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A CF member's right to privacy: a personal treasure worth protecting.

The main purpose of this column is not to provide legal advice but to inform readers and address their concerns anonymously. As such, I welcome readers' questions about anything related to any particular topic or suggestion of topics for future columns. In so doing, the published answers will not only benefit the person asking the question but other readers who can relate to the situation and consider the author's response in relation to their own life.

KNOW YOUR RIGHTS

This article is part two of a five-part series examining the rights of Canadian Forces members and DND civilians as well as their dependants. Part one examined the right to counsel, and how, in my practice, I commonly encounter members and leadership who arc unaware of this right or of its extent. This part will consider the statutory rights of DND/CF members to privacy and, in particular, aspects dealing with the collection, usage, safekeeping and disclosure of their personal health information entrusted to CF health care practitioners. Part three will consider issues concerning improper use of release items; the fourth article will consider veterans issues; and the final part will consider matters such as grievances, harassment and claims.

DND/CF MEDICAL PROFESSIONALS

Health services are delivered to members of the Canadian Forces through the Canadian Forces Health Services Group (CFHG). This workforce consists of full-time serving members, and is augmented by contracting civilian health care providers under Health Services Support Contracts (HSSC). As of September 30,2009, there were 5,500 CFHG personnel, of which 481 (1 in 11) were civilians employed under contract. There is great expense in securing the highest quality medical professionals. The total budgetary allowance approved by the Treasury Board for these 481 contract employees is $96.75 million per year. (The total budgetary allowance approved by the Treasury Board for HSSC contracts was $967,500,000 over ten years.)

Full-time CF medical officers (or, for that matter, medical specialists, dentists, pharmacists, nurses, etc.) serving in the DND/ CF are employed in dual roles--as both medical practitioners and as officers, holding commissioned rank. With these dual roles come dual responsibilities that have the potential to lead to conflict and ethical dilemmas.

DISCLOSURE OF ID3AETH INFORMATION TO THE CHAIN OF COMMAND

If DND/CF medical professionals are ordered by a superior officer to divulge personal information contained in medical records of one of their 'patients', they may face a 'damned if you do, damned if you don't' conundrum. If the commissioned health practitioner refuses disclosure, the result may be censure or other forms of disapproval from the ubiquitous chain of command. (Refer to the article 'No Privacy of Health Information in Canada's Armed Forces' in the Canadian Medical Association Journal, where Dr. PC. Hebert et al outline how, on the one hand, as a physician a medical professional owes a duty to preserve patient confidentiality. On the other hand, as a military member, refusing to disclose documents ordered by a superior officer can result in disciplinary action for failure to follow orders from the chain of command.) Alternatively, if the health information is disclosed, he or she may be in breach of the Canadian Medical Association's Code of Ethics or of the rules of their applicable medical professional organization and become liable to face disciplinary action.

Information acquired during medical exams in strictly confidential.(DND)

As noted by the Supreme Court in 1928, it is important that patients, in consulting a physician or other health professional, feel that they may impart the facts touching their bodily (or mental) health without fear that their confidence may be disclosed or abused to their disadvantage. Yet, anecdotally, in my practice I have been informed of instances where a health care professional, fearing rebuke by his CF hierarchical superiors, has succumbed to the pressure of his chain of command to breach of legal, professional or ethical obligation to maintain confidentiality.

LEGAL PERSPECTIVE

Ultimately, a superior officer who requests medical records is not acting illegally provided there is a signed consent to the disclosure of confidences by the patient. In the end, if medical records are illegally disclosed, the culpability will rest with the health care practitioner who authorised the disclosure not the officer requesting access. A health care practitioner, whether working for the Canadian Forces or not, who releases confidential medical information without obtaining prior consent from the patient can be subject to serious disciplinary measures by their relevant professional oversight body. Worse, doctors, nurses, pharmacists, dentists, social workers, etc. acting wilfully blind, recklessly, or negligently in this regard can be suspended or even lose their licence to practice or other punitive measures for breach of privacy.

CONCLUSION

When joining the military, CF members do not relinquish any of their rights, including their right to privacy, especially in regards to the illegal collection, use or disclosure of their medical records. Should information be released illegally, that member can complain about any of these breaches to the Office of the Privacy Commissioner. The CF member can file a complaint with the appropriate professional oversight body. For any or all of these actions, and in particular when a CF member suffers damages from an unauthorized disclosure, legal counsel may be retained to ensure rights are protected.

FROM THE MAILBAG: HOW DOES ONE GET AN APOLOGY FROM THE CANADIAN FORCES?

Christine writes: "I was dismissed from the Canadian Forces in the early 1980s for being a threat to Canada because I was openly homosexual. To that point in my career, I had a good service record, and a bright future with the Forces. Even after all of this time, I am still hurt by the discrimination that lead to my release, and I feel that I have been denied a career that I had greatly desired since childhood. I know that my emotional stress would be relieved if DND were to apologize for my dismissal."

Michel W. Drapeau responds: In the 1980s, there was great stereotyping and fear of homosexuality. Thankfully, the Canadian Charter of Rights and Freedoms came into effect in 1982, but interestingly, homosexuality was only recognized as a prohibited ground for discrimination in 1995 by a split Supreme Court decision, in Egan v Canada. Prior to 1992, openly gay recruits were prevented from enlisting, and members who were discovered to be homosexual were released, largely for their own safety.

It is unlikely that DND would offer you an apology since, in doing so, they would effectively make an admission of wrongdoing. At the time of your compulsory release, DND was acting within the laws of Canada as they then existed. In Canada, laws (including the Charter) do not have a retroactive effect.

You may wish to solicit a letter of regret by writing directly to the Minister of National Defence. Included with your letter should be any supporting documentation that demonstrates that you were, in fact, released for being homosexual and no other reason, and because of this, you were then deprived the privilege of serving your country in uniform. To avoid DND's perception that they may have liability, you may also want to mention that due to the laws in the early 1980s, you recognise that DND faces no legal liability for your release. It may also be beneficial to add sentiment that if DND is serious about welcoming homosexual members to serve, this can be illustrated by highlighting and admitting to past injustices. Good luck.

Colonel (ret'd) Michel Drapeau practices law in Ottawa and is a Professor of Law at Ottawa University. If you have a question for Col Drapeau, you may submit it via email to Espritde Corps military magazine at info@espritdecorps.ca.
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Title Annotation:LAW & ORDER
Author:Drapeau, Michel W.
Publication:Esprit de Corps
Date:Jul 1, 2011
Words:1276
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