Appeal Court strikes down BC law that allows social workers to access parents’ medical files

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The BC Court of Appeal has struck down part of a BC law that allows social workers to secretly obtain the medical and psychiatric records of mothers and fathers to determine if they were fit to parent after a constitutional challenge under Canada’s illegal search and seizure laws.

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“The court declares section 96(1) of the Child, Family and Community Service Act to be of no force and effect to the extent that it authorizes directors of child protection and their delegates to request and compel the production of personal health information from the public without adequate procedural safeguards,” the three judges of the Appeal Court said in their written judgment bodies released on Monday.

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A Prince George law firm had earlier lost a bid in the BC Supreme Court in that city to have the section declared unconstitutional under section 8 of the Canadian Charter of Rights and Freedoms, which protects Canadians against illegal search and seizure by authorities.

The Prince George judge ruled 96(1) did not breach the Charter because he found the law “reasonably balances a parent’s privacy interests with the state’s interest in protecting children from harm,” according to the Appeal Court.

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The province’s highest court disagreed and held the appeal.

The written decision noted the law allowed child protection authorities to “obtain a parent’s personal health information from a public body without their consent, a court order or prior judicial authorization.”

“It’s a significant ruling,” said Maegen Giltrow, lawyer for the BC Civil Liberties Association, which intervened in the case. “It shows how lacking the safeguards were for the disclosure of the information. To not even been given after-the-fact notice is a real challenge because there was no oversight for the release of the information.”

The Appeal Court found the lower court judge “erred in his analysis of the intrusiveness of the search and seizure legal by the impugned provision” and his “balancing of relevant competing interests.”

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The Appeal Court in the decision gave the provincial government 12 months to fix the law. During that time, 96(1) would continue to be valid, the judgment said.

But the judges wrote that “the section 96(1) requests made in this case are quashed.”

TL, the mother of three young children, has a history of “trauma, mental health struggles and substance abuse,” the ruling said.

The director of child protection in 2017 opened a file on TL after receiving reports that raised concerns about her mental health and ability to care for her first born.

In 2020, the director received concerns about TL and her intimate partner, ZW, regarding their “mental health, drug use, unsanitary conditions in their home and possible neglect of TL’s two children.” In August 2020, the couple agreed to have ZW’s mother care for the children.

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In January 2021, TL’s lawyer said unless the director commenced court proceedings by a certain date, TL would resume caring for her children again. TL agreed to have ZW’s mother care for the children until the outcome of that court proceeding.

Also in January 2021, a social worker under section 96(1) asked the University Hospital of Northern BC and a Prince George primary care clinic at Carrier Sekani Family Health Services for all “medical history/reports” and “familial psychiatric history” for TL and “anything else that (those bodies) feel may be pertinent.”

The UHNBC disclosed records that were relevant to TL, ZW and one of the two children. The records specific to TL covered 2013-2020, “predating the director’s involvement with her by four years,” the Appeal Court noted.

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“The requests were issued without notice to TL. The social workers did not seek TL’s consent for disclosure of this information,” it said.

A nurse practitioner at the Carrier Sekani clinic contacted TL when she got the request and asked her if she consented and TL told her she had not agreed to release her records.

On Jan. 22, 2021, the director removed TL’s children from her and ZW’s care and a week later, TL’s lawyer asked that all of the section 96(1) requests be withdrawn and the records sealed. The director refused.

A few weeks later, in February 2021, TL and ZW were granted interim custody of the two children. In April 2021, TL gave birth to her third child, the same month the constitutional challenge was launched.

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TL said the director’s attempt to access her medical records was “distressing” because she assumed her discussions with health care providers were confidential and she said she “would not feel safe speaking to health care providers the way she did before.”

“The ministry has been taking action to improve our policies with respect to section 96,” a child and family development ministry spokeswoman said in an email.

It will clarify when section 96 may be necessary and what steps are “to be taken to ensure procedural fairness when personal information is accessed under section 96.”

“Section 96 has been an important tool used by child welfare workers to perform their duties, including investigating whether a child needs protection, carrying out guardianship responsibilities and gathering evidence for use in court hearings,” she said.

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Most of the safeguards against unreasonable search and seizures related to criminal cases, said TL’s lawyer, Paul LeBlanc.

“Today’s ruling spotlights the fundamental importance of privacy to everyone, especially where sensitive health information is concerned,” he said in an email. “Governments will have to be more mindful of the privacy interest in sensitive information they collect, use and disclose.”

He also said the BCCLA found that BC social workers have the most unfettered access to people’s private documents in Canada. In Ontario, they need consent or a court order, and in four other provinces, including Quebec, “the power to access documents is limited to circumstances where it is necessary to assess risk to, and need protection for, a specific child.”

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