A Trustworthy Medical Professional

 The Law Society takes the position that Dr. Phillip Klassen should perform the assessment. Dr. Klassen is a forensic psychiatrist with significant experience conducting assessments under s. 39 of the Act. The Law Society has also put forward two other forensic psychiatrists as potential assessors. From its perspective, a forensic subspecialty is important because of its specific focus on the nexus between law and psychiatry, including within the context of professional regulation.

The Lawyer is a Cree woman and a member of Constance Lake First Nation, Treaty No. 9. She was called to the Ontario bar in 2005. She has a Masters of Law in Indigenous Peoples Law and Policy and studied under the United Nations Special Rapporteur on the Rights of Indigenous Peoples. She is also a nurse. The majority of both her nursing career and her legal career have been spent working for and with First Nations individuals, governments, and organizations.

The Lawyer does not wish to be examined by Dr. Klassen. She takes the position that someone with a demonstrated understanding and practice of cultural safety towards Indigenous persons should be appointed to conduct the assessment. Apparently, there are no forensic psychiatrists who, in the Lawyer’s view, meet these criteria.’

The Lawyer proposes that the assessment should be conducted by Dr. Kathryn Macdonald, who is a psychiatrist without a forensics subspecialty but who has a demonstrated commitment to working with First Nations individuals. The Lawyer takes the position that an order mandating Dr. Macdonald to conduct the psychiatric assessment will minimize the potential harm of such an order by prioritizing cultural competency and cultural safety. Counsel for the Lawyer has advised us that Dr. Macdonald feels able to conduct the required assessment.

We have no doubt that a forensic psychiatrist is best qualified to perform the required independent assessment, and that as a forensic psychiatrist with considerable experience in conducting assessments in occupational matters, Dr. Klassen is eminently qualified to perform it. We do not accept the Lawyer’s suggestion that Dr. Klassen is unable to perform his work in a manner that is independent, trauma-informed and culturally safe. Dr. Klassen is better qualified than Dr. Macdonald to perform the forensic psychiatric assessment and deliver the medico-legal report required in this case.

However, the Lawyer’s treating psychiatrist has recently opined that it would be stressful for her to submit to a capacity assessment by someone she has not consented to being examined by. This, in his opinion, is related to her lack of trust in the Law Society and by extension anyone that would be put forth by them to perform the assessment.

The tribunal notes the inherently intrusive nature of the assessment

the Lawyer appears genuinely uncomfortable submitting to an assessment by Dr. Klassen. She has expressed her discomfort in a variety of ways, among them by “tweeting” derogatory comments about Dr. Klassen’s independence and threats to engage in regulatory complaints and litigation against him if he is mandated to assess her. These public attacks on Dr. Klassen have not improved the situation. They also have not disqualified Dr. Klassen for the task.

Result

We order that Dr. Macdonald be entrusted with performing an independent forensic psychiatric assessment of the Lawyer. We acknowledge that Dr. Macdonald does not have a forensics subspecialty. Accordingly, should the Law Society take the position that Dr. Macdonald’s eventual report is not adequate or sufficiently independent for its purposes, it may bring a motion for such further assessment as it may require. The Law Society may also retain Dr. Klassen or another expert to review/interpret Dr. Macdonald’s report.

Law Times reported on issues with earlier tweets of the attorney. (Mike Frisch)