It’s known among lawyers as the “capital punishment” of child protection proceedings.
But when an Ontario court must decide whether a child should be taken from their parents and placed up for adoption, there are no rules on which type of professional can offer an expert opinion.
That fact is at the heart of a December ruling in which a psychologist was found to have “intentionally misrepresented” her credentials since at least 2009, passing herself off as a clinical psychologist when she is only authorized to practise school psychology.
In the case, Nicole Walton-Allen submitted a “parenting capacity assessment” supporting the Halton Children’s Aid Society’s request that all five of a mother’s children be placed in extended care. Such an assessment typically addresses parents’ ability to meet the needs of their children and whether there are supports available; judges often rely on them when deciding the fate of a child.
She testified she had completed over 100 such reports since 1992. But the judge concluded that as school psychologist, she was not qualified to do the work.
This despite the fact that there are no clear rules that dictate who can do these assessments.
“Parenting capacity assessments are only being ordered by the court where the court requires reliable, expert opinion on complex psychological and social issues and where the stakes are very high — often the very continuation of the family unit is at issue,” Ontario Court Justice Penny Jones wrote in her December ruling.
The damning findings against Walton-Allen have prompted calls for the Ford government to launch an independent review. Advocates say such a review could also make much-needed recommendations on the qualifications, education and training necessary to complete a parenting capacity assessment, as well as to examine how much weight a judge should place on the report.
The Ministry of Children, Community and Social Services has said it is trying to determine the scope of Walton-Allen’s work “and determine the potential next steps,” but so far has not committed to launching an independent probe.
“The bottom line problem is: there is no criteria for who is a parenting capacity assessor. It’s unregulated,” said lawyer David Miller, treasurer of the Toronto chapter of the Ontario Association of Child Protection Lawyers.
He said that it’s mainly been the courts that have been setting the criteria on a case-by-case basis — such as Jones finding that a school psychologist should not be completing a parenting capacity assessment. Miller said mandatory rules and criteria are needed.
“These are very, very important reports,” said Queen’s University family law professor Nicholas Bala. The assessors are influential in court, but there’s a lack of training and resources, and no professional oversight body, he said, for reports that “effectively decide whether the parents are ever going to care for their children again.”
Bala sounded the alarm around the qualifications of assessors more than a decade ago, in a 2008 article published in the Canadian Journal of Family Law, written with Alan Leschied, psychologist and education professor at Western University.
Their article, which included a survey of judges, noted that a parenting capacity assessment is “among the most challenging forensic assessments that mental health professionals undertake.” At the time, they found just under half of assessments in child welfare cases were being conducted by PhD-level psychologists of any specialty. About 15 per cent were done by psychiatrists, and about 10 per cent done by social workers.
It’s unclear what the numbers look like today.
Professionals such as psychologists or social workers are regulated by their respective colleges. But as the authors of the article noted, none of the colleges “provide criteria specifying the qualifications for professionals to undertake forensic child welfare assessments, beyond the general ethical obligation to restrict service to areas that are consistent with prior education and clinical experience.”
Bala and Leschied recommended that the government establish an independent “centre of responsibility” with a mandate to develop standards for conducting assessments and set qualifications for assessors, along with monitoring their work and providing education and training.
“This expenditure of resources and energy should have significant benefits for the courts and the child welfare system, and ultimately for vulnerable children in the province,” the authors wrote.
The recommendation has never been acted on.
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The fact that these assessments have been variously described as “forensic” and “psychological” has raised the question as to whether any professional beyond a clinical psychologist or a psychiatrist — who can prescribe medication for mental disorders — should be doing them.
According to the College of Psychologists of Ontario, a psychologist authorized to practise in clinical psychology requires knowledge of, for example, abnormal psychology, personality differences, and evaluation of change, and must have the ability to perform a clinical assessment, communicate a diagnosis and come up with a treatment plan.
Bala, who believes psychiatrists and clinical psychologists should be conducting the assessments, said it’s most likely other professionals are doing them only in areas with fewer resources.
In the December case, Walton-Allen herself testified that social workers and mental health nurses also perform parenting capacity assessments, something the judge took issue with.
“It has not been my experience that a social worker, or mental health nurse, would ever be suggested let alone approved by the court to complete such an important assessment,” said Jones, who has been on the bench since 1991.
Jones also took issue with the fact that there is no rule at the College of Psychologists that only clinical psychologists can conduct parenting capacity assessments.
“I would urge the College of Psychologists of Ontario to review this policy in light of the recent miscarriages of justice that have resulted from unqualified expert opinion evidence being accepted by the court,” Jones wrote in her ruling.
“The College of Psychologists of Ontario is a self-regulating body and has the ability to prescribe the qualifications and experience a member would have to possess before performing a parenting capacity assessment.”
The college’s registrar, Rick Morris, told the Star it is not the college’s practice to set specific qualifications necessary to perform a particular type of assessment. The college does provide advice to psychologists conducting parenting capacity assessments — but nothing mandatory.
The advice, available on the college’s website, says psychologists doing assessments “are likely to require specialized knowledge” of areas including adult mental health, child and adolescent development, and expert court testimony.
The Ontario College of Social Workers and Social Service Workers told the Star that parenting capacity assessments fall within the scope of the practice of social work — though it has no specific practice guidelines for conducting such an assessment.
“Many college members are also highly trained in the areas of child protection and child welfare, mental health and addictions, and psychotherapy; indeed, social workers are highly represented in these areas of practice,” a spokesperson for the college said.
The College of Nurses said nothing restricts a mental health nurse (or other type of nurse) from conducting a parenting capacity assessment.
“Whether these assessments are accepted in a child protection proceeding is a separate determination and would require a legal interpretation,” a college spokesperson said.
Jacques Gallant is a Toronto-based reporter covering legal affairs. Follow him on Twitter: @JacquesGallant