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A B.C. court has outlawed the practice of turning over confidential medical records without permission to government social workers involved in child custody cases.

The landmark ruling will block government social workers from obtaining the medical records of parents whose children they are monitoring.

Currently, the law states that the province's social workers can secure parents’ personal health information without their consent and without a court order, in cases where there are concerns about the children's safety.

However, a panel of three B.C. Court of Appeal Justices overruled the provision ruling that the section regarding the seizure of medical records from parents in the Child, Family and Community Service Act is invalid.

The issue came to light after a parent whose children were removed from her home launched an appeal to an earlier court judgement.

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According to an April 24 B.C. Court of Appeal decision, the case involves a woman referred to as TL in the judgement.

The decision says she had a history of trauma, mental health struggles and substance use.

In 2020 TL agreed with social workers for her two kids to live with her in-laws after issues were raised regarding her mental health, drug use, unsanitary conditions in her home, and the possible neglect of her children.

TL then asked to have her children back and the case ended up in court.

At this point a ministry social worker requested TL's medical records and "familial psychiatric history" and “anything else... (that) may be pertinent."

"The requests were issued without notice to TL. The social worker did not seek TL’s consent to disclosure of this information," the decision reads.

Some of the medical records handed over covered several years before she had children.

A year later, TL gave birth to her third child and government social workers "demanded" TL's "immediate consent" to the medical records about her and her newly born child.

"She did not consent to releasing her medical history or records," the decision reads.

In the decision, TL says she has been frank with her care providers because she thought that what she told them would remain private and would be used only to help treat her.

She describes the government social worker's attempt to access her medical records without her consent as "distressing."

She says she will not feel safe speaking to healthcare providers the way she previously did, now she knows her records may be released.

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In an earlier court decision, the judge ruled that government social workers obtaining medical records balanced a parent’s privacy interests with the state’s interest in protecting children from harm.

TL argued the law was unreasonable and violated the right to be secure against unreasonable search or seizure as guaranteed in the Canadian Charter of Rights and Freedoms.

The Appeal Court agreed.

"In my view, a... search and seizure of personal health information is not minimally intrusive," Justice Joyce DeWitt-Van Oosten said in the decision. "The... search and seizure does not occur in the criminal or regulatory law context. It is not employed for the purpose of gathering evidence for a prosecution. However... it can be used (and most likely is used), to inform decisions that carry the potential for far-reaching impact on parents, children and the parent-child relationship."

The justice continued to say the provision was "not a reasonable law."

Ultimately, the Appeal Court ruled that government social workers will now need a court-ordered mandate if they need to obtain medical records.

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The Justices gave the government one year to amend the legislation.

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