Privacy - What Privacy - Medical Records Gone Awry

Below is a Letter to Government sent several years ago at the outset of development of a medical record system in British Columbia - my worst concerns have come true. The data collected is considered the property of the government as opposed to being the property of the patient. People have no control over medical records, if you ask to have data removed they refuse. The records your family doctor keeps are electronic now, so what the doctor and perhaps one other person use to see - all medical personnel see now - what happened to patient doctor confidentiality. There are no easy means to opt out, you should have been requested to opt in. This is a part of a general erosion of privacy and liberty in British Columbia and Canada generally - we need to be alert and insist that our private lives remain private as we wish them to be.  

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The advantages associated with the development of centralized medical records are immense and as such, I am a reluctant supporter of their introduction. As an individual greatly concerned with the encroachment of government into peoples personal lives and having witnessed the miss-utilization of other legislation, the introduction of electronic medical records is being considered with extreme trepidation. When one considers abuses of such data, the recent loss of British medical data by loss of a hard drive or like Safeway's selling of pharmaceutical records to insurance companies in the United States, the examples are endless; this trepidation is most certainly justified. In Canada, we have enjoyed a relatively pristine history with respect to medical discrimination, yet present are a few skeletons in our national closet, such as state sterilization of person's afflicted with none - genetic handicaps. When we dare to cast an eye to Europe's recent history and imagine the implications of this information in the hands of people gripped by the most sinister ideology, one begins to wonder whether the exercise is prudent at all. It is only the presence of a massive volume of information that is presently remaining un-captured and the promise that information offers for our population's benefit that compels this action; paradoxically, in BC we have all the exposure to centralised medical records and none of the benefits. The people responsible for the design of the systems associated with the capture and storage of this most sensitive data must be cognisant of the fact that in the contemporary context, this exercise seems benign enough, but history is full of examples of the errant use of such information.

It is a most fundamental right to refuse medical treatment and by extension, one should be able to refuse to have medical treatment recorded. A citizen should be allowed to retain control of their medical data. At present databases administered by medical professionals provides some insight to how causally the stewardship of such sensitive data can be. Presently any prescription you purchase in British Columbia is captured in the Pharmacy database and any pharmacist in the province with your name can search your records. You can write a letter to the government for a copy of your medical billing records and they are sent to you via the mail, absent any verification of who gets them at the point of pick up. We need to extend at least the same level of security to medical data as we do our financial data. If people want access to my bank information they need my bank card and a P.I.N. The technology is in place to extend an individual control over their personal data and this technology must be accessed, especially in the case of sensitive medical information.  

At the risk of being cynical, I have little confidence that people are taking seriously enough the implications of such data systems in the context of the full backdrop of human history. There is complacency, a casual sense it will be ok by governments. This is most alarming. There is a generalised acceptance of paternalism on the part of the populous that prevents people from arousing from apathy to challenge these kinds of developments.  

Law, Legislation and Civil Liberty – BC Mental Health Act. (BCMHA) – Charter Breaches and Infringements

One can muse about the Charter of Rights and Freedoms, whether it is complete, whether it is that meaningful from a federal perspective given the “notwithstanding clause” and of course the complete absence of property rights – but it is here now and it has gained legal mass given all the precedent set in “Charter Challenges”.  The important thing about the Charter is that it says the words “Rights and Freedoms” and holds as equity 300 years of toil for freedom by the founders of the enlightenment. A collection of people who fully understood the tyranny of the institution and how it can wrought the human sole in a  most grievous way at times, they knew that in a human organization – the institution - is levered the human inclination to put a boot on others' necks. We have what amounts of a fledgeling document in the Charter of Rights and Freedoms that stands between us and the abuse of state power, a document that in many ways gives expression to the finest intent of humanity – the desire to give freedom to others; we ought to be nurturing it as opposed to permitting it to be chipped away at – as I have witnessed in this case study.

Section 7 of the Charter says we are entitled to Life, Liberty and Security of Person – embedded in that entitlement, and supported by a breath of legal precedent, is the right to choose. The BCMHA imposes on the right to choose and does so in breach of a longstanding tenet in medical law, which amounts to the “assumption of competence”, like liberty - as it is an extension of liberty, for the state to arrest one’s ability to refuse treatment it must prove the individual is incapable of judging for themselves. In British Columbia there is no attention paid to this tenet as there is in other jurisdictions such as Ontario, in British Columbia, the opinion of the individual who is merely accused of mental infirmity has no weight – a doctor’s opinion and only a doctor’s opinion can incarcerate someone. There is no requirement, as the act is now administered to “prove” incompetence. Section 7 says we exist in a state of liberty and for the government to interrupt that state of liberty it must “prove” it has just cause, as the BCMHA is now administered there is no requirement to prove illness exists, with opinion and only opinion and no objective data you can be incarcerated. The BCMHA’s involuntary treatment provisions are most often actuated to force the consumption of medication, medications that are ofttimes pathogenic, very potent, and with very little scientific data to support their use; this is executed absent judicial review or any of the trappings of “real judicial process”.

Excerpt 1 from Case Study of Starson v. Swayze.  “The Court noted that under the Health Care Consent Act there was a presumption that people were capable of making treatment decisions and that the onus rested with those who challenge the presumption to establish incompetence. Further, the Court examined the two-part test under the Act for determining whether a person was capable of making treatment decisions: first, the person has to “understand the information that is relevant to making a decision about treatment;” and, second, the person has to be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

The subject of this case study passed this test, his capacity was substantiated by the very medical personnel the detained him for 12 years. In seven Review Panels and a B.C. Supreme Court proceeding, this issue was never raised on the individual's behalf nor was the principle applied – in other jurisdictions this test is applied.  In Ontario it is considered and generates an odd circumstance where people refuse treatment and then are held due to being a risk to self or others, it is in effect a legal catch 22; the fact this happens indicates how important the Judiciary in Ontario views the “presumption of competence” and the extent they are willing to go to protect it. The very crux of liberty, its point of emergence, is the individual’s right to hold domain over mind and body, there is no greater incursion the state can make on an individual than to take domain over mind and body away – when it is done wrongly, absent due process, in the public eye there is no more dis-empowering or humiliating experience. This case study has shaken my faith in our system of justice, the judiciary has abandoned people accused of mental infirmity and by extension has abandoned us all.

The intrusion by state on Section 7 must be contemplated by juxtaposing – how important is it to arrest this individual’s state of liberty against, the wellbeing of the citizenry at large – that is the basis in thought for the “Fair Balance Test” – the fair balance test in no way extends to the state the power to protect us from ourselves – when the state starts down that road our choice is eroded – as the BCMHA is now administered the state passes judgment of financial decisions, social interaction, physical health – these are matters clearly inside the domain of the individual and should never be subjected to state intervention.

Section 9 of the Charter says that a “reasonable mind(s)” and due process will determine whether or not someone falls under state sanction and that no one can just say “lock this person up”. The BCMHA as it is now administered does that very thing, on the perception of illness only – if a layperson judges your actions to be a product of mental infirmity – you can be incarcerated in a hospital – it is important to note; no illegality needs take place, no act of violence, no suicide attempt, you only need to be acting oddly. To be retained in “custody” a medical doctor has to “be of the opinion” your actions are a product of infirmity and then within 24 hours the “opinion” needs to be supported by another “medical opinion” and then you’re “in the system”.

As an aside, due to the fact that there is no requirement for evidence that is objective in nature, at the point of accusation, one is placed in a de facto state of reverse onus - as the state has acted on subjective opinion only. This disadvantages the accused, in that, they are required to respond with "objective" evidence to secure release.

The act then subjects people to the “arbitrary” actions of fellow citizens, the act then subjects people to the judgment of a single individual, the act the requires another individual to support the first individual – no real due process takes place prior to incarceration – that is arbitrary. Worse, however, is the fact that there is a high degree of propinquity between professionals, not mention professional courtesy – the second opinion is in effect a rubber stamp. The subject of this case study never interfaced with the GP that initiated the act’s use regarding mental health issues, he made claims which the second doctor interpreted as illness and which both doctors failed to refute via judicial process – that is to prove with evidence – then the third doctor, a requested the second opinion, did no independent investigation – he merely reviewed the second doctor’s records. The challenge here is, we have medical personnel taking a paternalistic stance, with a high degree of continuity of thought administering the law, the judiciary understands the boundaries of state power in the context of society as a whole, the BCMHA is administered completely in hospitals. When someone decides to dispute opinions they are offered retrograde process in a meeting room; people rights are being taken away, they deserve a courtroom, a judge, and real process. There should never be a circumstance when we “expedite” the incarceration of a citizen as the BCMHA does, as in the expediting there is inherent arbitrariness.

The subject of this case study had less than two hours interface with medical personnel before that act was misapplied, had never committed a single act of violence or threatened harm to self or others – he merely asserted the presence of synchronistic actions on the part of a group or groups and for that, absent any evidence to refute the claim, he was incarcerated and detained for 12 years, forced to consume medication, had his privacy invaded and a multitude of other humiliating experiences. An obscene abuse of state power, a travesty of justice, a heartbreaking saga for him, stigmatization for no reason - this was a state-sanctioned act of malfeasance. As his case progressed, after 12 years of his fighting the system, after Royal Inland Hospital spent thousands of dollars on a lawyer to fight him and he with only his own person and no resources – they released him with no apparent constraints on his person.

There is no doubt that this acts initiation and ongoing administration was arbitrary in this case – it can be proven – proper process has been denied.

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Law, Legislation and Liberty – BC Mental Health Act. (BCMHA) – Vague

In order for a law to be administered fairly and absent arbitrariness, clarity is required. The BCMHA is very difficult to administer because the nature of related medical practices leaves a wide scope for interpretation of illness and degree of illness, physiological assessment is inherently subjective and easily subverted by personal biases, social convention, and cultural variances. In administering patients under the act, the medical professional is extended a broad degree of discretion, while they have a requirement to assess the “plausibility” of claims, for example, there are no guidelines on how plausibility is interpreted or applied – they simply decide what to believe or not to believe absent any requirement for proving or disproving and they are most often informed by hearsay alone. Further; “severity” is ill-defined, the perception of illness is all that is required to actuate the act. In the administration of the BCMHA, there are no clear benchmarks for practitioners and judiciaries with respect to “severity”. People can have their rights breached absent being a threat or for failing to watch their finances or a single person exposed to the act can be treated differently depending on who treats them. In this case, vagueness effects arbitrariness. 

In the absence of clarity around “severity” medical personnel have the capacity to act preemptively-  we think the patient will do something wrong, we will incarcerate them. To medical professionals this makes perfect sense, mental illness responds to early treatment, this is one of the base arguments for an act like the BCMHA. The challenge is that it is a base tenet of our legal system, that in order to have your state of liberty interrupted something wrong must have occurred – this is fundamental – the absence of clarity around severity moves us away from fundamentals. There are very few instances if any in practical terms, where there is an opportunity for preemptive action by the state. The existence of preemptive capacity may subject the act to subversion – it may be tempting for example – to have a man declared ill on the basis of “unreasonable jealously” and incarcerated on the perception he might do something violent in a crumbling relationship. This kind of legislation is a very slippery slope and it puts us all at risk, at any time, of having the perceptions of other’s determine whether our state of liberty is upheld or not. In law in general, to incarcerate people on the anticipation they might do something is a complete breach of our legal traditions. 

There is leeway given in the administration BCMHA with respect to the preconditions of incarceration, due to the assertion, that when administering the act professional’s actions are absent a punitive element. Anytime the state uses its power to change behaviour, or to detain for the protection of the public it is punitive; the fact that force is permitted and used indicates the people affected view the use of the BCMHA as punitive. 

The act now grants complete discretion to medical personnel as to whether to use the act or not, the use of the act hinges on the perception of illness, as opposed to physical occurrences, objective data, proof of a pathogenic abnormality, or threatening actions by an individual. The BC Civil Liberties group and others see the flaw in this and want there to be a strengthening of the language around severity to include terms like “imminent harm” “a clear threat to self or others”.

As a result of the BCMHA being ill-defined, the requirements of the state to strike the right balance between public safety and administering the law can never be ascertained, because professionals discretion and the perception of illness are the only determining factors in the in actuating the act. The “fair balance test” as determined by Cunningham V Canada requires that for certain sections of the Charter of Rights and Freedoms to be deemed appropriate, circumvented, or the degree they are circumvented, that there needs to be a clear requirement for public safety; the BCMHA has no mechanism, as it is presently administered and written, to determine whether or not the “fair balance test” is satisfied.  To find accord with the precedent it is required that the BCMHA effects a reduction in liberty that is commensurate with the need to protect society, there is no means determine accord with precedent given the vagueness of the act.

The inclusion of language that defines the parameters for professional action would reduce the risk of abuse of the act, reduce the present arbitrariness of the act and return us to be closer to fundamental law. Clearer definition and judicial review prior to incarceration or being committed would permit the treatment of people affected by mental illness and protect the rest of the population while maintaining accord with fundamental rights.   

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Law, Legislation and Civil Liberty – BAD LAW - DANGEROUS LAW - UNJUST PROCESS

THERE IS A LINK TO SPECIFIC CHALLENGES WITH THE BCMHA AT BOTTOM OF PAGE.
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It is the case that in the practice of law, that the minutia tends to take us away from justice, the big picture. In Canada, we have a circumstance in play that has the erosion of fundamental law occurring at an alarming rate. If you have a deep belief in common law and its fundamental tenets that are the foundation of our system, then you will share my concern with respect to this disturbing trend, a trend that has expediency trump due process. There are a number of examples of this trend throughout the system, no more glaring however than the BC Mental Health Act. An act that has drifted away from fundamental law, and that was drafted and is now administered is a manner that flouts common law traditions and the charter. We need to be very wary of the “tribunalisation” of legal process, as it has been applied here a number of ills have emerged; not the least of which is the stagnation of statute absent exposure to court process and alterations due to its administration in the face of precedent effect. We need to ensure that people have the benefit of the “full due process” that courts provide. We need to protect evidentiary process. We need to ensure that the standard of review is commensurate with state sanction. We need clarity in law. We need the absence of arbitrariness. As the BC Mental health act is written and administered there is a litany of breaches and infringements on expected process, fundamental law and the charter. The BC Mental Health Act, as it is administered, counts evidence in a manner that would be analogous to Crown Counsel writing “guilty” on a piece of paper, handing to the judge, and having it accepted. I have prepared a summary of a case of an individual severally affected by the mis-application of the BC Mental Health Act, please take the time to review this case by clicking on the link below. I am sure you will find this act and its administration as concerning as I do.  
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There has never been a better legal system than “common law”, it is fair, it is responsive and through the use of precedent a single “law” can evolve at a  measured pace. One can attribute common law’s fairness in large measure, I believe, to the fact that the people who devised the process knew they would never be subject to it. As common law is now applied, as directed by our charter, “universally”; we have certain protections and obligations. It is my assertion that the hard-earned protections afforded us, years of tradition that has built the foundation of our system – or the bank of fundamentals that make our common law jurisdiction’s residents’ safe from intrusion by others or government – are all being seriously challenged by a complex of factors; the apathy of the people to long accustom to legal fundamentals of freedom being in place, legislation greatly influenced by “special interests” that are in effect radicalized to the point of lobbing to weaken the fundamentals of freedom, technology in the hands of government and other actors that circumvent traditional legal and societal protocols. There has been an insidious slide backwards to state authority gaining greater and greater influence over the full continuum of human existence, we are all complicit in this, we need to be more diligent in arresting further state intrusion into the citizenry's private lives by ensuring the fundamentals of freedom; presumption of innocence, habitus corpus, protection against arbitrariness, overreaching legislation, charter protections, property rights etc. are upheld – the law must be administered off the foundation of first principles, as opposed to contemporary concerns and nouveau tangents.

A most glaring example of this is the British Columbia Mental Health Act. (BCMHA), where lobbing has effected a circumstance that has the interests of a few, very few, overriding the fundamental rights of the entire population. Through the experiences of a friend, I have witnessed a travesty of justice – where the most draconian measures available in Canadian society, incarceration was utilized inappropriately and on the judgment of what amounts to a single individual. This is a terrifying piece of legislation because it attacks the fundamental rights and freedoms of the entire population, and worse, discriminates against people at the mere accusation of mental infirmity (oft times accusations by laypeople) and then discriminates by the mechanics of the systems as it disempowers the accused to a greater extent the more they object. These types of legislations the world over have been the favoured tool of oppressors, as they both incarcerate and discredit in one fell swoop; Soviet Russia, China, jurisdictions in the United States and Europe have seen abuse of these types of statues, we need now to work to see that in Canada, that statutes of this nature are brought into accord with fundamental justice and the Charter of Rights and Freedoms.

In Canada, we are in a trend of lessening liberty as opposed to increasing liberty, I intend, with the BCMHA as a lens, to enlighten those who are interested in how our liberty is being eroded, how institutional inertia is taking the law further away from base principles and how easy it is for legislation to be misapplied and power abused. The BCMHA was conceived and promoted by people injured by what can be a ravaging experience, they have my empathy, however; in the creation and administration of the law a sober mind is required, and as much attention needs to be given to a law’s misuse as it’s intended use. The only way to ensure the law is properly directed is to build it on base principles which have at their core the protection of the individual against misapplied state power and or the actions of others.  It is a most grievous circumstance, that in Canada, we have legislation in place that both endangers the general populous, and both arrests the rights of the ill and discriminates against the ill.

PLEASE CLICK HERE - TO REVIEW DISCRIMINATORY ELEMENTS OF THE BCMHA