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Judge throws out case against police over incineration of medical records

Investigating officers: police target Bermuda Healthcare Services in February 2017, siezing the records of 265 patients at BHCS in Paget and the Brown-Darrell Clinic in Smith's (File photograph)

A judge has dismissed an allegation that the Commissioner of Police breached a court order by instructing officers to burn copies of seized medical records.

Counsel for the Brown-Darrell Clinic and Bermuda Healthcare Services said the destruction of the documents went against court orders over how they should be handled to protect the rights of the patients.

But Acting Puisne Judge Saul Froomkin found in a recent judgment that none of the court orders specified how the documents should be handled once the investigation into the clinics had concluded.

He added that it would be incorrect in law to find the police, or the Commissioner, in contempt of a court order because of an “implication”.

“Accordingly, the actions of the officers in incinerating the personal medical files did not constitute a breach of the orders, and no vicarious liability attaches to the respondent,” Acting Justice Froomkin said in the judgment.

“For these reasons, I find that there was no breach of the orders by the respondent or any member of the BPS, and accordingly I dismiss the claimants application.”

The judge added if he was wrong in his interpretation, the breach was “trivial or blameless” and a committal for contempt would be disproportionate.

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.

Jerome Lynch, KC, counsel for the clinics 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.

But 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 also 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.

However Acting Justice Froomkin disagreed with that assessment in his ruling, and stated that as the Commissioner, Mr Simons was the appropriate respondent in the case.

“I find that the respondent, upon his appointment, was deemed to have knowledge of his predecessor, with respect to issues directly related to the force,” he said.

“I am fortified in my view particularly since the orders in question were directly specifically at the force.

“It would be shocking indeed if at the time of his appointment and thereafter he was unaware of the orders of the court which directly affected the operational activities of his officers.”

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