A Court of Appeal ruling on the legal battle over the legal representation of patients whose medical records were seized by police, is expected to be handed down within the next two weeks.
That ruling will determine whether or not there is a conflict of interest by lawyer Mark Pettingill and legal associate Victoria Greening representing the patients, whose records were seized in the ongoing investigation into the clinics owned by former Premier Dr Ewart Brown.
Mr Pettingill, a former Attorney General and his colleague at Chancery Legal appealed to the court to quash the ruling handed down in the Supreme Court that said there is a conflict of interest.
The patients say they are “shocked” to know their “lawyers have been fighting hard against efforts by the police to prevent Mr Petttingill and Ms Greening from acting” on their behalf.
Mr Pettingill urged the court to quash the ruling that he and Ms Greening.
Lawyer Mark Diel, who appears for the Bermuda Police Service (BPS), in his counter argument said the Court of Appeal should uphold the Supreme Court ruling because both Mr Pettingill and Ms Greening received confidential information about the case in their previous posts.
The Supreme Court heard sworn affidavits that Mr Pettingill had been briefed about investigations into Dr Brown while he was the Attorney General.
The court also heard that Ms Greening was said to been given information about the case while working at the Department of Public Prosecutions.
The Supreme Court ruling was handed down by Assistant Justice Kiernan Bell, who ruled that both lawyers had a conflict of interest and could not represent the patients.
The Court of Appeal hearing resumed on Wednesday, June 12 in Bermuda’s Court of Appeal.
In a statement released that same day, a spokesperson for the patients said: “To find out now that while this was going on and our lawyers had been prevented from representing us, the Police were going through our files.
“Neither the Police nor their lawyers bothered to inform us. This is nothing short of outrageous.
“We think this was deliberate to try to make our appeal to have our files back, worthless.”
The spokesperson added: “I do not understand the twists and turns of what is going on in court, but we, the patients, had taken comfort from the Police’s promise not to review the files until our objections had been finally decided and we were shocked to hear this latest news.
“Who can we trust if we cannot trust the Police Commissioner?
“Who can we trust if we cannot trust the Governor?”
“Clearly they do not care about us or our confidential medical files. We simply do not matter to them.”
During the hearing last week, Mr Pettingill argued that he received no information on this case while he was the Attorney General.
Even if there was a conflict of interest, he maintained that the BPS waived it because they failed to raise it for more than two year.
He did say however, that he received some information about investigations into Dr Brown, but he insisted that he did not receive any details on the allegations over-scanning at the former Premier’s clinics.
He also noted that he resigned in April 2014 – about three years before the police raided the clinics.
But Mr Diel countered his argument, and submitted that having no knowledge into any investigation is not a defence, and it does not clear the issue of conflict of interest.
He also noted that Ms Greening accepted she had a meeting while employed at the Office of the DPP, with members of the investigation team and that Mr Pettingill was briefed on matters related to the investigation of Dr Brown.
Once Chancery Legal became involved, he said the focus was on the rights of the patients as it relates to privacy.
Meanwhile, the BPS denies claims that officers accessed the medical files seized from Dr Brown’s clinics.
In a statement issued last week, Police Commissioner Stephen Corbishley said the BPS acted strictly according to court-ordered protocol as agreed by lawyers for Dr Brown’s clinics and the patients.
“If the clinics and others are under a misunderstanding as to the position in relation to the protocol, their misunderstanding is not due to any fault of the BPS,” said Mr Corbishley.
“The BPS is fully observant to both the required undertakings in these matters and the sensitivities in respect of patient confidentiality.
“In this regard, examination of evidence is being facilitated by an independent overseas expert and the BPS has no access to the material within patient files.”
Police seized the medical records of 265 patients from both clinics in February 2017 as part of the ongoing multi-million dollar investigation that has yet to produce formal charges against Dr Brown or his clinics.
A group of 150 patients, represented by Chancery Legal, were given permission to intervene in the case in November last year, in a bid to block access to the files seized and to get them returned.
Back in February, the parties involved agreed to a protocol that allowed the selected files of 75 patients to be uploaded to a secure server, set up and managed by the UK National Crime Agency.
It was also agreed that once the files were uploaded, the BPS would have no further access and two independent doctors; appointed by the BPS, would have access to the files to prepare reports on whether patients were over-scanned.
In a letter to the patients, Bermuda Healthcare Services and the Brown-Darrell Clinic maintained “the BPS have undertaken not to access your files”.
The Court of Appeal ruling is expected to be delivered within the next two weeks.