Landmark Decision Released: Ontario Government and Psychiatrists are Liable for Unethical Experimental Programs Involving Mentally Ill Patients
TORONTO, June 29, 2020 /CNW/ - On June 25, 2020, Justice Edward M. Morgan of the Ontario Superior Court of Justice released his judgment in a civil lawsuit brought by 28 former patients of the Oak Ridge Division of the Penetanguishene Mental Health Centre against the government of Ontario and two psychiatrists, Dr. Elliott T. Barker and Dr. Gary J. Maier, for subjecting patients to coercive, unethical and degrading human experimentation, without their informed consent from 1966 to 1983.
In a 310-page decision delivered after 53 days of trial evidence and submissions, Justice Morgan held that Ontario and the psychiatrists involved in operating the experimental programs breached their fiduciary duties and committed assault and battery by subjecting these patients to unethical and medically meritless programs.
The "flagrant and outrageous" programs were developed by Dr. Barker and implemented by him and Dr. Maier with the knowledge, and under the supervision, of the Crown. In the Defence Disruptive Therapy program, patients were administered high doses of mind-altering, hallucinogenic, and demystifying drugs, placed and restraints and supervised by "patient observers". In the Capsule, groups of up to eight patients were placed nude in a small, windowless room, shared an exposed toilet and were fed liquid food through straws in the wall. In the Motivation, Attitude and Participation program (MAPP), patients were subjected to "tortuous punishment", beginning with four days of solitary confinement followed by a strict regime that required them to sit motionless for hours, while "patient teachers" meted out punishments. As noted by Justice Morgan, the patients at Oak Ridge lived under the constant shadow of MAPP, described by Plaintiffs' expert, renowned forensic psychiatric Dr. John Bradford, as "positional torture".
The programs were designed to break down and change the Plaintiffs' personalities using techniques such as drug-induced delirium and hallucination, brainwashing and positional torture, with no apparent plan for reconstructing them once they had been broken down. Participation in the programs was a "condition for gaining freedom" from the maximum-security institution, withdrawal was prohibited and non-participation was punished, often at the hands of other patients.
Justice Morgan rejected Ontario's argument that it did not owe the Plaintiffs fiduciary duties because of its mandate to protect public safety: "it is not part of the Crown's custodial duty to administer mind altering hallucinogens or pain and anguish-inducing Scopolamine to the Plaintiffs. The Crown has no public safety obligation to place the Plaintiff stark naked in isolated and close quarters with each other in the Capsule, or to require them to sit rigidly immobile for hours on end in MAPP at the mercy of another patient, or 'patient-teacher', with a mental health background similar to their own. There is no conflict between the 'observation, care, and treatment' duty of the Crown toward the Plaintiffs and the protection and safety obligation of the Crown toward the public."
Justice Morgan found that the doctors and the Crown caused the Plaintiffs short and long-term harm that they did not deserve and that, in some cases, changed the trajectory of their lives.
One of the Plaintiffs, Danny Joanisse, was sent to MAPP on a number of occasions and was administered hallucinogenic drugs. He was also cuffed to a convicted pedophile murderer in the Capsule. In finding that the Defendants caused Mr. Joanisse significant short and long-term harm, Justice Morgan stated: "[h]e entered Oak Ridge as a 15-year old with a mental disorder that could have been dealt with benevolently so that, even if there was no cure, there would not be further infliction of harm. Instead, he was humiliated, degraded, and deprived of any sense of security".
Mr. Joanisse's experience is but one example of the meritless, abusive and experimental conduct of the Defendants. Another Plaintiff was 16 years old when he was admitted to Oak Ridge. He spent 6 of his 8 months at Oak Ridge in solitary confinement. The Court found that he was tormented while in Oak Ridge: "[r]eading [his] clinical history for those 8 months in 1971 is to read a tale of neglect and irresponsibility by Dr. Barker, Dr. Boyd and the entire institution. He was subjected to harmful lengths of confinement for the most petty of reasons and at the whim of other patients, with no hope of freeing himself from that cycle". While he went on to lead a successful life, this, according to Justice Morgan, "is a testament to his mental strength... One can suffer pain and continued harm and yet have the strength to persevere with life."
Joel P. Rochon, co-lead trial counsel, welcomed the decision: "This landmark decision underscores the inviolability and the right to human dignity of every person, regardless of who they are — no one should be exposed to dehumanizing and degrading treatment and experimentation. This decision sends a strong message that, in treating vulnerable, marginalized members of society, medical professionals are and have always been very much bound by ethical obligations and standards of professional conduct grounded in the Hippocratic Oath, the Nuremberg Code and the Declaration of Helsinki."
Professor Bernard Dickens, a leading medical ethicist at the University of Toronto, testified that the programs failed to meet the ethical standards of the day, including the ethical obligation of a physical to do no harm and to practice medicine with the best interest of the patient in mind. He opined that "the Province of Ontario did not provide adequate oversight of the patients' welfare and rights, leaving vulnerable, mentally-ill patients to the custody and care of psychiatrists who,… embarked on experimental programs in conditions that fell short of the ethical standards of the day".
Dr. John Bradford testified that no other institution in the world has ever employed these radical techniques. The lack of resources or inadequate staffing was not, and has never been, an acceptable justification for delegation of the doctors' core professional duties to untrained patients.
The Defendants' experts, including Dr. Stephen Hucker, conceded in cross-examination that the programs were unprecedented, unethical, and inhumane. Another defence expert, Dr. Jonathan Freedman, admitted that the Plaintiffs should never have been subjected to these programs.
The Plaintiffs were represented at trial by Joel P. Rochon, Peter R. Jervis, Golnaz Nayerahmadi and Adam Babiak of Rochon Genova LLP. The decision is a determination of liability on the merits in a lawsuit that began 20 years ago. The trial will now proceed to its second phase, which will involve a determination of damages, including whether punitive damages should be awarded against Ontario and the doctors.
SOURCE ROCHON GENOVA LLP
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