New Brunswick warned about using flawed Motherisk drug tests

The New Brunswick government was directly warned months ago about problems with hair-based drug tests, according to new documents obtained by CBC News.

Letters and emails sent to government officials highlighted serious shortcomings with Motherisk's tests, which were often used in child protection cases where the custody of a child was at stake.

Despite the warnings, months passed before officials announced a review of how it used tests from the Motherisk lab at The Hospital for Sick Children.

• New Brunswick will review cases involving Motherisk testing
• Discredited drug testing used in Nova Scotia, New Brunswick
• Sick Kids' Motherisk hair drug testing 'inadequate and unreliable,' review finds

The letters were sent by Sick Kids and the Ontario government in December and January, after an Ontario review found serious problems with Motherisk's practices.

Dozens of pages of documents released under right to information legislation detail those warnings and show how officials crafted messages about New Brunswick's use of hair testing, before backing away from the science entirely.

The province's child and youth advocate is questioning what the provincial government did with the drug tests after receiving the warnings.

"Whether or not the province through [the Department of] Social Development used testing results in December 2015, January 2016 after these notices came out, I don't know and I would be concerned if they did," Norman Bossé said.

Sick Kids admits the drug and alcohol tests produced at Motherisk are unreliable and may be inaccurate.

The hospital estimates as many as 1,400 people from New Brunswick had at least one hair sample tested at its now-closed Toronto lab.

Hundreds of those people produced at least one positive result between 1997 and 2015.

What isn't clear is how those tests were used in New Brunswick.

The Department of Social Development hasn't said how many of those tests it ordered.

And Sick Kids says it often didn't know who ordered the test unless it was contacted to help interpret the results.

Shortcomings revealed

In December, retired judge Susan Lang released the findings of a review into Motherisk's practices. She concluded Motherisk's tests were unreliable and should have never been used in court.

That same month, the Ontario government sent Lang's findings and details of its second review to child welfare officials in New Brunswick.

"The use of [Motherisk] hair-testing evidence in child protection and criminal proceedings has serious implications for the fairness of these proceedings and warrants an additional review," the letter says.

In January, Sick Kids sent those same findings to New Brunswick's attorney general, Serge Rousselle, and later to Social Development Minister Cathy Rogers.

"We are writing to ensure you are aware of this development and to reassure you that we will cooperate however we can," president and chief executive officer Michael Apkon wrote.

A change in position

For months, the New Brunswick government said it would continue to use hair testing from other labs and only review individual closed cases upon request.

That position changed in March, when the department committed to reviewing every case.

It also placed a ban on the use of all hair testing, admitting there are questions about the reliability of the science.

Ontario introduced a similar ban, but nearly a year earlier, in April 2015.

Rogers has declined to speak to CBC News about her department's use of hair testing.

Instead, her department sent an emailed statement on Friday afternoon.

In it, government spokesman Jean-Francois Pelletier says the department's shift was influenced by Ontario's decision to conduct a sweeping review — a decision made nearly four months before New Brunswick's own.

"After we were able to review the Lang report and we were made aware Ontario would be conducting reviews, we believed it was the right decision to follow suit," he said.

Few details on review

The New Brunswick government has said little about how its review into Motherisk testing will work and what it will do if it finds a test was used unfairly against parents.

"As we have previously noted, a positive [or negative] drug test result has never been the sole basis for a child protection decision in New Brunswick," Pelletier wrote.  

"A number of other factors inform such decisions."

Bossé has offered to help the government conduct its review, suggesting it could lend legitimacy to those proceedings.

But the government says it hasn't decided whether it will take the child and youth advocate up on that offer.

Even if he isn't involved, Bossé hopes the outcome of the review will be made public.

"I would think it's a public matter now. They should disclose to the public how the review is done, who was involved in doing the review."

Do you have a story tip you'd like CBC News to investigate? You can email reporter Karissa Donkin.