Dr Brown on Court of Appeal Ruling: ‘We Are Prepared For a Marathon’

The man at the centre of the ongoing investigation into alleged over-diagnosing for financial gain that led to police raids and the seizure of confidential medical records of patients, says the legal battle to get those records back is not over.

Hard on the heels of the Court of Appeal ruling that barred lawyers Mark Pettingill and Victoria Greening from representing the patients involved, when contacted by Bermuda Real, former Premier Dr Ewart Brown said: “We are prepared for a marathon.”

Meetings were held last week to discuss the next course of action on the part of the patients, who maintain that their right to privacy has been violated by the seizure of confidential medical records that they have yet to obtain from the police.

They too were barred from having their choice of legal representation, in the most recent case surrounding a police investigation spanning years, which to date, has produced no formal charges, at the expense of Bermuda’s taxpayers to the tune of millions.

In follow-up to the ruling, Bermuda’s Court of Appeal President, Sir Christopher Clarke released the reasons for the Court’s ruling last week.

The written ruling cites the Court’s reasons for the decision to uphold the Supreme Court order that barred the two lawyers from representing the patients of Bermuda Healthcare Services and Brown-Darrell Clinic.

The two attorneys represented 150 clients whose health records were seized with others during two police raids on Dr Brown’s clinics – Bermuda Healthcare Services and the Brown-Darrel Clinic back in 2017.

Both Dr Brown and  BHCS Medical Director, Dr Mahesh Reddy have consistently denied any wrongdoing.

Lawyer Mark Diel, who appeared for the Bermuda Police Service, argued that Mr Pettingill and his colleague, a former Attorney General and a former Crown counsel, both had conflicts of interest due to the jobs they previously held.

The Court of Appeal dismissed the appeal on June 21. The written judgement was published online last Tuesday, June , but the written judgment was not published online until Tuesday, June 25.

“In general terms,” Sir Christopher said: “Looking at the matter in more general terms, there would seem to be an inherent conflict when Chancery Legal are intent on showing that the actions of the police in seeking, obtaining and executing the warrants were unlawful and a disgrace, in circumstances where Mr Pettingill/Ms Greening, as the judge has found, received information in their professional capacity from the BPS about the progress of that investigation.”

The judge said Mr Pettingill did not dispute that he had been briefed on the investigation into Dr Brown.

He quoted a statement by Mr Pettingill when he said: “I have no idea what information I could possibly have, that would give the intervener any advantage to their files being unlawfully seized by the BPS in 2017 and as relates to strategy other that my assessment that a certain contingent of the BPS was obsessed with endeavouring to find any evidence they could against Dr Brown.

“This assessment is likely to have been derived, at least in part, from what he learnt in the communications between the BPS and him,” he added.

“It would seem, of itself, to be of assistance to the patients and to the disadvantage of BPS.”

The Court of President also said that Ms Greening could not dispute that she was present at a meeting where confidential information was disclosed about the investigation.

“The fact that she was present at that meeting in late 2014 is difficult to square with her suggestion that the possibility of her joining the specialist team was mooted shortly after the beginning of her employment in April 2014 but never taken forward.

“In addition, her observation about the incompetence of the investigation is difficult to square with the proposition that she played no effective part in relation to it,” said Sir Christopher.

He concluded that the ruling handed down in the Supreme Court was justified “unless it is satisfied that there is no risk of disclosure”.

“The burden of proof on the BPS is not a heavy one. The burden on Chancery Legal is a heavy one,” he added.

“The judge was entitled to take the view that BPS had discharged the former and that Chancery Legal had not discharged the latter.”

The next course of legal action on the part of the patients in their bid to get their medical records back is now being determined by the parties involved.