Government & Medicine

A 'Patriot Act' of treason?

BC's outsourcing plans could declare open season on health records for the FBI

By Susan Usher

Lawyers in BC are working overtime to find out exactly what impact the US Patriot Act might have on patient privacy if the Health Ministry follows through on its plan to outsource some services to companies south of the border. The issue was first raised by health workers belonging to the BC Government and Service Employees' Union (BCGEU) who, worried for their jobs, sought legal advice on the matter. Their lawyers came back with the news that the American companies would indeed be bound by the Act to provide information about BC Medical Services Plan or PharmaCare beneficiaries to the FBI if they requested it.

Since the revelation by the BCGEU lawyers, the Health Services Minister, the BC Privacy Commissioner and the Office of the Attorney General have all been busily looking into it. "Our Minister has said that no contract will be signed until security and privacy issues are addressed, and that includes any potential impact of the Patriot Act," says Suzanne Germain, a communications officer with the BC Ministry of Health Services. The BC government is also working with US-based lawyers to better understand the full meaning of the Patriot Act, and anything they find out will be of interest to other Canadian jurisdictions.

The Patriot Act was signed into law in October 2001 (immediately after the September 11 terrorists attacks), significantly increasing the surveillance and investigative powers of law enforcement agencies in the US. Section 215 of the Act grants the FBI authority to demand any information relevant to an investigation of international terrorism or clandestine intelligence activities be handed over � including medical, business, education and library records. Individuals can't disclose the fact that they were served with a search warrant or that they supplied the records, under penalty of law. For its part, the FBI doesn't even have to show probable cause when it makes the request.

EFFICIENCY VS PRIVACY
BC's Health Ministry says the reason it's keen to outsource certain functions to private companies is to improve the efficiency of service delivery in the province. The services they're thinking of outsourcing include public enquiries, registering clients and processing medical and pharmaceutical billing claims from health professionals for insurable services. The ministry put the contracts out to tender, and in March 2004 shortlisted two companies: IBM, which is already involved in providing some services for the Ministry of Health, and Virginia-based Maximus.

"BC is not alone in having US-based companies involved in the management of sensitive personal information," says Ms Germain, noting that Maximus currently delivers a Family Maintenance Enforcement Program (which collects child support payments from deadbeat dads) for BC and several other provinces.

IS ANYTHING
PRIVATE ANYMORE
According to Robert Gellman, a privacy consultant in Washington, DC, the Patriot Act is just one more legal device that can be used to obtain records. The question he'd like to see answered is "Do any of these processes allow an American law enforcement body to order an American company that doesn't maintain records in America to deliver them?" He says, "The answer may depend on how the relationships are structured between the American company and the Canadian client."

HEALTHCARE: A TRADE ISSUE?
Scott Sinclair, a Canadian trade policy specialist and senior research associate with independent think tank, the Canadian Centre for Policy Alternatives, is concerned about any outsourcing of healthcare services for trade as well as for privacy reasons. "In trade agreements such as NAFTA, we have a country-specific exclusion that protects health services to the extent that they are provided for public purpose," he says. "Commercialization or privatization initiatives, such as we're seeing in BC, weaken this public purpose characteristic � then the system becomes exposed to trade litigation. If we directly involve a US company, we're definitely putting ourselves on the hook."

While the ministry says that the data would still belong to the government and would be used by private companies only to provide the specific services they're contracted for, Mr Sinclair is still wary. "No private company has ever had access to insurance data on this scale before," he says. "There would be a lot of information about Canadian doctors made available as well."