wants, at what point did she decide to stop what she was doing, ie drinking, flirting, letting Mr Brown get close to her, telling him to stop, getting driven home by him and then later claiming it was sexual assault.  Surely, the problem was that she didn’t want sex as much as he did, that she didn’t even like him. It was all about the career.  And she seemed to know that if she didn’t allow him some gratification, he wouldn’t further her career. Don’t the young women of today even like or admire the men who they do this with?  She called Brown an “old, single politician preying on young girls” (Two women accuse).

That sounds remarkably similar to what Jessica Leeds, the woman on the airplane with Donald Trump, was doing. She left her first class seat beside him to return to her own in tourist class when he went below the waist. That was her cut off point. But was it sexual misconduct, or was it a mutually beneficial interaction that simply ended?

A doctor, his staff, the HRTO, ageism and me

A year ago, I was in a situation where I was accused of being rude, in effect, (or “upset with”) to the staff of a specialist at a local hospital. It would appear that the idea of “presumption of innocence” didn’t need to be applied in that situation. I was deemed guilty by anyone who heard about it. A hastily written very negative black mark against me was put onto the report he wrote of that appointment, which was available to any doctor I wished to have as my family doctor, as well as to other doctors in the community I had appointments with.

I usually describe that part of the situation-in-its-entirety first, because it was so emotionally distressing, and it is the part that comes to mind. And besides, when I filled out the application for a Human Rights Tribunal it said to write the incidents down chronologically, as they happened. So I tried to do that.  It has been a fiasco, with backlogs, being put in a queue, clerical errors, and not having a caseworker, and being sent a ‘Notice of Intention to Dismiss’ (NOID) my application, by some unnamed person, because it might fall outside their jurisdiction.

I realized the other day how my application appears to whoever reads it, as chaotic, done in a chronological order, not even taking the most important incident first, to the extent that, the adjudicator who sent me a Case Assessment Direction (CAD) stated in the heading, McPherson v LHSC instead of McPherson v ‘The Dr et al’.  It seemed as though my case were getting pulled apart, with first one, then another administrative staff member of the HRTO looking at it, and making decisions that were not always the best ones or not explained in a way I could understand. See (Why and How I was discriminated against, 2017).

As chance would have it, in my response to the CAD/NOID, I started writing about it again, but starting with the main incident, which was not about me being accused of being rude. It was about me being shortchanged on a diagnostic test the specialist offered me, and then presumably ordered for me, one that was unlikely to be sufficient to make a firm diagnosis. I made out an application with the HRTO that I was discriminated against, by him, on the grounds of age and gender, and marital and family status.

I don’t think I was able to get the adjudicator see that in the previous response I wrote. I didn’t know what was expected of me, and I was given only clues, no direction that made sense. No wonder it appears to him that I have taken on the entire hospital, seeing my allegations that I was discriminated against by being treated differently than other patients - because they accused me of being rude to the Dr‘s staff – and “upset with.” So the adjudicator worded it McPherson v  LHSC. So who is presumed to be innocent in this case? Well, it’s certainly not me.

I don’t know if starting my latest response with the main incident, instead of the accusations by the girls, is enough to have the next adjudicator or admin staff member realize the situation I am in, that I have been ganged up on, because the Dr knows I know I was getting lesser treatment, as many older people probably are in our medical system. See (Ageism in Ontario's health care, 2017).

What is important, whether the Drs and their secretaries protecting him, or the girls like the ones who accused Patrick Brown, is getting their stories in, and the more of them the better, which makes them more powerful against him, and having the credibility that comes with who they are, now that they have careers, as well as getting their stories in first. If they can accuse him first, and be believed, or if the Dr at the local hospital can accuse me of something so chaotic that it can’t be taken in easily, and if they do it first, then they have the upper hand. They have the credibility, although it sickens me to know that they do, despite all they have done to me.

Those girls accusing Patrick Brown didn’t have to do that. They could have tried to find another way, instead of accusing him of that and destroying his career (Would-be Ontario PC leader, 2015). The girls at the hospital who colluded amongst themselves and with others including the Dr, to accuse me of something I did not do, didn’t have to do that.  Doctors don’t lose their licence to practice that easily. But the answer does not lie with Patient Experience, or Patient Relations, or with the media taking on people who pass their credibility test.  What is needed are people with the knowledge to sort out the problems, not to try to fit my experience into their framework and then dismiss it if it seems to them it doesn’t fit right, and not journalists doing a job they may not be capable of doing.

I find it appalling that the Dr and his staff have been granted credibility, in making accusations against me, that have affected my health and sense of well-being, and that my allegation against him, in regards to this specific incident in particular, has been diminished by having it included as just one of a number of allegations I made against the hospital.  The way the Application form was laid out, the name of the organization comes first in the list of respondents, followed by the list of individual respondents. But not all doctors are employees of the hospital. The specialist I saw was an independent surgeon/specialist, not just another employee who I was alleging had harassed me and discriminated against me.

There have been several mistakes made in the HRTO’s treatment of my application.  I hope that it won’t get dismissed because someone hasn’t been able to take in everything that I wrote about, or expects me to prove my allegations before I get to the hearing. As the closing sentence of Michael Spratt states, “At the end of the day, insisting on proof beyond a reasonable doubt outside the courtroom can lead to, and certainly does not protect from, injustice.”

Several weeks ago I wrote a letter to Dr Paul Woods, President of LHSC in London, sending the letter to him specifically, by Express Post, explaining the situation and attempting to get someone to resolve this without the HRTO deciding on it based on misinterpretations of my application by administration staff at the very beginning, sending me a NOID (Notice of Intent to Dismiss) based on their faulty reasoning and neglecting to sign the document, which I am assuming means it wasn’t an authorized decision. I never received acknowledgment of my letter.

I look back now, and see that the Dr’s decision to send me for a diagnostic VNG test was a good decision. The problem was that I was being offered only a fraction of the complete test, an aspect of discrimination, based on age and gender, that is probably quite common. The fact that the girls on staff turned against me when I asked questions about it, accusing of me of being rude when I hadn’t been, and the fact that the Dr put this into his report on the appointment, affected future attempts to have a family doctor, leaving me feeling disenchanted with the medical profession and the integrity of the practice of health care. Now I am waiting to see how the HRTO will deal with this matter, having told me that the HRTO does not deal with cases involving “medical decisions.”    

See additional article below in List of references.
  
July 9, 2018  Prime Minister Justin Trudeau

Another dilemma has occurred, not so easily resolvable because this time, PM Justin Trudeau is the one caught in the middle. See ‘Hypocrisy is at the crux of theTrudeau groping allegation,’ July 8, 2018. On the one hand, Trudeau allegedly behaved inappropriately toward a young woman 18 years ago, at a music festival. As a result, her colleagues came to her rescue and an editorial was written in the newspaper she worked for as a reporter. Her name remained anonymous, as did the precise behaviour attributed to Trudeau, then a teacher. He was named. She wasn’t. He apologized and that was the end of that. Until now.

The dilemma has occurred because Trudeau has endorsed a policy of zero tolerance towards men who commit sexualized occurrences against women. True to his feminist beliefs, Trudeau insists that women ought to be believed when they speak out against such incidents. He has managed to get himself in hot water over his quick responses to some politicians failures in their interactions with women. Now this.

Strangely, his credibility appears to be declining over this mess, while the unnamed woman still has credibility, largely, I believe due to the support of her colleagues who likely were the same people who interviewed her and passed the message along that she wanted nothing more to do with this. So having raised it, very publically 18 years ago, in a national newspaper, and offering nothing – no name, no details of the incident, nothing except that she felt disrespected – she now wants to let it go.

This seems very one-sided. Trudeau has been left holding the bag. It appears that both of them may have made mistakes. His was presumably an overzealous flirtation. Hers was to react strongly to what used to be normal behaviour between men and women (which often left one or the other uncomfortable emotionally).  And she told her colleagues who may have thought this made good news – a story about the son of former PM Pierre Elliott Trudeau.

Some may see the woman as the innocent party, while others  - perhaps not as many – side with Trudeau. But is he a hypocrite? I don’t think so. He is a well-meaning man who is the Prime Minister, seeking a new way of forming a working government. Is he sincere? Mostly, he is, as well as practicing tolerance and acceptance with a sense of social justice.  He is not perfect, though for a while he thought he was, endorsing zero tolerance for men’s mistakes, until he was caught in the same web other men have been.

I cannot see at this time how justice (at least social justice) can be applied to this situation if the woman does not come forward and tell her side of the story. I understand she has given her name now, but that still leaves the original editorial in place, that was written about her (or by her, about how she saw it).  Without that, in this new world of the Me Too movement, Justin Trudeau is left with his loyal supporters going about their business hoping he can keep his position and regain the trust of the people so he can continue to do his good work – and do it better while he continues to learn.

What she – the woman who was a reporter – gained from all this she got 18 years ago – the story for her newspaper, an apology, and apparently her self-respect back. She may think there is nothing more to gain, but by telling her story, other women can learn from it and can gain confidence. Did she do this for herself, or for herself and other women?   Which one is the hypocrite – Trudeau or her?

To consider who has the power and which one is using it above an acceptable level is what needs to be determined. Who stands to gain – and what – and who stands to lose. Was what the woman experienced an emotional ordeal, and what did she lose besides a momentary feeling of lack of respect from someone who ought not to have mattered to her, except he was the son of a Prime Minister?

Calling Trudeau a hypocrite even though many must have recognized the errors he was making as he learned to do his job is hardly fair to him or the rest of Canada.  The main thing, now, is what he does – what he is able to do – to make this situation right.  He is on a steep learning curve.  See additional articles below in List of References, eg. What we’ve missed in the conversation about Justin, 2018. 

July 30, 2018 Stormy Daniels

Another account of what is meant by credibility comes from an article in Macleans by Laurin Liu, a millennial author, who attributes the characteristic of credibility to Stormy Daniels, paid sex worker to Donald Trump, to her narration of the sexual encounter she had with him shortly before he became President. See ‘How Stormy Daniels is closing the credibility gap’, 2018. The author refers to Miss Daniels, aka Stephanie Clifford, as having credibility in her manner, coming across as trustworthy, while ignoring any reference to women having credibility due to their careers, personal wealth, marital status, community status, and so on – not inherent but marital, social, financial, and employment attributes.  Liu states at one point, “For many men, Daniels is believable; for many women, she is not just believable, but relatable.”

Laurin Liu explains the idea of the gender “credibility gap” which suggests that “women are less likely to be believed when they make certain claims (against men), because they are believed to be inherently less competent or trustworthy. In other words, in an exchange of he-said-she-said, the former is likelier to win” (‘Cassandra among the creeps,’ 2014 in ‘How Stormy Daniels’, 2018) . The “certain claims” being made, however, in this situation, are specific ones whereby Stormy Daniels had, she says, unwanted sex. Thus there would be men who would see Daniels as agreeable, and probably credible. A lot of women may well have had the same kind of experience, not being coerced, exactly, but agreeing to sex for the sake of their job, or getting a leg up on their career. So both men and women could be seeing Stormy Daniels as credible, for this reason. But was this a matter of credibility or was it a change in power relations between men and women, giving women a voice, but not the complaining voice of Me, Too.

There’s a difference between credibility and a person (female, in this case) siding with another (Stormy Daniels) because she’s had a similar experience. Then it becomes a matter of sexual politics, and not that Stormy Daniels demonstrated inherent credibility, or credibility through the jobs she has done in her life.

This question has to be asked wherever women side with someone or men, but the subject here is women siding with Stormy Daniels).  Are they doing so because the woman sounds as though she is telling the truth through her demeanor, or because she has been known to be truthful all her life (inherent credibility), or because she holds a responsible position at work, or because she is married to a man with high status in the community?  And what about the women taking Ms Daniels’s side. Do they have credibility, based on their status in the community, or inherent worth, or do they do so because the person they are holding up as a credible person (male or female) is the one who enables her to receive a fat paycheck?

The ‘credibility gender gap,’ says Rebecca Solnit, used to be about men having credibility while women often had none, especially when sex was the subject of discussion (see Cassandra, 2014). It wasn’t all that long ago that men controlled women’s sexuality. With the coming of ‘the pill,’ the oral contraceptive, and feminism, women are able to take more control over their lives. Stormy Daniels apparently feels empowered by her choice of career, and by the words used to describe her, says Laurin Liu. Ms Daniels is right that prostitutes should also be treated with dignity and respect, but that doesn’t require identifying with her cause or idealizing her situation.

The issue appears to be that Ms Daniels believes she should have been paid by Trump as well as allowed to speak about the sexual encounter.  But is this story really about sexual liberation, or is it about women finally being in a position to tell men what they really thought of them, and what they really think of sex when presented to them in the coercive manner that it sometimes is?  Is it about the worthiness of women as credible narrators, or about how women in greater numbers will now choose to side publically with women who they see as having had a similar sexual experience of life as their own?

This story of the credibility of Stormy Daniels, together with the other sections on the themes of credibility and the presumption of innocence, bring the subject into focus in a way that enables them to be understood, by lay persons and others. The topic of credibility, and presumed innocence, taken as one, is not fixed but fluid in the face of changes in the power structure of society and as new knowledge comes to light about individuals themselves and topics of concern in society. Race, gender, sexuality, and increasingly aging and sexual misconduct are in the public eye more than ever. This blog piece “Presumed Innocence” has moved from one subject to another, with each area contributing to a greater understanding of the others, and of how credibility and the presumption of innocence can be understood.



List of References  - organized according to each of 4 sections

References - Patrick Brown

The presumption of innocence is for courtrooms, not politics
by Michael Spratt
CBC Opinions
Jan 30, 2018
retrieved Jan 30, 2018

Two women accuse Patrick Brown of sexual misconduct
Jan 24, 2018
By Victoria Gibson
The Star
retrieved Feb 2, 2018

Would-be Ontario PC leader Patrick Brown driven to win
Torstar News staff
Metro News
May 3, 2015
retrieved Feb 5, 2018
Added Feb 21 2018

Patrick Brown cleared to run for Ontario PC leadership
By Amara McLaughlin
CBC News
Feb 21, 2018
Added Feb 21 2018

Ontario PCs overturn nominations, bar former leader Patrick Brown from running as candidate
by Karen Howlett
Globe and Mail
March 15, 2018
added July 9, 2018

Patrick Brown to run for Brampton mayor
By Noor Javed, Staff Reporter
Robert Benzie, Queen's Park Bureau Chief
The Star
July 27, 2018

References - A doctor, his staff, the HRTO, ageism and me

Ageism in Ontario's health care and human rights (HRTO)
by Susan McPherson
Sue’s Views on the News
Dec 21, 2017

Why and how I was discriminated against – explaining to HRTO’s Dr Fthenos
by Sue McPherson
Sue’s Views on the News
Dec 29, 2017

Narratives and Wisdom: the lives of women growing older
by Sue McPherson
S A McPherson web site
2004

References - Prime Minister Justin Trudeau

After 'reflecting very carefully' on groping allegation, Trudeau says he doesn't feel he acted inappropriately
by Marie-Danielle Smith and Adrian Humphreys
National Post
July 5, 2018 10:51 PM EDT. Last Updated July 6, 2018 1
0:49 AM EDT

‘Hypocrisy is at the crux of the Trudeau groping allegation’
by Robin Urback
CBC News
July 8, 2018, 2:41 PM ET

‘People experience things differently,' Trudeau says of groping allegations
By Kayla Goodfield and Chris Herhalt
CTV News Toronto
July 6, 2018 7:00PM EDT Last Updated July 6, 2018 8:01PM EDT

What we’ve missed in the conversation about Justin Trudeau’s alleged grope
By Alheli Picazo
Macleans
Jul 23, 2018

References – Stormy Daniels

How Stormy Daniels is closing the credibility gap for women
By Laurin Liu
Macleans
Apr 6, 2018

Cassandra Among the Creeps
By Rebecca Solnit
Harper’s  ‘Easy Chair’
October 2014 issue

Prostitutes take their desires to the Supreme Court
By Sue McPherson
Sue’s Views on the News
23 January 2012 (revised Jan 25, 2012)
A couple of the links are no longer working in this article so I have added the link to another piece on prostitution written the same year, as follows:

The decriminalization of prostitution: two women talking
By Sue McPherson
Sue’s Views on the News


29 December 2017

Why and how I was discriminated against – explaining to HRTO’s Dr Fthenos

1. On November 6, 2017, I submitted a 50-page Application to the Human Rights Tribunal of Ontario, describing how I was discriminated against by 7 individuals (naming also one organization) in a total of 9 various incidents/events over a couple of years or so. The individuals were doctors, administrative staff, and other staff at a hospital.
2. This is the second blog entry I have written on this subject of this HRTO Application. See also, Ageism in Ontario's health care and human rights (HRTO), Dec 21, 2017.
3. Brief Chronology
June 27, 2017 – CPSO complaint submitted (College of Physicians and Surgeons of Ontario)
Nov 6, 2017   –  HRTO Application submitted (Human Rights Tribunal of Ontario)
Nov 27, 2017 – email to HRT requesting status of Application
Nov 27, 2017 – email response from HRTO re status of Application – in a queue
Nov 28, 2017 – Letter by email to Dr Fthenos, Registrar, HRTO, to remind him of the CPSO
                         complaint
Dec 7, 2017 –   Letter to Dr S. Bodley, President, CPSO, informing him of the related HRTO
                         Application
Dec 11, 2017 – Letter from Dr Fthenos, HRTO, Notice of Intent to Dismiss
Dec 18, 2017  – my letter to Dr Fthenos, HRTO Registrar, requesting extension,
                          among other things
Dec 21, 2017 – email to Dr Fthenos, Registrar, HRTO requesting response and time extension
Dec 21, 2017 – Ageism in Ontario's health care and human rights (HRTO).  Blog:
                         Sue’s Views on the News
Dec 21, 2017 – email to HRT requesting time extension on Notice of Intention to Dismiss and
                         corrections
Dec 21, 2017 – email to HRT requesting correction of clerical errors
Dec 29, 2017 – Why and how I was discriminated against – explaining to HRTO’s Dr Fthenos.
                         Blog: Sue’s Views on the News

One letter, then another
4.  On Monday, December 18, 2017, I wrote a letter addressed to Dr Georgios Fthenos, Registrar of HRTO, about a letter I received from his office, dated December 11, giving me a Notice of Intent to Dismiss my Application. At first I assumed their letter was in reponse to my own letter of November 28th (by email attachment), addressed to Dr Fthenos specifically, hoping to avoid the letter being taken up by someone else who had the authority to, thus not getting my concerns addressed. In response to the Dec 11 Notice of Intent to Dismiss, I sent a letter by regular mail, on Dec 18, 2017, addressed to Dr Fthenos, Registrar, HRTO, with questions and a request for an extension of time. Just before Christmas closing, on Thursday, December 21, I emailed a reminder to the Registrar at HRTO, about the request for an extension of time and about possible errors. I requested that he please send his response by Wednesday, December 27, 2017.  To explain how this works, I shall say here that emails to the HRTO are automatically addressed to the Registrar, to HRTO.Registrar@ontario.ca , but would not ordinarily go to the Registrar.  It is part of the mystique of the HRTO. I have not heard back, so I must continue to address my concerns about my Application and the way Dr Fthenos and the Tribunal are carrying out their duties.

5. In the letter dated Dec 11, 2017, containing the Notice of Intent to Dismiss, signed automatically by Dr Fthenos, the Registrar, I was informed that my Application did not identify specific acts of discrimination within the meaning of the Code, as it appeared I had explained only in general terms that I have been treated unfairly without connecting the “unfairness” to one of the grounds set out in the Code. See one example from my Application of an incident that I explain in terms of the Code that they did not see as an incident. Dr Fthenos, or the unnamed person doing the work for the Registrar, presumably has the power to dismiss my Application if I don’t write it up in the manner they expect it to be done. My Application has not yet been accepted to be processed, so there is no caseworker I can approach, only address my concerns to the Registrar, Dr Fthenos. But I don’t know if he gets to see anything I write and send to him. The concern of whoever wrote to me was not the letter I wrote to Dr Fthenos on Nov 28, however. It was how I wrote up part of the Application for the HRTO.
Ontario Human Rights Code
6.  Under the CODE, incidents that Applicants bring to the HRTO must be about discrimination on particular grounds: disability, creed, sex, sexual harassment and/or solicitation, gender, sexual orientation, family status, marital status, and age (brief version of grounds). In my Application I have named discrimination on the grounds of sex (being female) and age (being an older female), marital status (being single), and family status (being part of a family but not living together). I have tried to supply the information I was asked for, but the request did not give any details except that I must relate my claims to the CODE. The writer was presumably seeing what I have complained about as incidents of meanness, or unfairness in general, not as being related to any of the grounds mentioned in the CODE.  But people  - doctors, nurses, admin staff, etc, are not unfair in general, I wouldn‘t think. They have something going on in their heads when they treat one patient better than another, or deny adequate diagnostic treatment to some patients but not others. I doubt that the desk staff draw straws to determine which patients will get what kind of treatment on this day, as they look at them waiting patiently in the waiting room. They know, from what they see in their files, or who is accompanying them (if anyone), or from how old they look, how ill they seem, and so on, what kind of treatment they will be offered. When people are treated unjustly in hospitals, one at least hopes it isn’t because of some characteristic irrelevant to life’s journey not usually acknowledged as a stigma such as colour of hair, probable time left to live, ability to cope, style of writing, or whether one is needed by a significant other or family.
7.  I believe I do understand what I am expected to do although I question the authority of the person who has said I must, and of the necessity of stating each incident, for each respondent, and showing its meaning under the code. The person who informed me, in the Notice dated Dec 11, didn’t explain which sections needed to be rethought, and rewritten, and I was unsure what I needed to be doing. I believe that having 7 respondents makes it more difficult to connect the acts of discrimination to the different parts of the Code I am basing my claims on. It is more difficult, I think, to see the whole picture when the incidents of discrimination, and how they relate to the Code, are looked at as distinct incidents. And it is probably only when the entire situation is looked at that it can be recognized for what it is – a situation of discrimination on the grounds of sex and age, and family and marital status.

Explaining Discrimination within the Code - and an example
8.  In the Application Form, Part C, Under the heading ‘Questions about Discrimination on the Ground of Age,’ for example, the question reads: Explain why you believe you were discriminated against based on your age. I believe I have answered that. I tried to answer, “How” as well as “Why.” It is possible that when a subject such as discrimination is a familiar one, that a person tends to take for granted that the reader – the caseworker or even Dr Fthenos himself, in this case, can understand what I am saying, and how I was discriminated against. I have been studying and writing about aging and gender for many years now, at universities I have attended and on my own. But do the individuals who work at the HRTO understand the complexities of all types of discrimination? Why did the person who responded to me say:
the narrative setting out the incident of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code” (Letter, Dec 11, 2017, signed automatically, Georgios Fthenos, Registrar).

Yet here is one such incident , one more time, that I included in Section C (Goods and Services) of my Application. It was the last one I mentioned, about the doctor who attempted to find a solution but only belittled what I had been through and how serious this matter was. Besides the letter-writer not being able to find one single incident of discrimination, I believe it is only respectful to provide a name when writing a letter that contains the possibility of a momentous decision. A person writing anonymously can say anything and not have to take responsibility for mistakes. Furthermore, that person neglected to provide details of which section or which question s/he need to have me make changes to. 
9.  In the Application, in the section about the Code, I explained how I understood the relevant parts of the Code and included them in my response – not in narrative form but in numbered paragraphs. If the comment by the person who wrote to me was about Question 8, I was simply doing what I was expected to do, according to the Applicant’s Guide to Filing an Application:
You must tell the HRTO what happened to make you believe that the respondent has discriminated against you based on one of the grounds in the Code.  .  .  . start from the beginning and end with the last incident of discrimination . . . . include what happened, who was involved, when it happened, where it happened. .  .  .  we encourage you to tell your story in chronological order” (p 19).
If it comes across as a narrative, with numbered paragraphs, describing each incident in order, it only makes me wonder if the writer understood what was expected of the Applicant, especially when there was so many incidents and respondents. It must come across as a rather long narrative, but that is what was asked for.   
10. I imagine that if a person has named only one Respondent, it is easier to say something to the effect that, This person discriminated against me by bullying me because he thought he could get me to back down and shut up because I was old and needed the health care I was getting even though it was substandard. But I would have to repeat the same sentence 6 or 7 times, for each of the respondents who bullied me. I wonder if the person writing to me has had experience doing Applications that have involved 7 individual respondents and 9 incidents/events.
Three excerpts – Ageism and Public Interest Remedies
11. As an example of how I laid out the section about “Why” in Part C, I include a link here to the first 3 paragraphs out of 13 in total, of my response in the section on Discrimination on the grounds of Age. See 2017 Dec 28 excerpt age discrimination  .  Secondly, I have included the first couple of pages from my response to the question on discrimination on the grounds of family and marital status, explaining "why" I believed I was discriminated against.  I also include the section ‘Public Interest Remedy’ also called the Remedy for Future Compliance,  that was part of the Application to the HRTO, Nov 6, 2017, on how to improve the hospital’s approach to problems of discrimination, including prevention. Although the paragraphs are not numbered, it is only one page long and is clearly specific about what I see as necessary and how to solve each problem.
Proving discrimination
12. I believe Dr Fthenos or the writer of the letter may have been mistaken in implying strongly that I need to prove my case in writing, bit by bit, before I get to the Hearing. As I have stated before to him, my case relies on circumstantial evidence, and so will become much clearer as time goes on. It may not be evident at this time that the incidents I had to put up with were due to the grounds I stated – age, sex, etc, family and marital status, but taken on the whole – each piece as part of the whole – and it will be clearer to any reasonable person that they are part of a wider situation of discrimination that I was subjected to.
Sending mail between HRTO and others  
13. The information in paragraphs 12, 13, and 14 has been included in emails I sent to the HRTO yesterday, Dec 28, in an attempt to have errors in calculation of time corrected, and to request an extension of time to respond to the Notice of Intent to Dismiss.
In the letter dated December 11, 2017, I was given a deadline – Monday, January 8, 2018 – to respond to a lack of detail in my Application for a Human Rights Tribunal, in effect allowing me only 23 days to deal with it, from December 15 to January 8.   The Rules of Procedure of the HRTO state,
Where a document is delivered by a party or sent by the Tribunal, receipt is deemed to have occurred when delivered or sent: 1. by mail, on the fifth day after the postmark date” (Rule 1.22).
If Rule 1.22 applies to the Registrar, for this document sent to me, then even if the letter was sent to me (and postmarked) on the day it was written, December 11, 2017, it would be deemed to have arrived on December 16, leaving me 23 days to respond.
'Notice of Intent to Dismiss' Rules
Under Rule 13 of the Rules of Procedure, DISMISSAL OF AN APPLICATION OUTSIDE THE TRIBUNAL'S JURISDICTION, it is stated that
“Where it appears to the Tribunal that an Application is outside the jurisdiction of the Tribunal, the Tribunal shall, prior to sending the Application to the Respondent(s), issue a Notice of Intention to Dismiss the Application. The Notice will:
a) be sent to the Applicant only;
b) set out reasons for the intended dismissal; and,
c) require the Applicant to file written submissions within 30 days
” (Rule 13.2 ) 
14.  The Registrar Dr Fthenos could have given me 30 days to respond to his notice, but he only allowed me 23. The writer/Dr Fthenos seemed not to have taken into account the extra 5 days for getting through Canada Post (Rule 1.22). And it still wouldn’t add up to 30 days. Neither was I granted the full 30 days mentioned in Rule 13.2, after receiving Notice of Intent to Dismiss.
15.  Even if the Rule 13.2 had said I was to be given 30 days to respond, I understand he has the power to lengthen or shorten any time limit in these rules (Rule 1.7, Rules of Procedure). In that case, one would have thought the Registrar or his secretary would have mentioned what rule they were using to decide how much time to give me to respond.
16.  There is another aspect to this problem of the possibility of having my Application dismissed. Under Rule 13 of the Rules of Procedure, DISMISSAL OF AN APPLICATION OUTSIDE THE TRIBUNAL'S JURISDICTION, it is stated,
The Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal” (Rule 13.1, Rules of Procedure).
In other words, if Dr Fthenos decides one part or all of the Application isn’t within the jurisdiction of the HRTO, because he is reading my Application in a certain way, or for some other reason,  is it possible that he can dismiss not only that one part but the entire Application? He has already stated (or the reviewer/caseworker has) that he cannot identify a single act of discrimination within the meaning of the Code in the Application I wrote.  It seems almost as if I am expected to prove in my Application that I was discriminated against, rather than have a Hearing at which to discuss the incidents and alleged discrimination. 
Making Changes to Section C
17.  Nevertheless, I will attempt to make changes in the format of that part of the Application that deals with the Code, linking specific incidents with the applicable Code. I thought I had done that, to some extent, but presumably not enough to be recognized as such. And I can only hope that I am granted additional time to complete the changes. The power of the Registrar, or his staff who write letters in his name, to dismiss my Application when I have myself have found what appear to be errors in calculation of time, a lack of detail in the reasons given to me for the Notice of Intent to Dismiss, no acknowledgment of any specific acts of discrimination in my Application, and scant information on which sections in my Application need changes, leaves me hoping that when it comes to the more important decision, of whether I can continue on with the Application for a Tribunal or not, special attention will be paid to handling it fairly and with social justice in mind. The Rules of the Social Justice Tribunals of Ontario (SJTO) state:
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
 "(A3.1).
My HRTO Application
18.  As it stands currently, the Application I have submitted to the HRTO has not yet been processed, having only been looked at by an unnamed person at the HRTO office in Toronto and/or the Registrar, Dr Georgios Fthenos, and declared that
a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents” (Dr Georgios Fthenos, Dec 11, 2017).
My Application is 50 pages long. I have described each of the nine incidents. I have described how each of these affected me. And I have described how each relates to the Code of the HRTO – how they were acts of discrimination  under the Code.  I have described how family and marital status and the intersecting grounds of age and sex are understood within the Code, and stated this is how I was discriminated against.  I have included here excerpts from both the beginning of the section in my Application on age and sex discrimination, and on family status and marital status. But I will make changes to that section.
Initial emails with HRTO
19.  Following is the initial sequence of emails and letters back and forth between the HRTO and myself. My HRTO Application had been received by them on November 6, 2017, and given a File Number, but at no time did I receive notification that my Application was being worked on – being processed. When I emailed for the status of my Application, on Nov 27, 2017, I was informed the same day by email that it was in a queue. I did finally contact the HRTO (also called the Tribunal and/or the Registrar) on November 28, by email plus attachment, to inform the Registrar that my Application included information about a related investigation under way, at the CPSO (College of Physicians and Surgeons of Ontario). That complaint was about another doctor, whose attitude and behaviour towards me was due, in part, to his knowledge of the negative reports written by the specialist/surgeon I had named in my Application to the HRTO. These two investigations are connected, and I wanted to ensure that the CPSO was aware of this Application. When I had attempted to inform the investigator at the CPSO of the HRTO Application, she simply said that each investigation was confidential so the CPSO would not know about the HRTO Application. As it happens, they are not confidential. I was required to include details of the CPSO complaint, including the original complaint form (dated June 27, 2017), in my Application to the HRTO.
20.  After I wrote that email to Dr Fthenos, on November 28, 2017, explaining about the CPSO investigation, in return I got a letter in the mail, containing no mention of my concerns, but informing me of his 2017 Dec 11 Notice of Intent to Dismiss  .
Human Rights Legal Support Centre and the Summary Hearing
21. On speaking with the Human Rights Legal Support Centre they told me that the HRTO didn’t deal with incidents involving medical decisions.  I didn’t know that, but I still have 6 or 7 other incidents the Tribunal could investigate. The person at the Legal Centre did not want to discuss anything more with me with me when I said to her the medical decisions were just just the start of it. I know I must have made mistakes in the Application, and I would appreciate the opportunity of correcting them, and giving evidence, rather than see the entire Application dismissed.  I gather, ordinarily, that this decision of the Notice to Dismiss would be made at a Summary Hearing, where the Applicant would be able to defend their position, but the Tribunal has not requested a Summary Hearing, although the Respondent apparently could, but I thought not until my Application had been processed, which would mean that the Respondents named in my Application receive notice from the HRTO that this matter was being investigated. I am unsure whether a Summary Hearing would be of greater benefit at this point.
22.  I submitted my Application to the HRTO on Nov 6, 2017. I received confirmation but for several weeks it was in a queue, I was told on November 27 when I inquired. Then, on Dec 11, I was sent by mail a Notice of Intent to Dismiss my Application and given until January  8 to respond. The way Dr Fthenos, Registrar and human being, or his assistant, unnamed, has left it (intentionally or not) is that I am subject only to the decision made by him or the assistant, whether or not to dismiss my Application. See Paragraphs 5, 7, 11, and 16. 
 

23. At best, I am at risk of having the Registrar, Dr Fthenos, dismiss my Application on his own ability to reason, and his own knowledge of discrimination on the grounds I  have mentioned (has he read through the 50 pages?).  Worse, it could be someone – unnamed – who is just learning how to process HRTO Applications.  I do have concerns. It’s one thing to have respect for someone in authority, and to show respect, but quite another to trust the outcome, especially when mistakes have been made already, and comprehension of discrimination on the basis of age and sex has not been demonstrated to me in the letter I received (2017 Dec 11 HRTO Notice of Intent to Dismiss), signed automatically 'Georgios Fthenos'.

21 December 2017

Ageism in Ontario's health care and human rights (HRTO)

In November, 2016, I was subjected to false accusations and lies (which amounts not only to harassment/verbal abuse but also to discrimination under the Human Rights Code) in reports written by a specialist/consultant at LHSC (London Health Sciences Centre), and other employees.  I identified that incident, among others, as discrimination on the grounds of sex and age, and marital and family status, separating it into nine distinct incidents, and submitted an Application form on those grounds to the HRTO (Human Rights Tribunal of Ontario).  I named eight Respondents, one of them being the organization LHSC, the rest being individual Respondents.

Writing up this Application was complex enough. It was impossible to make all the connections that would enable a caseworker to understand at one reading what it was all about. But this was only the Application, not the hearing. And nothing stands still. Even since submitting my Application, on November 6, 2017, there have been other interactions, not in person but by mail, or email, or telephone.  The distortions of truth coming from those interactions have been more than simply frustrating. They’re enough to make a person lose faith completely not just in the human race but in the  safety or value of speaking in person to someone who might then tell lies and manipulate one. There was also the doctor who wrote to me, copying his letter, sent by standard mail, to several of his colleagues. I don’t have that option, to start sending so many letters off to people, and so am limited to using mainly email, a means of making contact that is not reliable or proof of anything except that one may be a nuisance, probably, something that may not apply so easily to a letter writer.  Then it came to be that emails themselves – not mine but other individuals - were likely being manipulated, but I had no power to stop that from happening.

It is difficult to be an older person in Ontario and not have the resources or support to fight the battle, not just against the original source of discrimination and ageism as a patient, but then with the HRTO. I don’t qualify for Legal Aid and don’t have the funds to get a lawyer or even a paralegal otherwise, as far as I know. Despite seeking the more reasonable alternative in the London area I didn’t find a paralegal who appeared to have knowledge of the complex system of human rights in Ontario. That’s different from human rights abuses that happen abroad. Here, it’s about discrimination on grounds that are listed in the Human Rights Code, such as age, sex, race, marital status, etc, that occur in education, or employment, or in areas such as goods and services.  

The woman at the HRTO Legal Centre will only say to me now, after hearing the first part of my Application (about this being about a doctor) that they don’t deal with cases about doctors’ medical decisions. That is how this situation started – regarding a medical decision made by the doctor, but it has gone way beyond that. In fact, looking back at it more objectively, I believe the main incident for the HRTO (since he has been absolved of responsibility of  treating me inadequately and carelessly) must then at least be about the damning reports the doctor wrote about me, no doubt egged on by his loyal staff.  This will get sorted out, as time goes on. It is just difficult to pull it all together when others say that’s not allowed, or that’s not the problem.

I wonder if the participants in this in entire situation were knowledgeable enough to realize that the larger they make it – the more complex and involving more people than just the doctor – the less likely it becomes that the HRTO or any other complaints system I went to would see as an issue they can resolve – or was it simply that they figured if they ganged up on me, I would give up and go away. According to the doctor’s reports, not just one or two, but all his admin staff accused me of being rude. I only recall seeing two of them – the front desk clerk and the person who showed me to my appointment, but then there was the audio clerk too. And the appointment-taker, so named because she was only the voice on the other end of the telephone, there to make – and break – appointments.

I tried to explain that at one point, probably in the Application, that part of that problem, the one with the front desk clerk, could have been a matter of perception (with discrimination as its basis).  If she, as secretary of the doctor, saw herself as above the patients – or above some patients – they may consider it rude even if the patient speaks to attempt to understand something. Treating patients as children is one form of ageism – as people not competent, or on the other hand as not worthy, being only patients in the hierarchy. Besides that, the front-desk clerk may also have had poor self-esteem, and thought I was being critical of her, which I wasn’t. I just thought that, 2 years down the road, I could try to make sure that my reports didn’t keep going to the original referring doctor. On the other hand, her behaviour (which wasn’t immediate, only coming to light weeks later) may have been done to me to turn the tables, as it were, knowing that I realized I was being shortchanged on the diagnostic test that had been offered me. Thus, accusing me of being rude, in effect, treating me like a child, was to do the opposite of what I was about to bring into the open, the fact that the doctor saw it okay to treat me, an older female, having no family close by and no husband, the way he did. Thus, by the doctor accusing me of being rude, the real reason behind my attempts to get answers about the test I was being offered, when I had already been dismissed so quickly by the doctor at the appointment, was at risk of being ignored completely.

I have been put in a situation of trying to understand why this or that happened to me, and whether it was legitimately a case of discrimination on the grounds of one or more of sex and age, and marital and family status.  And I have had to do it for every incident, of which there were nine in the Application I made – 9 incidents, 7 individuals. If the HRO believes in social justice, I hope they would make it as bearable as possible for me to engage with them in achieving a just solution.  

At this time, there is a delay in processing new Applications, I have been informed, which are taken in the order they are received.  So, meanwhile, no caseworker has been assigned to my Application, made on November 6, 2017.