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The Question: Recent news reports suggest that U.S. border security agents have access to medical records of Canadians. This is beyond outrageous and nullifies the entire basis of trust in a octor-patient relationship. Effectively a government spy is in every examining room!
Why would I even go to a hospital or doctor in Ontario if the result is going to be public disclosure of my medical records to any government agency (Canadian or foreign), or insurance company, or employer, or police force? I now have no medical care, not without tremendous risk of disclosure of my highly personal medical information.
The Answer: There are many troubling issues that have been raised by the media reports. But new details are emerging and the situation may be different than you were originally led to believe.
For the benefit of those who have not being following the story, I will briefly re-cap what’s happened.
On November 25, Ellen Richardson went to Toronto Pearson International Airport to board a plane for New York, the starting point of a 10-day cruise to the Caribbean.
A U.S. Customs and Border Protection agent turned her away, apparently citing the fact she had been hospitalized in June 2012 for “a mental-health episode”. Ms. Richardson was told, if she wanted to enter the United States at some future date, she would need a “medical clearance” from a U.S.-approved doctor.
The incident seemed to suggest border agents, working for the U.S. Department of Homeland Security, are able to access personal medical files on their computer screens at the airport.
Ontario’s Information and Privacy Commissioner Ann Cavoukian has launched a probe into the matter. However, a spokesperson for provincial Health Minister Deb Matthews says border officials don’t have access to the medical or health records of Ontario residents.
In recent days, several legal experts have speculated that the information about Ms. Richardson’s hospitalization likely came through Canadian police – not the Ministry of Health.
Even Ms. Richardson’s lawyer, David McGhee, now thinks police were the likely source.
Ms. Richardson suffered from depression in 2012, following the break-up of a relationship. She made what she reportedly described as a “half-hearted” suicide attempt by consuming some pills. Her mother called 911 and an ambulance took her to hospital.
“When people have a problem they call 911. They don’t know that 911 is operated by the Toronto Police Department,” says Barry Swadron, a prominent Toronto lawyer.
He explains the police routinely make notes of these events, including suicide attempts and mental-health episodes. Some of this information is then added to the RCMP-operated Police Information Centre (CPIC) database, which is accessible to the U.S. Federal Bureau of Investigation and other American agencies such as the Department of Homeland Security.
Mr. McGhee confirmed in a telephone conversation with me that “police did attend” when the 911 call was made at the time of Ms. Richardson’s attempted suicide. “The local police relay the information to the RCMP and the RCMP then shovel it over to U.S. authorities. That appears to be the way it works,” he says.
Mr. McGhee is still seeking additional information to verify that this was what happened to his client.
But even if the Ministry of Health was not involved, that’s cold comfort to mental-health advocates who are worried about the type of non-criminal data that are often collected by the police and shared with foreign governments.
“It’s discriminatory,” says Abby Deshman, a lawyer and program director with the Canadian Civil Liberties Association.
“The minute you put mental-health information into police data bases, you run the risk of people making decisions based on that information,” she adds.
“There is frequently a wrong association made between mental health and violence … and that can lead to direct discrimination against an individual.”
In Ms. Richardson’s case, an apparent police record of her hospitalization for depression was enough to bar her from the United States, and she ended up missing the departure of her cruise ship.
Under the U.S. Immigration and Nationality Act, border agents can reject travellers who are considered to have a physical or mental disorder that could pose a threat to property, safety or welfare of themselves or others.
Ms. Richardson has sought treatment for her depression and her condition is stable, according to media reports. (Ms. Richardson is paralyzed below the waist as a result of a failed suicide attempt in 2001 when she jumped off a bridge.)
This was not the first time U.S. border agents have turned back Canadians because of mental-health information contained in police files. Two years ago, the CBC reported that more than a dozen Canadians had told the Psychiatric Patient Advocate Office in Toronto they were kept out of the U.S. in circumstances that resemble what happened to Ms. Richardson.
So when it comes to border crossings, the key issue seems to be what’s in the police files.
But it’s still worthwhile reviewing the measures that are meant to keep your medical records confidential because that is the main focus of your question.
The first thing to know is that the Ontario Ministry of Health doesn’t actually have a complete copy of your medical records – those files are retained by your doctors and the hospitals you visit.
At Sunnybrook Health Sciences Centre, for example, patients can see their own medical records through a secure online service called MyChart. The patients themselves have the ability to grant access to third parties such as other doctors and family members.
Other hospitals and physicians’ offices have adopted, or are in the process of creating, other electronic medical records. That essentially means there is not a single and complete record system for the entire province. However, all health-care providers must abide by the Personal Health Information Protection Act, which contains rules for ensuring the privacy of the medical records under their control.
What the province does collect is billing information. So, if you’re treated by a psychiatrist, the Ontario Health Insurance Plan will have a record of the date of your visit and your diagnosis, but not the substance of your conversation. Still, much can be learned about the state of your health by a list of your medical appointments. The treatments you receive, if they are covered by OHIP or the provincial drug benefit plan, would also be on file. So the province has adopted various security precautions to protect that information.
I asked David Jensen, a ministry spokesperson, to paint a picture of those safeguards.
In an email, he replied:
The Ministry of Health and Long-Term Care has a number of databases that contain different types of information about the health services received by individuals. Each database is organized differently. Most databases, however, do not contain the names of individuals, and are organized by Health Card number. The Ministry protects the privacy of individuals by not including the name and Health Card number together. If a person inadvertently or improperly accessed an individual’s record from a database containing Health Card numbers and a description of health services, the individual’s identity would not be revealed. A separate Ministry database that specifically links Health Card number with name and date of birth – and has separate and independent security processes –would also have to be accessed by the person in order for them to identify the individual who received the services described in the other database.
This explanation helps show why it’s highly unlikely U.S. border agents tapped into Ministry of Health records to learn about Ms. Richardson’s medical history.
I hope this overview will ease your concerns about your own medical records – at least as they pertain to the files kept by your health-care providers and the health ministry.
The police are another matter. “It would be extremely troubling if people felt they couldn’t phone the police or an ambulance because they were worried about the implications down the road of having it on record,” says Ms. Deshman.
Paul Taylor is Sunnybrook’s Patient Navigation Advisor. His column Personal Health Navigator provides advice and answers questions from patients and their families, relying heavily on medical and health experts. His blog is reprinted on healthydebate.ca with the kind permission of Sunnybrook Health Sciences Centre. Email your questions to AskPaul@sunnybrook.ca
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This is not just an issue for people who have had police contact that has been recorded in CPIC.
When you enter the US, you have to declare your purpose of the visit, how long your stay will be and where you will be staying (they require an address now). So, in my case, I have just been approved for out-of-country medical treatment for OCD (there is no adequate treatment here in Canada). First off, the fact that I will be staying in the US for 90 days is a red flag in and of itself. It’s not like I am going somewhere for a week. Secondly, I have to provide an address for them–they will obviously know it is a psychiatric hospital. Further, by truthfully answering questions and revealing that I am a (mental) patient, I will forever be excluded to entering the US. I am wondering at this point who is sicker….me or Homeland Security?
My adult son and I are going to Florida in 2 weeks and I am now worried that he may not be allowed entry to the U.S. because he attempted suicide a few months back. He is finally getting the help he needs and is well on his way to recovery and this would be a huge setback if he isn’t allowed some vacation time as well as myself! People should not be punished for a condition they can’t control if they have not done anything criminal.
I can understand your anxiety about crossing into the United States. Much depends on the U.S. border guards.
In the earlier case of the woman who was turned away, the border officials had some knowledge of her pervious attempted suicide through Canadian police records.
Do you know if the police showed up at your son’s attempted suicide?
If the police were not there, then is a good chance the U.S. border officials would have no record of the event.
If the police did attend, then you may want to get a letter from your son’s doctor stating that he is currently under medical treatment and does not represent a threat to himself or others.
Have the letter on hand in case a question is raised about his mental health.
Also, provide a phone number where the officials can reach the doctor.
I’m not sure how the border officials would respond to such a letter. But it may be worth a try.
This is an ongoing issue and one that is of concern for the Police Record Check Coalition ( http://www.mentalhealthpolicerecords.ca/). It is important to note that the U.S. has a specific law around this issue in their Immigration and Nationality Act which says that individuals with a history of mental illness may be “ineligible” for admission into the U.S. (see section §212(a)(1)(A)(iii)). Given this law, and the fact that the Canada Board Services Agency is ready to begin sharing personal information with the U.S. Department of Homeland Security under the new Entry/Exit Initiative, I suspect we will see more cases like the one of Ellen Richardson in the future.
Knowing the facts before crossing the US/Canadian border by land will help save you time and trouble on your trip and lead to fewer delays at border patrol.
US Waivers For Canadians
Border officers also google people – in the case of Ellen Richardson, her website comes right up detailing her situation. Ne need for them to access her medical records.
Hi Paul – what I really worry about is that people are going to stop talking to their physicians about mental health issues or calling 911 for fear of this type of retribution and loss of freedom to travel.
So the short answer is yes: watch what you pack in your bag, text your friends, or post on Facebook. Loss of freedom as we know it. So wrong.
Hello Sue:
U.S. border officials also make decisions based on what they find in your bags. Abby Deshman, of the Canadian Civil Liberties Association, made this comment to me: ” I have heard of situations where the border official sees that someone has medication in their bag and starts to ask questions and makes assumptions — and makes decisions [to bar entry] based on the medication they are taking.”
So does this mean that people who take antidepressant medications should leave their drugs at home when they are travelling to the United States?
Paul Taylor
Health information in a police database is subject to the same privacy protections as health information in Ministry of Health (or physician office) database.
A government that blames the police for the leak is missing an important point: the police must operate within the laws of the province. If the police are truly the source, a prosecution should be launched under the appropriate health privacy law.
This isn’t a police state.
#1984 #snowden
Mike wrote: “the police must operate within the laws of the province” I believe the police don’t have to “must” anything! If the police believe (rightly or wrongly) they are acting in good faith, and misinterpret a law for something it’s not, then the average citizen doesn’t have the same resources to hold them accountable, and the police know it.
Hello, and thank you for this – the customs officers also read texts from mobile devices and check Facebook accounts – so health information could be pieced together that indirect way too. This is scary scary stuff for the privacy and rights of individuals. Terrifying.