JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [1] JANUARY 10, 2014 PROCEEDINGS CONTINUED FROM JANUARY 7, 2014 THE CLERK: Court is now open. THE COURT: Morning everyone on the screen. UNIDENTIFIED PERSON: Good morning, Your Honour. UNIDENTIFIED PERSON: Good morning, Your Honour. THE COURT: It's a funny set up. You're, you're jumping around a little bit but I can see everybody. Can you see me and hear me? UNIDENTIFIED PERSON: Yes. UNIDENTIFIED PERSON: Yes. UNIDENTIFIED PERSON: Yes. UNIDENTIFIED PERSON: Yeah. THE COURT: All right. Good. Thank you. MS. MURRAY: Good morning, Your Honour. THE COURT: Good morning. MS. MURRAY: Perhaps I'll just note that Mr. Balfour had emailed me yesterday asking just for directions on what time and where we were going to be. So I did give him those directions for 9:30 this morning, here. THE COURT: Okay. Well, its 9:28, I'll recess for two minutes and we'll commence at 9:30, okay. MS. MURRAY: Okay. Thank you. THE COURT: Thank you. (BRIEF RECESS) THE COURT: So, Madam Clerk, what time is it now? THE CLERK: 9:33. THE COURT: All right. Ms. Spillett and Mr. Balfour were paged, is that right? UNIDENTIFIED PERSON: Yeah. THE COURT: Okay. Well, I'm going to proceed. JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [2] This morning, I'm setting the parameters of what's been referred to as phase 2 of the inquest into the death of Brian Sinclair. Brian Sinclair died after waiting 34 hours at the Health Science Centre emergency department to be treated for a non-life threatening illness. The Chief Medical Examiner mandated that an inquest be called. So five years on, we recently completed phase 1 of the inquest into the death of Brian Sinclair. Now, I'm able to determine the circumstances under which Mr. Sinclair's death occurred. Phase 2 of the inquest tasks me with determining what, if anything, can be done to present, prevent similar deaths from occurring in the future. With regard to, but not limited to the following: a) reasons for delays in treating patients presenting in emergency departments of the WRHA, the Winnipeg Regional Health Authority, hospitals and b) measures necessary to reduce the delays in treating patients in emergency departments. Two days ago, I met with all parties with standing, except for counsel for the physicians who is not participating in this phase, for the purpose of discussion on what counsel believes is contemplated by phase 2. At the standing hearing in 2009, counsel for the family of Brian Sinclair, Mr. Zbogar, stated this: At the core of this inquest must be the issue of Brian Sinclair's marginalization as an Aboriginal, homeless, mentally and physically disabled man, unable to advocate for himself. I must say that the characterisation of Mr. Sinclair as homeless, by even his family's counsel, was JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [3] proven to be an entirely incorrect assertion. It is concerning, one wonders from where the characterisation of homelessness sprang. Mr. Sinclair certainly wasn't homeless. He lived in an apartment arranged by a team at the Health Science Centre after his release from their hospital, implemented by a Winnipeg Regional Health Authority home care. But, to the present, at our recent meeting two days ago, the family counsel outlined the issues they feel are in the forefront. And those include patient safety, the triage process, assumptions about race, poverty, disability, substance abuse. What they characterise as siloization (sic), being task focused, tunnel vision, and Brian Sinclair's home care prior to his attendance and the quality thereof, prior to his attendance at the Health Science Centre. The family wishes to hear evidence of other examples, models of emergency department care. And they also wish to hear from the Manitoba, Manitoba Metis Federation, either via a written submission or in person. Aboriginal Legal Services of Toronto, in concurrence with the family counsel, the Assembly of Manitoba Chief, and Ka Ni Kanichihk, wants to focus on systemic issues for Aboriginal persons, with an eye also to poor people, substance abuse people, people with disabilities. At a standing hearing before Judge Wyant in 2009, the Aboriginal Legal Services of Toronto submitted that because of systemic barriers that Indigenous people face in receiving services in an institutional setting, in general, they asked for standing to assist the court in how to create best practices. Most recently, the Aboriginal Law Society of Toronto submits that the inquest, now, must answer the communities concern about a representative from that JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [4] community; in other words, Brian Sinclair. They outlined, as they have during phase 1 of the inquest, the disconnect between education around these issues, and implementation during medical treatment. They want the inquest to examine the social determinants of health through the lens of their proposed witness list. They also had proposed a panel discussion, in order for their witnesses to discuss these issues. Ultimately, they urged the court to hear from independent experts outside of the ambit of the Winnipeg Regional Health Authority. From the Regional Health Authority's counsel's perspective, counsel has maintained that there is a wealth of material focusing on all the issues of Aboriginal health, including plans for the future, provided already in written form and filed as exhibits in this, in this inquest. I've reviewed the proposed potential witness list of the Aboriginal Legal Services of Toronto, and I entirely concur that part of my mandate is to make recommendations about best practices for ongoing training for frontline staff to ensure that they meet the needs of all their diverse patients, including, of course, Indigenous patients. I must say, a panel discussion is not appropriate here. Witnesses may give expert opinions, but those opinions need to be subject to examination and crossexamination. This is not the forum for any kind of panel discussion. I do, however, want to hear evidence from a witness of inquest counsel's choosing to give expert evidence outside of the context of the WRHA about best practices for providing appropriate health care in emergency departments for Indigenous people. If that, if that same witness can discuss the same issue from the perspective of the diverse groups of people presenting in JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [5] an emergency department, then that should occur. If a second witness is required for the next, for the, for the second topic, the court wishes to hear from a second witness. As I've said on a previous occasion, but it's very important to reiterate it, an inquest is not the same as an inquiry. A commission of inquiry is not a sitting court. I preside over this inquest as a judge of the provincial court. An inquiry is not a branch of the judiciary nor is it a sitting of the court. It's not necessarily presided over by a judge, though it can be. The terms of reference of an inquiry are set out by a government Order in Council. An inquiry, by its mandate and its nature, is broad in both scope and subject matter. An inquest mandate is set by the Chief Medical Examiner's directive, which I previously outlined. In fact, Dr. Balachandra, the current Chief Medical Examiner, testified at this inquest and during his testimony, asked rhetorical questions about Brian, how Brian Sinclair ended up as he was, in other words, he asked questions about the social determinants of Brian Sinclair's health. He referred to them as social issues and stressed that it would take a very long time to examine these issues and they were not to be addressed at this inquest. In other words, he was attempting to clarify or refine his mandate, understanding that the social determinants of Brian Sinclair's health were a factor that played a part in how and why he attended to the emergency department that day. But they were not the subject matter of his directive. As I said in March of 2010, I have no intention of turning this inquest into a de facto inquiry. I have, on a number of occasions, been directed by counsel to comments made by my colleague, Judge Wyant, during the second standing hearing in 2009, prior to Judge Wyant's departure from this inquest. It's now opportune to address JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [6] them. Judge Wyant, in closing, at the second standing hearing said words to the effect of questions of race, Brian Sinclair's treatment as an Aboriginal person, questions of race, poverty, mental health, health, economic status, all of these are "issues that sort of transcend" and are woven within the circumstances of his death. And it's important that these issues play a significant role as we look at preventing similar deaths in the future, not only for Aboriginal people but for people of every race, regardless of their economic status, health status, or otherwise. That's what Judge Wyant had iterated. I'm not certain how Judge Wyant had intended to explore these issues. Obviously, each judge has his or her own discretion to decide exactly what the mandate means. To be clear, the reasons why people appear at emergency departments are myriad. Included in these are the social determinants of health, such as race, poverty, disability, substance abuse. The analysis of why these factors play into a person's need and use for emergency department medical care is an important and necessary analysis. But it is far beyond the scope of my mandate. My mandate is not that broad. The reasons for delay that occur once a person presents at an emergency department, and measures to reduce that delay, are the subject matter of this inquest. Having said that, it is clear that incorrect assumptions were made about Brian Sinclair by a number of frontline staff. Proposed witnesses from the WRHA are satisfactory. All of the pertinent issues identified by the family counsel and the Aboriginal Legal Services of Toronto can be effectively canvassed through examination and cross-examination. My only concern is duplication and at present that does not seem to be an issue. Patient safety will be covered, Aboriginal health will be covered, JANUARY 10, 2014 PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 [7] patient flow will be examined, including an analysis of national trends. I would, however, also like to hear an outside voice to give expert and practical evidence on overcrowding, flow through, and delay. Inquest counsel can make that decision as to who that is. A doctor has been suggested. I leave that with counsel. The nurses proposed to be called, two, perhaps three, will discuss working conditions. Again, my concerns are duplication. It appears that that will not occur. On behalf of the Aboriginal Law Society of Toronto, the family counsel, the Assembly of Manitoba Chiefs and Ka Ni Kanichihk, I would also ask inquest counsel to present a witness to give practical assistance about best practices for Aboriginal health at emergency departments. And if that witness cannot speak to other people's presenting at the emergency departments, to call a second witness to discuss best practices, if possible. If available, I would ask to hear from a witness outside the ambit of the WRHA to discuss models of managing delay in emergency departments, as requested by the counsel at the meeting. We have eight court days in February and the week of June 9th through 13th of this year. And I would expect that that would be ample time to complete this evidence and for counsel to make recommendations to the court, so I thank everyone for their patience. And when is this court adjourned to? MS. MURRAY: To February 18th, Your Honour. THE COURT: All right. Thank you, counsel, for your input. I much appreciate it. So we'll adjourn. Thank you. THE CLERK: All rise. This court is now closed. (PROCEEDINGS ADJOURNED TO FEBRUARY 18, 2014) JANUARY 10, 2014 [8] CERTIFICATE OF TRANSCRIPT I hereby certify the foregoing pages of printed matter, numbered 1 to 7, are a true and accurate transcript of the proceedings, transcribed by me to the best of my skill and ability. ___________________________________ KRYSTLE MUSCOBY COURT TRANSCRIBER THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: "THE FATALITY INQUIRIES ACT" AND IN THE MATTER OF: BRIAN SINCLAIR, Deceased VOLUME 32 TRANSCRIPT Inquiries Act into OF the PROCEEDINGS death of under BRIAN The LLOYD Fatality SINCLAIR, before The Honourable Judge Preston, held at the Law Courts Complex, 408 York Avenue, in the City of Winnipeg, Province of Manitoba, on the 10th day of January, 2014. APPEARANCES: MR. D. FRAYER, Q.C., Inquest Counsel MS. M. MURRAY, Inquest Co-Counsel MR. B. OLSON, Q.C., and MR. R. OLSON, for Winnipeg Regional Health Authority MR. M. TRACHTENBERG and MR. V. ZBOGAR, for the Sinclair Family MR. T. CAMPBELL and MR. T. KOCHANSKI, for Drs. Araneda, Minish, Perez, and Waters MR. G. SMORANG, Q.C., and MS. S. CARSON, for Manitoba Nurses’ Union MS. E. HILL and MS. C. BIG CANOE, for Aboriginal Legal Services of Toronto