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Will B.C. cut case workers' access to health records?

An Indigenous mother whose two eldest children were removed from her custody after a case worker examined her medical records is once again challenging a provision of B.C.
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‘As the law currently stands, it gives social workers unfettered access to sensitive records,’ said a lawyer arguing for changes.

An Indigenous mother whose two eldest children were removed from her custody after a case worker examined her medical  records is once again challenging a provision of B.C.’s child welfare  legislation she says discriminates against parents with mental health  challenges and violated her right to privacy.

According to court  documents, the records retrieved by a social worker showed the mother,  referred to as T.L., had a history of schizophrenia she manages with  medication, as well as substance use and trauma stemming from childhood  sexual abuse. 

T.L. appealed her case to the B.C. Court of  Appeal last week, and an intervening legal advocacy organization says  the outcome could permanently alter the child welfare system that  disproportionately polices Indigenous and disabled women.

Under section 96 of British Columbia’s  Child, Family and Community Service Act, case workers for the Ministry  of Children and Family Development can request access to medical and  psychiatric records, among other records from public bodies, to carry  out their duties without consent from or notifying the parent who is  being investigated. 

“As the law currently  stands, it gives social workers that unfettered access to sensitive  records,” said Bety Tesfay, a staff lawyer for legal advocacy  organization West Coast LEAF in an interview. 

After losing custody of her  two oldest children in January 2021, T.L. challenged the regulation in a  judicial review at the B.C. Supreme Court, arguing that without  reasonable limitations the law violated her Charter rights to privacy  and to freedom from unwarranted search and seizure.

The attorney general of B.C. and lawyers  for the case worker, on the other hand, argued that the policy was in  the interest of and in proportion to the importance of protecting  children, which T.L. agrees is essential.

The court ruled against her challenge, stating the provision was reasonable given the agreed upon significant goal of child welfare. 

This week, T.L.’s appeal was heard at the  B.C. Court of Appeal, which has reserved its judgment. A request for  comment to T.L.’s lawyer was not returned by press time.

There are no meaningful limits on the power  to access private records, which can be exercised as a result of  harmful stereotypes about Indigenous parents’ capabilities and  contribute to stigma, says Tesfay.

“Who is recognized as ‘the good mother’ or  ‘good parents’ and the systemic prejudices against Indigenous mothers  are unfounded,” said Tesfay. “These are harmful assumptions that can  arise within the system.”

That lack of privacy can also make parents  fearful of seeking health care and support for mental health or  substance use issues, Tesfay added. Child apprehension also increases the risk of parents experiencing drug poisonings. 

West Coast LEAF has intervened at each stage of the claim to argue  the court’s decision must consider the colonial underpinnings of the  child welfare system and the importance of privacy for people seeking  sensitive medical care.

“We’re hoping that the court recognizes the  social contexts of families who are more likely to be surveilled by the  state, and that meaningful limits to the law can support the shift from  an apprehension-based approach to a preventative approach within the  family policing system,” said Tesfay. 

“And we think this is important in light of  UNDRIP [United Nations Declaration on the Rights of Indigenous Peoples]  and DRIPA [Declaration on the Rights of Indigenous Peoples Act] and  B.C.’s commitment to decolonization.” 

The case at hand arose when T.L. told the  case worker of her intention to take her two oldest kids home with her  from where they were living with her partner’s mother in northern B.C.  since August 2020.

That arrangement was agreed upon by MCFD,  T.L. and her partner due to concerns of alcohol and drug use, mental  health and inadequate parenting skills brought to the attention of  Alberta’s Ministry of Children’s Services when the family lived briefly  in Edmonton. 

T.L.’s second child was  underweight and coughing persistently, and was diagnosed with and  treated in hospital for a fistula in May 2020 that had prevented her  from properly absorbing nutrients.

But in January 2021, T.L. wanted her children to live with her again, triggering a custody battle. 

An MCFD case worker in B.C. requested and  reviewed the mother’s medical and hospital records, which detailed her  history of schizophrenia, substance use and trauma stemming from sexual  abuse in her childhood.

According to court documents, T.L. took  medication for her schizophrenia that allows her to manage some delusion  and paranoia most of the time. 

The case worker then removed her two young children from T.L.’s custody, ordering they remain living with their grandmother.

In April 2021, T.L. gave birth to the  couple’s youngest child who stayed in their custody under supervision  from MCFD. And since then, their two older children have begun to spend  three days a week with their parents, unsupervised.

Tesfay says T.L.’s case highlights how  Indigenous and disabled mothers in particular are surveilled and  stigmatized in the current child welfare system, which needs to be  considered in the court’s decision. 

Child apprehension was a key mechanism of  the Indian residential school system and ’60s Scoop, which removed  children from their families, communities, languages and cultures to  church and state-run schools and to live with non-Indigenous families. 

The lasting, intergenerational trauma of that colonial violence is still perpetuated by the child welfare system, according to a 2019 report from West Coast LEAF. 

There are around 5,000 children in B.C.’s child welfare system today, 68 per cent of whom are Indigenous according to MCFD. 

Many Indigenous leaders and academics have  called it the “new residential school system” or the “Millennium Scoop.”  A 2019 report from West Coast LEAF found Indigenous parents felt a lack  of accountability and trust with social workers, as well.

In October 2022, B.C. announced landmark legislation that would continue the return of child welfare powers to First Nations communities. 

Tesfay said it is important for the current  system to be improved with the historical and current impacts of  colonization in mind.

“In this case, placing limits on that  unfettered access can be corrective for the power imbalance between  parents and the director, and it could mean potentially addressing the  distrust that caregivers have towards the family policing system,” she  said.

Moira Wyton, Local Journalism Initiative Reporter, The Tyee