Imagine if the government could access your private medical records without telling you and then use the information against you. Unthinkable, right?
Until very recently that was the law when it came to child protection — the province’s Director of Child Protection and social workers had the authority to obtain private medical information about parents, without their knowledge or consent, and then use that information to take their children into care.
A B.C. mother of three brought the case to court after she found out that a social worker had — without asking her — requested all “medical history/reports” and “familial psychiatric history” from her local hospital and a medical clinic. The records the hospital provided included information from a time several years before she even became a mother. She had a personal history of trauma, mental health struggles and substance use, the court documents show. Two of her children were temporarily removed from her care and the third was born while this was happening.
The medical clinic informed the mother, who is not Indigenous, about the request for records and asked if she had given consent to disclose the information. She had not.
The B.C. Court of Appeal struck down the Child, Family and Community Service Act provision allowing this practice this week, calling it unconstitutional, but gave the government a year to fix it.
Appeal court judge Joyce DeWitt-Van Oosten said in her decision that the interference with privacy is significant and would allow the director to “reach into an intensely private sphere of an individual’s personal existence and take hold of information that can reveal highly intimate details about them and, potentially, their family members.”
The types of private information that could be revealed include a person’s medical history, when and how often they required treatment, circumstances such as childhood trauma that led to a need for treatment, and other mental health information, DeWitt-Van Oosten wrote. All three appeal court judges on the case agreed with the decision.
“This is a significant decision that recognizes this legislation goes too far in allowing the government to obtain highly personal intimate information about parents and families, without safeguards such as notice to the individual,” said Maegen Giltrow, pro bono counsel for the B.C. Civil Liberties Association, which acted as an intervenor in the case. “Importantly, the Court of Appeal recognized that these intrusions are happening in the child protection context, where the information gets used by the state in decisions with far-reaching impacts on parents and families.”
The provision violates a person’s right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, the Appeal Court found. Furthermore, the private information could lead to children being removed from their families, which can cause significant distress.
“Yesterday’s win shows that the court recognizes the power imbalance between the state and caregivers, and that meaningful limits must be placed on MCFD’s access to personal information,” said Bety Tesfay, staff lawyer at West Coast LEAF, who intervened in this case. “This is especially important in the context of a family policing system that disproportionately affects Indigenous families and parents with disabilities.”
Everyone deserves the right to privacy about their medical records. As the judge in this case notes, the mother said she would not feel safe speaking to healthcare providers in future. The ability to trust a healthcare provider to care for you and to keep your concerns private is imperative. If that trust isn’t there, a person may not seek help when they need it, which is the absolute opposite of what a vulnerable mother with three young children should do.
The Child, Family and Community Service Act provision allowing access to medical records, as written, doesn’t “appropriately balance the state’s interest in protecting children from harm with the significant impact of the provision on Charter-protected privacy interests,” the judge wrote. When privacy is outweighed by other societal claims, like danger to children, “there must be clear rules setting forth the conditions in which it can be violated,” the decision says.
Clearly, the rules must be rewritten in such a way that parents’ privacy is protected at the same time children are kept safe. The government has a year to do so.
Tracy Sherlock is a freelance journalist who writes about education and social issues. Read her blog or email her [email protected]
