Raids on Brown clinics were fishing expedition’
Police raids on two medical clinics belonging to former premier Ewart Brown were the “most egregious example of a fishing expedition one could ever imagine”, a court heard this week.
Mark Pettingill, representing 150 patients of the clinics, made the claim as he argued for patient health records seized by detectives during the February 2017 raids to remain sealed.
Mr Pettingill alleged at a Supreme Court hearing on Tuesday that the Bermuda Police Service got a magistrate to issue search warrants for the raids “through whatever colourful artifice” but failed to lay out the specifics of what they were seeking.
“There has to be some foundation,” said the lawyer, as he insisted that the question of whether the police’s actions were legal should be resolved before the files were reviewed in any way.
“You have to lay the groundwork if you are going to breach someone’s fundamental rights [to privacy].”
Mr Pettingill said his clients would apply for permission to seek a judicial review on that issue “in short order”.
But Dantae Williams, for the police, said the patients were aware of the police’s actions soon after the raids and had missed the six-month window to apply for a judicial review.
He pointed out: “This is two years plus.”
The health records of 265 patients were seized from Bermuda Healthcare Services in Paget and the Brown-Darrell Clinic in Smith’s as part of an ongoing investigation by police into allegations that the clinics ordered unnecessary diagnostic imaging scans to boost profits.
The files were sealed on the orders of a judge after civil proceedings were brought against the police by Mahesh Reddy, medical director of Bermuda Healthcare Services, and the clinics.
Dr Reddy sought a judicial review into the legality of the raids but Mr Williams said on Tuesday that at a hearing on October 4 last year, counsel for Dr Reddy and the clinics “stated they had no intention to pursue the judicial review”.
He said discussion at that hearing then centred on how a “protocol” for handling the files could be agreed.
Puisne Judge Shade Subair Williams said Mr Williams’s recollection was correct.
The patients represented by Mr Pettingill got permission to intervene in the proceedings, on the issue of patient confidentiality, in November.
Mr Williams said it looked like an “abuse of process” for the interveners to use the plaintiffs’ “now withdrawn position to advance their arguments”.
The judge said: “I think the reality is that those are arguments that will be fleshed out and perhaps even followed in a written ruling.”
Mr Pettingill made an application at Tuesday’s hearing for permission to appeal an order made by Mrs Justice Subair Williams on February 14 allowing the medical files of 75 patients to be reviewed by independent experts overseas.
He said the files were “grabbed” by police and not a single patient had been contacted since to ask if they consented to their records being reviewed.
Mr Pettingill said people cried during a 2017 meeting held for patients whose records were taken.
“They were like deer in the headlights,” he said. “[They asked] ‘Are they going to be able to look through our stuff?’.”
He quoted one patient’s affidavit, in which she said she felt “completely violated and offended by the actions of the police”.
The woman said she was aware of “numerous patients that have absolutely no confidence that the police will safeguard their information and there is a real risk that information will make its way to third parties or social media”.
Mr Pettingill said he had been involved in a separate case involving the seizure of material by police which then was “all over the internet in days”.
Mr Williams opposed Mr Pettingill’s application and said the judge exercised her discretion correctly in granting access to the files within the terms of an agreed protocol.
“He has to show there was a mistake of law,” said Mr Williams.
Mrs Justice Subair Williams said she hoped to give a written ruling on the application by the end of this week. A next hearing date was set for March 11.
Counsel for Dr Reddy and the clinics was not present on Tuesday but said at an earlier hearing that their clients fully supported the patients’ position.
Dr Brown, who has denied any wrongdoing, said in a statement directed at patients on Friday: “We will continue vociferously to defend the confidentiality of your medical records by all procedural means at our disposal.”
A meeting for patients will be held on Wednesday, March 13 at 5.30pm at the BIU headquarters.
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