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
Added June 25, 2016  - improved 20 min excerpt of "street drug" incident.

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’.

[Another try has produced a 20 minute excerpt of the April 28, 2014 incident, with higher volume and greater clarity. It starts with changes being made to the Rx renewals, at approximately the half-way point going into the incident where the doctor demanded that I submit a urine sample for "street drugs" if I wanted a renewal on my prescription for two Tylenol 2 tablets daily, for pain due to 2009 broken ankle] (added June 25, 2016).

   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.

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