Report to the Minister of Justice and Solicitor General Public Fatality Inquiry

Transcription

1 Report to the Minister of Justice and Solicitor General Public Fatality Inquiry Fatality Inquiries Act WHEREAS a Public Inquiry was held at the Law Courts (North) in the City of Edmonton, in the Province of Alberta, (City, Town or Village) (Name of City, Town, Village) on the 11th day day of May, 2015, (and by adjournment year on the 12th day day of May, 2015 ), year before Lloyd E Malin, a Provincial Court Judge, into the death of Garrick ENG 7 (Name in Full) (Age) of Avenue, Edmonton, Alberta and the following findings were made: (Residence) Date and Time of Death: Place: January 9, 2009 at 6:00 hours Edmonton, Alberta Medical Cause of Death: ( cause of death means the medical cause of death according to the International Statistical Classification of Diseases, Injuries and Causes of Death as last revised by the International Conference assembled for that purpose and published by the World Health Organization The Fatality Inquiries Act, Section 1(d)). Undetermined - See Appendix "A" Manner of Death: ( manner of death means the mode or method of death whether natural, homicidal, suicidal, accidental, unclassifiable or undeterminable The Fatality Inquiries Act, Section 1(h)). Undeterminable

2 Report Page 2 of 8 Circumstances under which Death occurred: See Appendix "B" Recommendations for the prevention of similar deaths: See Appendix "C" DATED April 1, 2016, at Edmonton, Alberta. Original signed by Lloyd E Malin A Judge of the Provincial Court of Alberta

3 Report Page 3 of 8 Report to the Minister of Justice And Solicitor General Public Fatality Inquiry into the death of GARRICK ENG Appendix A Medical Cause of Death The cause of death of this child is undetermined. The child had a well-documented neurodevelopment disorder associated with seizures such that death could occur suddenly at any point in time. The autopsy could not specifically identify a seizure as being the terminal event ending in death. The autopsy did reveal the presence of focal areas of pneumonia. Pneumonia is a common life-ending event in many individuals with severe disabilities as did this child, but focal areas of pneumonia, as identified in the child s autopsy, can also be an everpresent part of his complex medical problems and its simple presence does not necessarily mean that pneumonia was the terminal event. Disconnecting a pulse oximeter and turning off its alarm (as happened here)( would not cause death in and of itself. It would, however, diminish the ability of the caregiver to know that the child was in distress and react appropriately. As well, simply covering the face of the child with a blanket (as happened here) would not be expected to cause death if the child s BiPAP breathing mask was still in place and properly functioning. If the mask was not properly in place it could create problems for the child but the seriousness of those problems could not be determined or assessed in the autopsy. If pressure were applied to the blanket over the child s face such that the child s airways were obstructed, the child could be smothered and could be a cause of death or a factor contributing to the child s death especially with a vulnerable child as was the case here. That said, there was no autopsy finding that the child had been smothered. In light of the several foregoing unmeasurable uncertainties, the cause of death of Garrick Eng is classified as undetermined.

4 Report Page 4 of 8 Report to the Minister of Justice And Solicitor General Public Fatality Inquiry into the death of GARRICK ENG Appendix B Circumstances Under Which Death Occurred Garrick Eng (the child or deceased ) was a 7 year old child with severe neurodevelopment and seizure disorders and he required 24 hour care. The child had the motor skills of a 2 month old infant, was a quadriplegic, had a seizure disorder and was totally dependent on others for all aspects of his care. Some of that care was provided by his parents but in the late evening and very early morning hours, the care was provided by a hired caregiver (the caregiver ). While sleeping, the child required the mechanical assistance with, and monitoring of, his breathing. That mechanical assistance assisted with his breathing and monitored his oxygen level and heart rate. The caregiver had many duties concerning the child during her shift on January 8-9, Foremost was the duty to stay awake and watch over the child to ensure that his breathing and other vital signs were within normal parameters; specifically, that his BiPAP oxygen mask was properly in place and that excess secretions were suctioned from his airway. Contrary to her duties and the requirement to stay awake throughout her shift, the caregiver decided to go to sleep sometime before 1:00-1:30 am. Because the noise of the pulse oximeter was annoying her and interrupting her sleep, the caregiver disconnected it from the child and effectively disabled the alarm system, the consequence of which was to no longer monitor the child s vital signs. As such, the monitoring system was no longer able to detect nor alert anyone of any impending medical issue or emergency concerning the child s breathing. Sometime around 1:30 am and while the caregiver was asleep, the child stopped breathing. When the caregiver awoke several hours later estimated between 5:00 and 6:00 am - she observed that the child was cold and blue and likely dead. She did not notify the child s father that the child was not breathing until the father was awake about 6:00 am. The child s mother - a trained nurse initiated CPR but to no avail. On the child s father s instruction, the caregiver called and shortly thereafter Edmonton Medical Services responded. Based on a record of patient-triggered breaths recorded by the BiPAP machine, the time of the child s death was estimated to have occurred around 1:40 am

5 Report Page 5 of 8 Report to the Minister of Justice And Solicitor General Public Fatality Inquiry into the death of GARRICK ENG Appendix C Recommendations for the Prevention of Similar Deaths Background Although Garrick Eng s medical cause of death could not be determined, it is almost certain that its prevention was impeded by the criminal acts of his caregiver in deliberately disconnecting his breathing assist and monitoring system coupled with her decision to go to sleep when she should have been observing Eng and providing care. The caregiver pleaded guilty to failing to provide Eng with the necessaries of life and mischief (by disconnecting, unplugging or otherwise tampering with a pulse oximeter), offences contrary to sections 215(2)(b) and 430(2), respectively, of the Criminal Code of Canada. The propensity or likelihood of a caregiver to deliberately commit one or more criminal acts that might lead to the death of his or her charge cannot be accurately determined or possibly, prevented short of refusing to engage someone with a related criminal record. Nevertheless, non-criminal but inadequate care could lead to a result as befell Eng. Such inadequacies could arise because of insufficient training or simple carelessness. Such inadequacies might be assessed through a thorough vetting of the caregiver and his or her references, training and experience. Past behavior is often the only and best determinative of future behavior. In her application for employment with the health services provider in 2003, the caregiver obtained a criminal record check, which revealed that she had no criminal record. No further check was required or obtained. Her reference letters were two years old and were from a landlord and restaurant employer. Additional reference checks disclosed her employment with another health care provider for whom she provided care to clients in their homes. A check with that employer revealed that...she doesn t realize what is significant... and the suggestion that she be placed...with easier clients...things can get missed. Unknown to her health services employer, The Edmonton Police Service did have in-house reports of encounters with the caregiver in a number of situations. The Edmonton Police Reporting and Occurrence System ( EPROS ) contained data concerning the caregiver. As at the time of her application for employment, that data referred to her involvement in two family

6 Report Page 6 of 8 disputes where the police were called, and an act of dishonesty where she lied to the police to protect her roommate from being arrested. Although she did not have a criminal record, EPROS notes that in 2002, she was excused from drug and obstruction charges by compliance with alternative measures. EPROS data for the years following her employment with the health services provider revealed a person who, in the opinion of those police with whom she interacted, was thought to have problems with alcohol and or drugs, was assaultive, argumentative, prone to mischief, uncooperative with authorities, mentally unstable, unpredictable and dishonest. A senior representative of the agency that hired her stated that had she known of the data in the EPROS, the caregiver would never have been hired. Through correspondence with Edmonton Police Service ( EPS ) officials and their counsel, it is clear that the EPS are not willing to reveal EPROS data citing privacy and other concerns; notably, the possibility of repercussive action for inaccurate or defamatory data. On a duly executed waiver by an applicant, the EPS (and the RCMP) will reveal certain data pertaining to the applicant as, for example: criminal convictions conditional and absolute discharges upcoming court appearances for outstanding criminal charges current court and/or prohibition orders current out of province outstanding warrants information obtained from police files in which the applicant was the subject of a criminal police investigation where charges were laid When the applicant will be responsible for the well-being of children or elderly or disabled persons, a vulnerable sector search will be conducted with the consent of the applicant. That search will confirm whether the applicant has received a pardon for a sex crime related conviction or whether a demonstrated pattern of behavior exists that could result in harm to a vulnerable person. The EPS and RCMP maintain the discretion to reveal information where charges were not laid in situations where a risk to public safety exists. The question of whether a risk to public safety exists is determined by the manager of the police information check unit in combination with the police service s legal department. EPS advises that the decision is based upon the relevancy, recentcy and demonstrated pattern of behavior. Occurrences which may be revealed may include calls for service/police attendance where charges do not arise. EPS reviews records for such behavior for the 10 years prior to the application of those records. In this case, no request was made of EPS or the RCMP (by either the caregiver or the agency that hired her) for the disclosure of information beyond the existence of a criminal record. It is not possible to know whether the EPS would have revealed some or all of the observations of the officers whose entries are summarized in the EPROS if EPS was aware of the caregiver s potential responsibilities with a person as vulnerable as Garrick Eng.

7 Report Page 7 of 8 A child intervention record ( IRC ) check or child welfare check is a review to determine whether an adult has an existing intervention record with the Department of Human Services (the Department ). Such a check could reveal whether the applicant may have caused a child to be in need of intervention as defined by the Child, Youth and Family Enhancement Act (Alberta) (the CYFEA ). The Inquiry was advised by correspondence that current Department regulations and policies require the completion of an IRC for an individual approved by the Department to provide direct services to children under the CYFEA, the Protection of Sexually Exploited Children Act or the Drug-Endangered Children Act. Although there is no legislated responsibility for the completion of IRCs for the general public, 60% of IRCs processed are for private individuals and organizations such as religious organizations, sports groups, community groups, school boards and other organizations that provide a range of services to vulnerable persons, both adults and children. An IRC would have been provided concerning Eng s caregiver had it been requested prior to her being hired although it would not have revealed any interventions. The Department s policy provides that IRCs are only to be provided to the individual who is the subject of the IRC although in some cases not detailed- an IRC can be requested by and provided to an agency such as We Care if the request was accompanied by a signed request from the potential caregiver, the subject of the IRC. That IRC will be provided directly to the potential caregiver and not to the agency so that it will be the agency s responsibility to collect it from the potential caregiver. A review of the testimony and materials made available at this Inquiry shows that in the years following her employment with the health services provider and prior to January 2009, the caregiver was observed or suspected of behavior contrary to the standards of a conscientious caregiver or the terms of her employment, as for example: poor charting and chart tampering sleeping on the job numerous times swearing on the job forgetting to administer medications several times not showing up for work being rough with patients not completing tasks including those with patient medication devices inappropriate discussions with patients alcohol consumption relative to her work shifts exhibiting poor judgment Some of these observations continued after January In a handful of situations, her health services employer took no action because the allegations could not be confirmed. She was dismissed for cause in June 2010 following allegations of her sleeping, swearing and drinking on the job. The health services provider and Department personnel were not aware of any complaints from Eng s parents concerning the caregiver. They testified that they were not certain about the lines of communication for the expression of such complaints or concerns.

8 Report Page 8 of 8 Recommendations 1. Persons (e.g. parents) who require a caregiver for a person in the vulnerable sector, and agencies and organizations that act as intermediaries in the placement of caregivers for persons in the vulnerable sector need to be encouraged to: a. conduct all available record checks which would include those currently available from EPS, the RCMP and the Department and its successors, b. ensure that EPS and the RCMP are aware of: i. the specific duties of the applicant caregiver, ii. the particular vulnerabilities of the person to be cared for, and iii. the character traits that would make the applicant caregiver unsuitable for care of the vulnerable person (as for example, alcohol or druginduced negative behavior, resistance to authority, volatility, emotional or mental instability), for the stated purpose of determining whether the applicant caregiver will pose a (public) safety risk to the vulnerable person, c. obtain employment, experience and character references and follow up and press for information relevant to the personal characteristics of the applicant that will confirm, or raise concerns regarding, the applicant caregiver s sufficient competence and responsibility, d. confirm the applicant caregiver s stated academic record and specific achievements (ie. degrees, certificates). Where in doubt or appearing marginal, conduct (at minimum) verbal enquiries of the applicant caregiver s professors and trainers. 2. Where the caregiver is employed by a health services provider, allegations and complaints concerning the caregiver s job performance in connection with any patient should be reviewed with the parents or guardians of the patient and remedial or steps and or sanctions should be undertaken and documented. 3. EPS (and their counterparts elsewhere in Alberta) and the RCMP should be encouraged to develop and publish policies that will identify the information needed to by them to disclose relevant police intervention and encounter data gathered by them concerning applicants who are intending to provide caregiver services to persons in the vulnerable sector.