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Disclosure of Records Workshop |
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Contents
This workshop has been designed to assist women with disAbilities and Deaf women make informed decisions regarding their therapeutic, medical and personal records. It focuses on how these records might be used in a variety of legal proceedings in which women who have experienced violence might become involved. WWD/DW face a number of challenges in interacting with the legal system in addition to those faced by all women who experience violence. First, WWD/DW experience higher rates of violence, particularly by people known to them, including partners and caregivers. Then, when they report the violence or abuse, they often are not believed because those to whom they report what has happened may still believe many of the myths about WWD/DW. Then, if a legal proceeding does follow, WWD/DW are especially vulnerable to the use of medical and other records. This can arise in the following kinds of situations, for example:
Records are so common that we often do not even think about them. There is virtually no person who does not have some kind of records kept on her or him. Birth records, immunization records, medical records and school records are common documents created about us before we are aware enough to be concerned about what might be in those records and how they might be used. For some of us, there are even more records - immigration, child protection, etc. As adults, we often enter into professional relationships where we know records are being kept, but we don't really think about either what is in them or the use to which they might be put. If we work, we have employment records, if we bank, we have bank records, if we go into therapy, our therapist keeps records. . . . There is an almost endless list of records that we create, that others create with our knowledge and that others create without our express knowledge. We may or may not have control over the contents of the record. For example, we likely know and have control over most if not all of what is in our employment record. However, we do not control the notes made by our doctor or therapist. Usually, we do not think about others having access to our records until too late - until there is a court application for access or until we are being asked to consent to giving someone that access. This can, in some situations, create difficulties for us. We all have records that we must, at some time, share with others. For example, at tax time, we will need to give the government documents detailing our income and expenses. Or, when we enroll our children in daycare or school, we will be asked to produce vaccination certificates and other health records. However, there are
other times that we must disclose information that we may prefer to keep
confidential. For example, in a variety of legal and administrative arenas
including child protection, custody and access, sexual assault and other
criminal proceedings, and Criminal Injuries Compensation Board, a woman
may need to disclose otherwise very private information to support her
case, or someone else (sometimes her abuser, sometimes a third party,
sometimes the court) may force her to disclose this information, or may
disclose it on her behalf.
You may have more records than other women. Whether due to actual need, or perceived need on the part of one's caregivers and health-providers, WWD/DW may have extensive medical records. Some illnesses, such as MS, are chronically disabilitating and require increasing medical intervention. However, some Deaf women, for example, describe the medicalization of their childhoods: family and health professionals tried numerous medical therapy and devices in an effort to make Deaf children "normal". This results in a lengthy medical history that does not reflect the woman's own self-concept or her mastery of the world as an adult. You may also have related records regarding support services, financial aid, and therapeutic care. A woman's disability may be overly documented in other situations as well. Employers may emphasize an employee's disability in order to receive government funding to assist the company in providing accommodations for staff with disabilities. If the record is created for the purpose of assisting the woman in gaining access to a service or an assistive device, it may make the disability sound more problematic than it would be in another context (e.g. custody). That is, the woman or her service provider may stress the disability in certain records. WWD/DW are rarely empowered to review their records. Although this is changing, few people, regardless of their ability, are empowered by record-takers to review and challenge documents created about them. For a variety of reasons, a WWD/DW may be unable to review her record as it is being created and to point out flaws in it. At the time the record is created, she may be very young, feeling extremely unwell, inexperienced, or the record may cover complicated medical or technical information. Often records are made when we are most vulnerable or distracted by crisis - for example, during illness or in relation to a crime or a traumatic situation. The record taker may use his/her authority to prevent review, or may not make the record available in a format that is accessible to the woman (e.g. a print document, poor handwriting by the record-taker, unnecessary use of jargon or abbreviations). Or the record taker may not remind you after the crisis has passed that a record exists. The record as it has been created and/or is presented will be incomplete and therefore misleading. Such records rarely document all the ways in which the woman is capable. Medical records may make an illness or disability appear more intrusive than it is. Historic records may contain out-of-date but emotionally inflammatory information (e.g. information about past institutionalization, past substance abuse, prior CAS investigation). Societal myths about disability will affect the writing and reading of the record. Psychiatric records may be the most dangerous records of all. Society generally continues to hold as truth many myths about mental illness - that people with a diagnosed illness like schizophrenia are always violent, that people who are depressed are always in imminent danger of killing themselves, that once someone has had a "mental illness" they are always at risk of having it return, etc. As well, by definition, psychiatry is a field of diagnosis, or labeling, which then leads to extensive record keeping. Who creates the record will also affect its content and power. Often there is little to be done regarding who takes the record. Unfortunately, the record-taker's biases, lack of skill or self-serving interests may interfere with the quality of the record. Furthermore, a person with a strong professional reputation will have his/her records taken more seriously, and their medical, therapeutic or personal perspective will affect the tone of the document. This is particularly disconcerting when the record taker is prejudiced about disability or simply ignorant about the specific needs of WWD/DW. Either way, the results for the woman about whom the record was made can be equally dangerous. Training and education of key documenting services, such as the police, is essential but sadly lacking. Where possible, in serious situations like dealing with the police and courts, the services of a professional advocate or interpreter should be involved when record-taking occurs. For example, women with some intellectual impairments will have trouble with the criminal process as it is presently administered; they must give the same statement over and over again and any inconsistencies are seen as proof that the alleged event did not take place. A professional advocate could inform police of the specific abilities of the woman and ensure that the record taking experience is conducted in a way that is most supportive and informative for the victim. Who assesses the record will play an important role. The person assessing the impact of the record may not have the expertise to assess it appropriately or may hold discriminatory views regarding particular disabilities. For example, a child protection worker will not likely have the training to understand detailed medical records and may place more value on the information than necessary. An abusive man involved in a custody dispute may wish to include his ex-partner's records regarding her head injury because he is counting on the judge's biases and ignorance regarding the issue. Abusive men will consciously use or threaten to use records to get what they want Abusers will do almost
anything to control women they have focused their interest on, and this
is especially true when a woman tries to end the abusive relationship,
whether that be a marriage or a supposed professional relationship between
a patient and her abusive health provider. When she tries to put an end
to the relationship, he will feel that he is losing control and will try
new methods to gain back this control and/or to punish her. Common methods
include stalking, battles over children and possessions, and repeated
legal allegations. If the abuser is aware of medical, therapeutic or other
records that may affect the court's perception of her, he will try to
use them. He may only need to suggest or tell the woman that he is considering
using these records to change her behaviour. Some women have returned
to abusive partners when they learn that their ex's will bring forward
medical records in child custody trials.
Disclosure of records refers to the ability of someone other than the person who created the record ("recordmaker" or "recordholder"). Most often, disclosure of records can only happen where the client/patient provides written consent. However, increasingly records are disclosed as the result of court applications brought by the party who wishes to see the record. This happens in a number of contexts; perhaps the most infamous is in sexual assault criminal trials.
Generally, this means any document of a private nature, including medical, therapy, child welfare, social assistance, psychiatric, school, employment, and adoption records. Increasingly, records can also mean personal journals and diaries. Increasingly, records can be created and kept in electronic format. Email correspondence, medical and other records and can kept in this format and are considered just as much records as more traditional files. These records are not immune from disclosures simply because they are electronic.
Privacy and our right (or lack of right) to it are defined by three different bodies of knowledge.
Statute Law Statute law is legislation,
such as privacy and freedom of information laws, that sets out what is
and what is not private in specific situations. Statutes that affect privacy
for people in Ontario include….. Case Law Specific cases that have been to court and upon which judges have made decisions create what is called "case law". Case law can -- and from time to time does -- conflict with statute law. Case law that affects privacy with respect to records of women who have experienced violence is limited. The most significant case is R v Mills, a sexual assault case which will be discussed later in this workshop. Common Understanding Finally, there is how we as a society understand (correctly or not) the issue of privacy. While, of course, this is not law and would not protect us in the event of a conflict between what we understand and what the law says, it is important to acknowledge this because these understandings will affect the decisions we make. Commonly, despite what the statutes and court decisions say, people believe certain information, conversations and relationships are private. For example, we expect that our exchanges with doctors and other health care providers, therapists, employers and religious leaders be kept private. Women in the legal system often mistakenly assume that conversations with police officers, the Crown Attorney and Victim Witness Assistance workers are private.
Most people understand confidentiality to be absolute in all situations where it is offered or held out. However, the only legally binding absolute relationship of confidentiality is between a client and her lawyer. Even in this situation, there are two exceptions which require the lawyer to report the information s/he has to the authorities: child abuse disclosure and admission of plan to commit a violent crime. In all other private relationships, even if confidentiality has been offered by one person to the other, information and records can be made public upon order of a court.
Consent occurs when a person, who has been fully informed, chooses to share private records with another party who did not already have access to them. To be valid and legally binding, the consenting person must do willingly; she cannot be coerced or intimidated into agreeing to share the information. Consent should be given in writing. The issue of consent can raise a number of specific concerns for WWD/DW. Here are some examples:
Try to ensure that you only give consent on a case by case basis. For example, a woman being investigated by the CAS should not sign a blanket release form allowing the worker to seek any records created by anyone for any purpose at any time. The woman should only consent to having specific records that she believes are relevant to her case released to the CAS. A blanket consent form can allow a fishing expedition into a woman's past and may produce records that are highly prejudicial but of no actual relevance to the case at hand. Women may find themselves pressured into signing a blanket consent by being told it is "more convenient" and will "speed the process up", but should be encouraged not to do so - at least until they have had the opportunity to discuss the matter with an advocate who thoroughly understands the issue of how records can be used.
It is important to understand some of the many reasons an abuser would use the law to try to gain access to a woman's records:
Third parties, such as child protection authorities, may seek records because of inaccurate beliefs about WWD/DW and their parenting abilities or because they have been misled by the abuser to believe the woman's disability is related to the child protection issue at hand.
One of the most common strategies of defence lawyers in sexual assault trials, particularly when the accused and the complainant know one another, is to attempt to intimidate and/or discredit the complainant. Over the years, they have employed a variety of techniques in order to do this. A common strategy in the 1990s was to seek disclosure (called "production" in criminal proceedings) of private records, particularly therapy records, of complainants. Initially, courts were sympathetic to these requests, agreeing with defence lawyers that the records were important to ensure the accused received a fair trial. Commonly, therapy records, both pre- and post-assault, were handed over to the defence (and thus to the accused). This had a huge impact on women, many of whom decided to choose between reporting their sexual assault or seeking counselling, but not doing both. It also affected service providers, some of whom stopped keeping notes/records out of fear they would have to turn them over to the police. By late 90s, in a case called O?Connell, the Supreme Court of Canada was imposing significant limits on the rights of the defence to seize these records. The Department of Justice then wrote amendments to the Criminal Code which made it very difficult for defendants to get access to private records of complainants in sexual assault cases. These amendments were challenged by men charged with sexual assault as being a violation of their Charter rights, but in the case of Mills, the Supreme Court of Canada upheld the sections. Now, although the defence can still apply for production, it is rarely granted. It is important to remember these limitations ONLY exist with respect to sexual assault criminal trials. There have been no changes to access to records in other kinds of situations.
When women sue an abuser for damages, they are an active party to the proceeding, unlike in criminal court where they are merely a witness. Hence, there is more potential for their character and past to be examined by the defendant in his attempt to discredit her evidence and her claim. Also, the lower standard of proof in civil court can mean that evidence in records is more easily accepted by the judge. For women who have been abused by their caregiver, service provider, health care provider, the risk of disclosure of records is especially serious. These abusers will have created records on the woman, will know exactly what is in those records and will attempt to use them if there is any damaging evidence in them. For example, one woman sued her doctor for sexual abuse. He had already been convicted of sexual abuse of a number of patients and had been disciplined by the College of Physicians and Surgeons of Ontario. The doctor had records showing the woman had a history of mental illness, and he was allowed to enter these as evidence in his defence in the civil law suit, which then discredited her and her evidence.
What
can service providers do to protect privacy of clients? records and meet
professional obligations?
Criminal Code definition of records as well as references to O'Connell OWJN analysis of Mills Guidelines for Record Keeping and "rationale for and approach to record keeping" This workshop was developed by Pam Cross of the Ontario Women's Justice Network (OWJN) It was programmed for online viewing by Barbara Anello with permission of the OWJN
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Page last updated March 22, 2003 |
