OTTAWA – Before his job was to investigate wrongdoing in the public sector, it appears Integrity Commissioner Mario Dion saw nothing wrong with injecting drugs into teenage inmate Ashley Smith against her will.
And now the doctor he based a majority of his report on says she didn’t have all the facts at the time.
Global News has obtained Dion’s 2010 report about Smith, the 19-year-old inmate who choked herself to death in a prison cell in 2007, as guards, on orders not to enter, stood by and watched.
It was written by Dion three months before he was appointed by Prime Minister Stephen Harper as the interim public sector integrity commissioner, a position made permanent in December 2011.
The report concerns three days at Joliette Institution in July 2007. Following an incident on July 22 in which Smith cut herself and inserted a metal object into her body cavities, she was tied down to a bed using four-point restraints and injected with anti-psychotic drugs. It happened despite her “unequivocal refusal.” In the following days, she was given a total of nine injections.
In his report, Dion concluded that the Correctional Service of Canada did nothing wrong.
“I have come to the conclusion that the CSC’s response was justified and not in contravention of any existing legislation and policy,” he wrote. He cites a section of the Quebec civil code as the applicable provincial law by which a doctor prescribed sedation and physical constraints without an inmate’s consent.
In an interview, Dion defended his report, conducted when he was semi-retired from the Parole Board of Canada.
“I reviewed the transcript, I spoke to investigators and I came up with my own conclusions,” he said. “She was already dead when I did the review so it would not have changed the outcome.”
He made his conclusions based primarily on the decisions of Dr. Michelle Roy, who authorized the injections by phone.
“Although she had never seen the inmate… she had familiarized herself with the inmate’s medical file,” Dion wrote in his report.
“Dr. Roy considered that the actions by inmate Smith when she was losing control of herself were a potential danger not only to her own life and physical integrity but to those of staff as well.”
But Roy has since tearfully testified at an Ontario coroner’s inquest that she did not have all the facts at the time.
A psychiatrist with more than 25 years of experience, Roy told the inquest in mid-May that she was dismayed to discover only recently a “more than huge” discrepancy between what a nurse had described by phone about the teen’s state and the reality of the situation.
“It is still disturbing for me,” Roy testified. “The situation that was described to me was a very severe agitation, that her life was in danger.”
Smith was not out of control at the prison in Joliette, Que., when she prescribed a powerful tranquillizer for Smith over the telephone.
Prison staff, Roy suggested, had completely misled her. “The only explanation I have is they were not used to dealing with this kind of patient,” Roy said.
In a follow-up email to Global News, Roy’s lawyer Mark Freiman said based on his client’s testimony, Roy was not expecting Smith would receive medication against her will and expected to be informed if Smith refused the medication.
“Dr. Roy was told that Ashley was in a very severe state of agitation,” wrote Freiman. “When Dr. Roy saw the videos in preparation for her testimony at the coroner’s inquest, she realized for the first time that Ashley was not in a very severe state of agitation.”
Oral medication was also available, he said.
“In the treatment of agitation, the surrounding environment is very important. Ashley needed to be put in a calm environment. Security staff could have stayed outside of the room, near the door.”
Correctional Investigator Howard Sapers, the ombudsman for federal offenders, said in an interview his office disagrees with Dion’s findings.
“We did not support the conclusions in Mr. Dion’s report,” he said, noting he shared that opinion with CSC commissioner Don Head and Public Safety Minister Vic Toews.
“It in addition to it being a human rights issue, it’s also an issue of just very basic legality,” he said. Smith was not certified under provincial mental health law at the time.
“This situation really demonstrates yet again that it’s very difficult for a correctional facility to also be a mental health facility.”
A report about the same incidents, commissioned by the Correctional Investigator’s office, found “several ethical, clinical and equipment-related shortcomings” in the way Smith was managed.
The report, written in January 2010 by psychiatrist Paul Beaudry, found that Smith was capable of giving free and informed consent and her behaviour did not pose an imminent danger to her life.
“Several comments made by the nursing staff on Ms. Smith’s state of health during the incidents of July 22 and 23, 2007 do not match the state she presented and raises doubts about the information that was given over the telephone to the psychiatrist on call,” wrote Beaudry.
Dion relied on DVDs of the incidents and a Correctional Service board of investigation report – a report heavily disputed by the Correctional Investigator’s Office – to make his findings.
He also read a report from a psychiatrist and member of the Medical Experts of Quebec who met with Roy and reviewed Smith’s file.
“I did not find it advisable to interview any of the witness,” Dion wrote in his report.
“It is a well-known reality that a witness’ recollection only diminishes with the passage of time.”
The report outlines incidents on July 22, 23 and 26, three months before Smith’s death, in which she receives nine shots of antipsychotic drugs and tranquilizers.
– On July 22 at 9:40 a.m., Smith cut herself while trying to remove a metal plate from the wall of her cell, and is suspected of inserting a metal object into one of her body cavities.
After she refuses to show the nurse her injuries, Roy prescribes by telephone a four-point restraint, an injection of Clopixol-Acuphase and a transfer to a nearby hospital.
Smith is extracted from her cell by the Institutional Emergency Response Team, transported to the health care unit and is tied down to a bed. According to Dion’s notes, “She quickly becomes agitated.”
At 1:03 p.m., “The inmate states she does not want an injection. The nurse replies she has no choice,” he writes. She is given the first shot against her will at 1:09 p.m.
Smith is then prescribed three other injections over the next two and half hours; she voices clear objection to all but the third. Just before 8 p.m., after seven hours tied to the bed, she receives a fifth shot despite “her unequivocal refusal.”
– On July 23, Smith attempts to self-injure again. She is given three more injections. “The inmate is really concerned with the pain injections can cause,” writes Dion.
– On July 26, prior to her scheduled transfer to another institution, Smith receives an injection two days in advance of the transfer “in order to protect her own safety and that of the staff members who will accompany her,” writes Dion.
The emergency team tells Smith she will be given an injection even in the case of refusal.
And at 5:46 a.m., she “accepts the injection after the nurse explained to her its purpose and the fact that she had no choice.”
In an interview, Dion said he has not followed Smith’s inquest since he wrote the report and wasn’t familiar with Roy’s testimony.
He said he believed Smith’s life was in danger when he wrote the report.
“I have a profound conviction this was the best professional advice considering the circumstances at the time,” Dion said in an interview.
“Of course if I had known the psychiatrist would testify three years later, and would indicate that she did not have enough elements to make a professional decision as to whether to prescribe or not to prescribe, it might have affected my judgment.”
Kim Pate, the executive director the Elizabeth Fry Societies who knew Smith and fought to broaden the scope of the inquest into her death, has also viewed the tapes which she calls “hideous.” She said she was shocked Dion believed Smith’s life was in danger.
“I would certainly question how likely he is to seriously review any of these matters if he didn’t find any problem with…what the doctor did and what was done to Ashley in those videotapes,” said Pate.
“I can’t imagine that he would ever find problems with much of anything.”
The Correctional Service of Canada refused to provide a copy of the report under Access to Information law, citing a “detrimental effect” on the inquest – a matter that Global is disputing in another case.
The report was instead released by the Office of the Correctional Investigator, under section 183 of the Corrections and Conditional Release Act, which allows the correctional investigator to disclose information that is necessary to carry out an investigation or to establish grounds for findings or recommendations.
Dion’s appointment followed that of Christiane Ouimet, the first integrity commissioner appointed under the Public Servant Disclosure Protection Act, created in 2007 by the Conservatives.
But Ouimet quit in the middle of her seven-year term after an auditor general’s report found she failed to investigate wrongdoing and harassed her own staff.
– with files from the Canadian Press