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Lawyer: hold police chief in contempt of court over document destruction

A lawyer representing two medical clinics has called for the Commissioner of Police to be held in contempt after it was revealed that photocopies of medical records seized from the facilities had been incinerated.

Jerome Lynch, KC, counsel for the clinic and Bermuda Healthcare Services Ltd, told the Supreme Court that court orders had restricted access to the photocopies to protect the rights of the patients.

While the courts permitted specified police officers to upload 75 documents to a secure server, Mr Lynch argued there was no permission for any other access.

“It doesn’t permit any other access for any other purpose,” he told the court. “If you want access for any other purpose, you should apply.

“They were very tightly constrained, and that was for a very good reason.

“The information doesn’t belong to the police. It doesn’t belong to the doctors. It belongs to the patients. It doesn’t matter if it’s a photocopy. The information belongs to the patients from start to finish.”

Ben Adamson, counsel for the Commissioner of Police, said the orders restricted access only for investigative purposes and so no breach had been committed.

He said that Mr Lynch’s stricter reading of the court order was based on implication and would have meant that there could be no access to the secure storage area under any condition, including a building fire.

Police seized the health records of 265 patients from two clinics in February 2017 as part of an investigation into allegations that the clinics ordered unneeded diagnostic imaging scans to boost profits.

Later that month, Puisne Judge Stephen Hellman ordered that the seized documents be sealed. While the original documents were returned, police were allowed to photocopy the documents and store the copies in a secure facility.

That order was followed by a second in 2019 by Puisne Judge Shade Subair Williams, which allowed officers to upload 75 of the documents to a secure server.

Mr Lynch said that in March his clients received a letter informing them that the photocopied documents had been incinerated about 18 months after the investigation had concluded.

He said that the court orders did not permit accessing the documents to destroy them and amounted to a “serious breach” of the order and contempt of court.

“They might have thought it was the right thing, but unfortunately that is not the test,” Mr Lynch said.

Mr Adamson argued that the complainants had gone after “the wrong target” as Darrin Simons, the Commissioner of Police, was not in that post when the order was made and there was no evidence to suggest he was aware of the order.

“He must show that Mr Simons personally knew the terms of the order. He must show that Mr Simons acted or people acted under his direction in a manner which involves a breach,” he said.

Mr Adamson said it would be wrong for the court to find someone personally guilty of a criminal offence that they knew nothing about.

He said the access to the documents was not for an investigative purpose, and as a result would not have amounted to a breach of the order.

Mr Adamson also highlighted that Mr Lynch had said he would have likely recommended the documents be destroyed had he been consulted.

He added: “The incineration was almost certainly the right thing to occur, so why on earth are we here?”

Puisne Judge Saul Froomkin reserved judgment on the matter until a later date.

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