Brown patients fight police over files
Patients whose health records were seized in police raids on Ewart Brown’s medical clinics do not want their files to be examined by detectives, their lawyer insisted yesterday.
Jerome Lynch QC told the Supreme Court that the 150 or so people he represented, whose personal information was taken two years ago without their permission and is still being held as part of a police inquiry, should be able to have a say in how the records were handled.
Mr Lynch said at a hearing in chambers before Puisne Judge Shade Subair Williams: “The patients are saying ‘we do not want you to have our material’.”
He added that the files could contain information on patients with HIV, or mental health issues, or who are facing death in the near future.
“It’s difficult to imagine something more sacrosanct than the personal records between a doctor and his patient,” Mr Lynch said. “The anxiety that these people have felt is extraordinary.”
Police raided Bermuda Healthcare Services in Paget and the Brown-Darrell Clinic in Smith’s in February 2017 as part of an investigation into allegations that the clinics ordered unnecessary tests for patients to boost profits.
Mahesh Reddy, medical director at Bermuda Healthcare Services, contested the seizures in a series of closed-court hearings and the files of 265 patients were sealed on the orders of a judge.
The records remain in the possession of the Bermuda Police Service and yesterday’s hearing was to determine a “protocol” for how they could be used, with submissions due to be made by lawyers for Dr Reddy, the plaintiff, and the police, the respondent.
However, Mr Lynch argued the proceedings should be adjourned until the court determined if the police acted lawfully when they took the files and whether they had acted illegally since, as alleged in a complaint made to John Rankin, the Governor, last month.
Mr Lynch, acting in a separate capacity as lawyer for Dr Brown, made the complaint to the Governor, accusing the police of using sensitive patient information to pressure a potential witness. Police deny the claims.
Mr Lynch said yesterday that the patients he represented, who were given permission in November to intervene in the case, did not agree to any protocol.
The QC said they did not believe that the police officers involved in the investigation would stick to the protocol or that their personal information would be safeguarded.
Mr Lynch said one patient was asked by a detective about medical matters which could only have come from the person’s file. He alleged: “The officers who would be in charge were ... abusing their positions.”
Mr Lynch said: “We say that it’s important before the court can fairly adjudicate on the question of access to be able to determine whether or not the police have acted improperly. If they have, what faith can the court have in a protocol that’s to be administered by them?”
He said lawyers had identified Chief Inspector Grant Tomkins as “one person in the police service who has acted improperly” along with another unidentified officer.
Mr Lynch said that was why they had asked for Mr Tomkins “to be removed from the investigation and we have asked for contempt of court proceedings”.
Delroy Duncan, on behalf of Dr Reddy and the clinics, said his client was “duty-bound” to support the patients’ position.
Mark Diel, for the police, said Mr Lynch’s application was “a delaying tactic and it should be seen for what it is”.
He added that Mr Lynch told the Sherri J radio show on January 22 that 70 of the files seized did not belong to patients of Dr Brown’s clinics, but to people referred there for scans by their GPs.
Mr Diel said: “We would seek an order that the protocol be approved in relation to those in any event.
Mr Duncan said he was concerned about the “spectre of 70 Bermudians who do not know that their files are in the possession of the police and are going to be reviewed, without their knowledge and without representation”.
He added: “We must be in the twilight zone.”
Mrs Justice Subair Williams rejected Mr Lynch’s application for an adjournment and ordered his clients to pay the police’s costs for yesterday’s hearing.
She said she saw no reason to delay determination on the protocol and it would be dealt with at a hearing tomorrow morning.
The judge said it was proposed that the police would scan and send the medical files to two overseas experts, in Britain and the United States, to review and that Mr Tomkins could be excluded from the process if that was found to be necessary.
She added: “At this point, I don’t see how any of the issues that have been raised by the intervening party would further prejudice the patients or the applicants from the existing reality ... that the sensitive materials are currently under the sealed possession of the Bermuda Police Service, which relies, to some degree, on its own integrity to abide by court orders.”
The judge ordered the media not to reveal the names of any patients involved in the proceedings.
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