Health Committee on Nov. 16th, 2010

[The Chair, Conservative, Joy Smith]

Good morning, everybody, and welcome to the health committee.

We have had a great morning with our subcommittee, and now we are going into the committee. The couple of minutes of delay was due to having the cameras set up. Our cameramen were just doing their best to get here right on time, and they did a phenomenal job, so they are here.

Pursuant to Standing Order 108(2), we are conducting an administrative review of Assisted Human Reproduction Canada.

We have two panels today. For our first panel our witnesses are, as individuals, Barbara Slater, Professor Françoise Baylis, and Irene Ryll. Welcome to all.

I will give you five minutes each, and we will begin with Françoise.

[Dr. Françoise Baylis, Professor, As an Individual]

Thank you.

I resigned from the board of directors of Assisted Human Reproduction Canada on March 18 of this year. I did so with a heavy heart, having given the matter very serious consideration. I resigned because due to the actions of the president and others, I was not able to fulfill the responsibilities outlined in the act regarding the management of the agency.

The act stipulates that:

The board of directors is responsible for the overall management of the Agency, including

(a) the provision of advice to the Minister on assisted human reproduction and other matters to which this Act applies, or on any matter referred to the Agency by the Minister;

(b) the approval of the Agency's goals and operational policies;

(c) the approval of the Agency's budget; and

(d) the evaluation of the Agency's performance.

Further, section 32 stipulates that responsibilities in (a), (b) and (c) cannot be delegated.

Shortly after I resigned, Barbara Slater resigned on March 31. Next, Irene Ryll resigned on May 30. As you know, we have not been replaced.

The communications plan developed by the agency in response to our resignations includes the following statement:

These resignations will not affect the integrity of the Board. The Board will carry out its core responsibilities and mandate.

In my view, this statement is false. Since its inception, the board has lost its legal expert, its ethics expert, its policy expert, and its patient expert--and yet it's business as usual? Three of these four members left as a matter of principle. Clearly, the integrity of the board has been compromised, and there is good reason to doubt its ability to carry out its core responsibilities and mandate.

I will address two issues in my opening remarks--failure of the agency to effectively promote and defend the principles of the act, and failure of the board to act in accordance with board values.

Further, in question period, I would be pleased to answer questions about the effects on silencing board members, the contract on altruistic donation, research involving embryos in pregnant women, and communications with the Prime Minister's Office.

First, through various acts of omission and commission, the agency either failed to effectively promote the principles outlined in the act or appeared to actively undermine these principles. Two examples are provided.

The president proposed hosting an international forum on cross-border reproductive care. Some board members suggested that this might not be a good idea, as this could reasonably be interpreted as promoting reproductive travel as a way to avoid legislative constraints that the agency should be upholding. In response, the president insisted that the agency could not stop people from travelling. In further discussion, it was also made plain that the forum would not examine the ethics of this practice. The focus would be on health and safety.

Thereafter, there was no acknowledgement of the ways in which health and safety issues are inextricably linked with ethics. There were media criticisms of the decision to host this meeting. No budget line was ever approved for this meeting. Indeed, according to my records, the board did not approve a budget for the year 2008-09.

To this day, I do not know what the meeting cost, though I believe expenses are buried in several categories like general travel, consulting, etc., and that they may have been spread over two fiscal years. I would encourage you to pay particular attention to this when you receive the audit you requested at your June meeting, and I would ask you to make sure that it is, in fact, an audit and not merely an audited financial statement.

Second, the agency issued a contract to study the feasibility of altruistic gamete donation. Some board members perceived the apparent direction of the contract as contrary to the legislation. The contract was defended with such statements as--quote--“we know this aspect of the legislation isn't working”.

The implication of the statement seemed to be that the agency needed information to support a change in legislation. In response, one board member made the point that the agency's job was to ensure that the legislation was implemented effectively, not to research ways and means to change the legislation. The legislation might need to be changed, but that would be the responsibility of Health Canada. Indeed, previously, Health Canada had tendered a contract on this issue.

There were also concerns about the choice of “expert consultant” for the contract, a physician who had made public statements against altruistic donations with references to the “thou shalt not pay” rule, and he had also said that we need a “more rational plan” and at the very least we should pay donors for lost work time.

As well, there were concerns about conflict of interest. The physician was a lead author on an earlier CFAS document lobbying Health Canada to fund such contract research, and he was a member of the science advisory panel of Assisted Human Reproduction Canada.

My second broad point has to do with the failure of the board to act in accordance with board values.

I don't expect I will get through that....

[The Chair, Conservative, Joy Smith]

Sorry, Ms. Baylis, your time is up, but I'm going to be a little flexible here and give you one more minute.

[Dr. Françoise Baylis]

I'll read as far as I can and then I'll stop.

The board practises excessive unnecessary secrecy, which undermines public trust. At the second board meeting, board members were asked to approve the minutes from the first meeting. The first minutes were thin. There was almost no difference between the agenda for the meeting and the minutes of the meeting. When a board member requested that more details be included in the minutes, there was resistance to this idea from the president, supported by some board members, on the grounds that it would be risky for the organization to include too much detail.

Second, despite a decision made in March 2007 that board minutes would be publicly available, they have never been publicly available.

On inclusiveness, let me say that for reasons that are unclear, the president worked to build strategic alliances with the providers of technologies and not the users of technologies. This was done over the objections of board members.

[The Chair, Conservative, Joy Smith]

Thank you, Ms. Baylis.

We'll now go to Ms. Barbara Slater.

[Barbara Slater, As an Individual]

Thank you for the invitation to appear before your committee today.

I feel it necessary to give you a little of my background so that you will know that I did not resign for what may be characterized as petty personal reasons. All of the board members of AHRC brought with them particular skills and expertise. I brought to the board an in-depth knowledge and understanding of policy, governmental processes, legislation, as well as how governmental agencies, such as AHRC, are set up and how they function. I have this knowledge and perspective from work that I have done provincially for the Ontario government, nationally for Health Canada, the Public Health Agency of Canada, as a chair and member of several federal, provincial, territorial committee and task forces, as well as work that I am doing internationally for the OECD.

I share the concerns detailed by Françoise and want to add to this list of concerns. I want to make some brief comments regarding inadequate disclosure about budget and potentially not getting value for taxpayers' money that was spent, blocking substantive input by board members into regulations, and persistent resistance to input from board members on matters of substance and process.

I may not get to the second two topics, so I would welcome questions for those.

In terms of the budget, requests for information about the budget consistently met with resistance from the president. When information was finally presented, it was in a format that was not customary or sufficiently detailed. The board never reviewed a full budget for 2008 and 2009. When the budget for 2009-10 was initially presented, it was as a slide deck, with just some total numbers included. Repeated requests finally led to a presentation of some more detailed information, but even then there were parts of the budget that were less than transparent.

For example, there was continued resistance to providing information about the cost of governance. The cost was buried in a number of categories so that it was impossible to know what the board costs were as a percentage of the total budget for the agency. Some board members had concerns about whether some expenditures were inappropriate or the result of inappropriate processes.

Here are some examples. Françoise has mentioned the contract on the feasibility of altruistic gamete donation, so I won't go into that too much. It was seen as undermining the legislation that the board was supposed to be upholding, which was section 7. There was inaccurate information in the statement of work, and the rationale for AHRC to do the project was not clear. When concerns were raised about this, there was an attempt to suggest that the contract was with the university and not the individual physician. The statement of work was later revised, and other questions were never answered.

The agency also contracted for individuals to provide HR consulting and other services at the same time that the agency had contracts with Health Canada to provide the same services. This was at a time when the agency had only a handful of people on staff.

The original 2009-10 budget had an amount allocated for consultants of $368,000, which board members were told was for three consulting contracts. The figure was questioned by a board member. In the revised budget, at a teleconference, the allocation for consultants was changed to $1,722,300 plus other professional services, which was another $500,000 for another consultant to set up a health registry. So it's quite a discrepancy between $368,000 originally and over $2 million. Even then there were discrepancies in the budget.

The president's travel patterns to Vancouver appear to map onto personal interests more so than to professional obligations. According to information available under proactive disclosure on the AHRC website, the president spent a lot of time in the Vancouver office over holidays and long weekends. As of June 2010, nine of the twenty posted dates for work in the Vancouver office have included holidays.

Next, with regard to blocking substantive input by board members into regulations, contradictory statements were made about how board members could or could not have input into regulatory development.

[The Chair, Conservative, Joy Smith]

Ms. Slater, your time is up, but I will extend it for one more minute.

[Barbara Slater]

Thank you.

On the one hand, the board was repeatedly reminded by the president that regulatory development was the purview of Health Canada. On the other hand, board members were told that they were in a unique position to have an impact on regulatory development because they had privileged access to information in the formative stages.

There was also confusion about the scope of the board’s work, owing to the fact that the agency undertook several initiatives clearly aimed at having an impact on policy, like the international forum on cross-border reproductive care, and the CFAS SOCG meeting on elective single embryo transfer.

Some board members repeatedly asked for clarification regarding the correct process by means of which the board could provide informed, timely, effective input into Health Canada on regulatory development, but no clear process was ever developed.

[The Chair, Conservative, Joy Smith]

Thank you very much.

I will now go to Ms. Ryll.

[Irene Ryll, As an Individual]

Thank you for inviting me to appear before your committee today.

In previous appearances before this committee, in previous years, my testimony focused on my experience as a patient and a parent of children conceived through reproductive technologies. We shared our private lives with this committee in the hopes that legislation would help and improve for those who came after us. There was no personal gain at that point--or at this point--in any of my efforts.

I felt strongly that it was my duty as a Canadian to share concerns with our federal government and that this was the process and the place that would ensure protections for the health and safety of individuals who use these technologies and the children who are born from them. This is clearly stated as a first principle in the act.

I want to tell you how deeply honoured I was when I was named to the board. I was prepared to undertake these duties entrusted to me with great care. After the resignations of Françoise and Barbara, I did my best to continue try to fulfill my duty. However, it became evident that I was prevented from doing so and therefore had to resign.

As a GIC appointee, we have a duty and public responsibility to ensure responsible management, ethical conduct, and to hold a position of trust to Canadians. I could no longer assure myself of these responsibilities. In my opinion, this board was broken and managed by the president.

I copied my letter of resignation to various MPs, government officials, and the board. You have a copy of my resignation with the individuals' names.

I also included the following statement in my cover letter:

Resigning from this Board has been one of the hardest decisions I have ever made however I felt I had no choice and could not continue serving the Canadian public on a board I have lost trust in.

To my surprise, no one in government wanted to discuss my reasons for resigning. I wanted to share my concerns so that things would be better for whoever replaced me.

Together with Françoise and Barbara, we had asked the Prime Minister's Office for an exit interview. You have a copy of that letter as well. No one in that office was motivated by our resignations to find out what had gone wrong.

Infertility affects approximately 6% to 10% of the population, and that translates into hundreds of thousands of individuals. This is an area that will affect many people in the future, and this is an area that is really important.

I want to add a few comments to what you've already heard from Françoise and Barbara.

On disrespectful engagement by the president with board members and others, there were a number of board discussions that were less than cordial. These included discussions about the need to engage in effective outreach to persons experiencing infertility; discussions of overall budget and specific budget lines; discussions of the organizational chart in order to get clarity on reporting relationships and accountability between the president and Health Canada; discussions of revisions to the tri-council policy statement and one board member's request to deal with the issue of research involving women; discussions of job descriptions and accountability profiles of board members; and discussions about posting minutes on the website for the public.

In addition to dismissive and negative statements directed by the president to board members who raised these topics for discussion, there was negative body language, eye-rolling, impatience, raised tone of voice, and hand-waving. This made some board members feel attacked for asking questions or asking for clarification, and it contributed to an atmosphere of judgment and mistrust. A number of board members were mostly silent during meetings.

On occasion the president would talk to one board member to find out information about another and make disparaging comments about one board member to another board member. As well, derogatory remarks were made by the president to the board members about stakeholders--the users of the technologies. There were inappropriate, repeated attempts to stop board members from sharing their personal and professional views about AHR matters.

All board members, having signed a confidentiality agreement, understood and accepted that matters discussed during board meetings had to remain confidential. However, beyond this there were suggestions by the president and the chair to the effect that board members must also be silent on all matters regarding AHR.

This practice led one board member to formally request clear guidelines and guidance as to what members were or were not allowed to say. That resulted in draft policies on public positioning and participation in policy debates, media relations, professional publications and speeches, and responding to questions from stakeholders.

In discussions about these draft policies, there were efforts to intimidate board members and suggestions that board members must not do “X”. When asked by a board member to put this advice in writing, there was a clear unwillingness to do so, because one “cannot say that...at most one can provide legal advice that this would not be wise”.

At the time the board member who raised this issue resigned from the agency, it was 10 months after seeking clear advice on what board members were or were not allowed to discuss. There were no policies in place at that time.

[The Chair, Conservative, Joy Smith]

Ms. Ryll, your time is up, but I will give you the same extra minute.

[Irene Ryll]

Thank you.

As a parent of children conceived through assisted reproductive technologies who believes strongly in the legislation and all of the good that was to come of it, I am devastated to have been a witness to what should have been an organization that, according to the board values, put the principles and the public interest above all others in managing its programs, responsibilities, and activities.

The three of us have several suggestions as to how to improve the process for the future. There are four of them, and I will very quickly state them.

Number one: provide the president of the agency with a mentor and proper oversight.

Number two: provide all board members with proper training that is contentful and consistent so they understand their legal obligations and are properly empowered to do their job.

Number three: make sure that board members have access to independent legal advice so that they can access it as needed. The agency had legal advice, the board members did not.

And number four: require board members to sign off on annual, perhaps even quarterly, budgets.

[The Chair, Conservative, Joy Smith]

Thank you.

Or were you finished?

[Irene Ryll]

I have one last statement.

[The Chair, Conservative, Joy Smith]

Okay, go ahead.

[Irene Ryll]

How will this experience encourage everyday Canadians to be compelled to share, be involved, and care enough about issues to take the risk of exposing themselves and their families and the--

[The Chair, Conservative, Joy Smith]

I'm sorry, I have to go to the first round. Anything that you want to say, you can add those when they ask you questions.

[Irene Ryll]

Thank you.

[The Chair, Conservative, Joy Smith]

We will do the first round, seven minutes of questions and answers, beginning with Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you very much.

Thank you for being here. Let me get one thing out of the way. It has been our experience on other committees where people who worked for the government before, or are working for the government currently, have been approached by government or government lawyers to be careful when they testify before a particular committee.

I want to ask you whether that has been the case in your situation or not.

[Dr. Françoise Baylis]

I have not been approached by anyone, but I have been constantly asking questions as to what I need to do to stay within the bounds of the law with respect to the confidentiality agreement. I have no interest in doing anything that's wrong, but no, I have not been approached by anyone.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

To Ms. Ryll, you made some good suggestions at the end, but they don’t really go to the mismanagement that you talk about or the financial irregularities or the ethical lapses or, in fact, deliberate undermining of the legislation itself or the spirit of the legislation.

Would you suggest that in fact an independent investigation by a third party in the nature of an inquiry would perhaps put to rest some of these issues and clarify these issues and make some recommendations--in addition to the ones that Ms. Ryll made--as to what needs to be done?

All three of you can answer that question. You have given me so much information, I don’t even know where to begin. Somebody from the outside actually needs to take a look at all of this. Would you agree or disagree?

[Irene Ryll]

I would agree, and I would agree because when you have someone who is independent outside of the organization, they will look at this and they will investigate if there was any wrongdoing or if there was not. To me, that would be transparent, and that's what this government stands behind, in my understanding.

[Dr. Françoise Baylis]

I would encourage that as well. I do know that the agency has recently contracted out some kind of oversight or review or something of the agency by a company called CloseReach, and that's because they contacted me to ask me to participate in a series of questions about the agency--its effectiveness, etc.

At the time I was approached, I raised concerns prior to agreeing to participate. I specifically asked who the other participants would be. I specifically asked whether the other people who had resigned would be invited to participate. The answer I got was no.

I asked whether, if I was the only person who had resigned who was participating, that meant that only one current board member would be participating. The answer I was given by the company was no, there would be at least three board members who were currently sitting who would be participating.

I then asked if other stakeholders who might have a critical perspective would be participating. The response I was given there again raised some concerns for me.

I mention this because I anticipate that the findings of that survey, product, whatever, will soon become public, as I anticipate that it was in part done in order to be able to address the kinds of concerns that we're raising.

So I would certainly like something to be independent and not funded by AHRC that looks at the functioning of the agency and looks at the documentation. That documentation should include whatever e-mails are available. A lot of effort was made to ensure that correspondence did not happen in print. There were phone calls so that nothing would be available. I would encourage you to look for those e-mails. They may be coming from different sources, not necessarily all coming from the agency.

Thank you.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Ms. Slater.