B.C. ministry warned birth alerts 'illegal and unconstitutional' months before banning them
Published Tuesday, January 12, 2021 1:34PM PST Last Updated Tuesday, January 12, 2021 3:56PM PST
A newborn in shown in a neonatal incubator in this file photo. (Pixelistanbul / Istock.com)
Months before British Columbia officially ended the controversial practice of birth alerts, government lawyers advised the Ministry of Children and Family Development (MCFD) that the practice was “illegal and unconstitutional” and posed a “litigation risk,” according to records obtained by IndigiNews.
When a social worker feels an expectant parent may put their newborn at risk, they can issue a “birth alert” or a “hospital alert,” flagging the expectant parent to hospital staff without their consent, and directing them to notify social workers as soon as the baby's born.
MCFD records show that B.C.'s Ministry of Attorney General sent a memo to the ministry on May 6, 2019, confirming that “the use of hospital alerts, and other activities involving the disclosure of information without the consent of expectant parents is both illegal and unconstitutional.”
But the B.C. government didn't ban birth alerts until months later, on Sept. 16, 2019.
If birth alerts aren't legal, this could have important implications for the hundreds, if not thousands, of families across Canada that have been impacted by them.
“It has required intense advocacy to get the health care systems to end this unlawful practice. In the meantime, the unlawful and harmful device has broken up families, created barriers in health care, and disrupted proper positive relationships supporting parents and children,” says Mary Ellen Turpel-Lafond.
The law professor and judge served as B.C.'s Representative for Children and Youth (RCY), an independent advocacy and oversight body, from 2006 to 2016. She also led a recent investigation into the rampant anti-Indigenous racism in B.C.'s healthcare system.
“Apologies and amends are necessary, as there has been harm done, including promoting the stereotypes that Indigenous families require intense surveillance because they cannot safely care for their own children,” wrote Turpel-Lafond in an email to IndigiNews.
Indigenous leaders across the country have long been calling for an end to birth alerts.
“Birth alerts are racist and discriminatory and are a gross violation of the rights of the child, the mother, and the community,” wrote the National Inquiry into Missing and Murdered Indigenous Women and Girls in its final report, published on June 3, 2019.
The inquiry called for “an immediate end to the practice of targeting and apprehending infants (hospital alerts or birth alerts) from Indigenous mothers right after they give birth.”
In B.C., birth alerts result in child apprehension, or the removal of the newborn from their mothers, “approximately 28% of the time,” according to an MCFD record from 2019.
MCFD records show that there were at least 444 birth alerts in B.C. between Jan. 1, 2018 and Aug. 31, 2019. And Indigenous people are disproportionately impacted by these alerts. For example, 58 per cent of parents impacted by birth alerts in B.C. in 2018 were Indigenous, according to MCFD's data.
When former MCFD minister Katrine Conroy announced that MCFD was ending birth alerts, she said this decision was informed by the inquiry's recommendation, as well as calls from Indigenous communities and organizations.
But pressure from Indigenous leaders may not have been the only factor in MCFD's decision making.
Records show that the government was concerned that social workers were breaching parents' privacy rights by sharing their personal information with hospital staff without first getting their consent.
“Disclosure of information to third parties without an expectant parents' consent is not authorised under the 1/8 Child, Family and Community Service Act 3/8 and is a violation of the expectant parents' Charter Rights,” reads a note prepared for senior staff at MCFD in August 2019.
Birth alerts were flagged as a “litigation risk” months before putting a stop to them.
“Although there has been no legal action taken in B.C. since the practice of hospital alerts began, this may create a future litigation risk,” reads a memo prepared for Conroy on June 28, 2019.
IndigiNews sent interview requests to B.C.'s Attorney General and MCFD, but these requests were denied.
IndigiNews instead received a letter on Jan. 8, 2021, from a lawyer acting on behalf of MCFD, requesting that IndigiNews “return the entire records package” and to “refrain from retaining or disseminating those records or its contents in any way.”
According to the letter, the ministry released information about legal concerns related to birth alerts “in error.”
At least one parent in B.C. has complained that her privacy was breached by virtue of a birth alert - and this complaint was investigated and substantiated by B.C.'s Ministry of Citizens' Services (MCS).
This parent alleged, according to internal records, that “MCFD had collected, used and disclosed her personal information without her consent or authorization, and these actions resulted in the removal of the complainant's infant from her custody in October 2017.”
MCS investigated this mother's complaint and determined it was valid. In August 2019, the parent was advised in writing that their “complaint was substantiated.”
When asked what steps were taken after substantiating the complaint, MCFD declined to comment.
“While we can't speak about case-specific matters, the Ministry of Citizens' Services investigates all allegations of privacy breaches. The investigative process is set out in policy and followed diligently in order to ensure that all appropriate actions are taken,” wrote a spokesperson for the ministry.
“We also provided information about the investigation to the Office of the Information and Privacy Commissioner,” they added.
IndigiNews reached out to Micheal McEvoy, B.C.'s Information and Privacy Commissioner, for comment.
“The Commissioner is not in a position to provide an interview,” said a spokesperson via email.
“Our office has looked at this issue, and it is our view that the practice of `birth alerts' is not authorized by FIPPA 1/8 B.C.'s Freedom of Information and Protection of Privacy Act 3/8 . We have confirmed with the Ministry that `birth alerts' are no longer conducted.”
Hundreds, if not thousands, of parents have been the subject of potentially “illegal and unconstitutional” birth alerts - but do they know that?
In order to complain that your privacy was breached by virtue of a birth alert, you have to know that the ministry issued a birth alert with respect to you and your baby.
According to MCFD, the ministry hasn't let parents know that it breached their privacy by issuing a birth alert against them.
“Our focus since we ended the practice of birth alerts has been forward looking. We didn't want to retraumatize affected families by providing notifications of past birth alerts,” wrote a spokesperson to IndigiNews. “Our goal was to ensure the safety of children by ensuring the family had the supports they needed to keep kids safe.”
The ministry is not legally required to notify parents if it breached their privacy. And this is a sore spot for B.C.'s privacy commissioner, according to an emailed statement from the commissioner's spokesperson.
“BC's FIPPA's legislation lacks any mandatory breach notification requirements,” wrote the spokesperson. “That is to say there is no legal obligation on the part of public bodies to report such breaches to our Office or to the individuals involved.
“This is a serious shortcoming in FIPPA and one the Commissioner has called on to be rectified where there exists a real risk of significant harm to an individual. A Special Committee to Review FIPPA will receive submissions later this year and the Commissioner will again repeat his call for these changes.”
As it stands, it's up to MCFD's discretion as to whether to notify parents when their privacy has been breached.
That said, according to MCFD's records, MCS will make a recommendation to MCFD, and it generally recommends notification when the incident “caused harm to impacted individuals,” so they can “exercise their right to request a review of the circumstances by the 1/8 Office of the Privacy Commissioner 3/8 .”
IndigiNews asked MCFD and the MCS whether the removal of a child or the threat of removal amounts to harm, in their view.
Neither ministry responded.
MCFD's records also reveal that MCS “expressed a concern for the systemic nature of the privacy breach associated with hospital alerts which includes the number of potential complainants over the years hospital alerts were issued, and the sensitivity of the personal information shared without consent.”
In B.C., the RCY's mandate is to advocate on behalf of children and youth, including monitoring and reporting on services and conducting independent reviews of injuries and deaths of youth in care.
When IndigiNews asked current RCY Jennifer Charlesworth how she responds to the documents that discuss birth alerts as illegal and unconstitutional, she said: “You're sharing information that I was not aware of.”
Charlesworth did not have anything further to add, stating that she is not a legal professional.
IndigiNews followed up, asking the RCY if they feel that parents whose privacy was breached by virtue of issuing a birth alert are owed anything. Having not seen the documents obtained by IndigiNews, they say that “any decision about potential damages or remedies to families would have to be made by the courts.”
Turpel-Lafond says that for a long time she's taken the position, as an advocate and a law professor, that birth alerts are illegal.
“They give a lot of authority to the child welfare system, but I was never convinced that they gave authority to just, like, openly flag an entire health care system,” she says. “This is an area I've been really worried about in terms of trampling on the fundamental and human rights of Indigenous families.
“In some hospitals and social work teams, 1/8 they 3/8 were just defaulting to birth alerts and actually not working with moms.”
And even though birth alerts have been banned in B.C., their legacy endures, says Turpel-Lafond.
“This alert mechanism set a terrible course of mistreatment in the health care system,” she says. “I still see a lot of issues in the hospital setting, and there's still a lot of stain in that system, like a lot of prejudice and ideas about First Nations people not being good parents.”
She's concerned about the lasting impact of a birth alert on someone's record.
“Since they've ended birth alerts, what have they done with the information that was in the system?”
While investigating anti-Indigenous racism in the health care system, Turpel-Lafond says she heard from Indigenous women who needed cancer treatment, but had trouble accessing it because they were “scarred” by past experiences in the system and “so damaged by the kinds of attitudes and opinions that are freely shared about them.”
As far as notifying parents whose privacy was breached by virtue of a birth alert, Turpel-Lafond can't see an easy path forward. She says many Indigenous people aren't likely to answer a call from the Ministry for Children and Families given the ministry's damning history, and mailing a letter isn't the most secure way of sharing such personal information.
“I do feel like the mess is not cleaned up,” says the judge. “Apologies and amends are necessary.”
Families across the country have been impacted by birth alerts, even though some provinces announced they were cancelling the practice in recent years.
In addition to B.C., Alberta “formally ceased this practice in 2019,” according to a note from a government spokesperson. Manitoba says they stopped birth alerts on July 1, 2020. Ontario committed to “eliminating the practice” by Oct. 15, 2020. Yukon “officially discontinued” the practice in 2019, noting that “the last time a child was taken into care after a `birth alert' in Yukon was in 2017.” And according to a spokesperson for NWT, birth alerts haven't been a practice in the territory for over a decade.
Meanwhile, birth alerts are still being used in Quebec, and social workers have been using them since 2009 according to a spokesperson for the province's Ministry of Health and Social Services.
They're also still being used in Nova Scotia, New Brunswick and Newfoundland and Labrador. But the practice is currently under review in all three provinces, according to statements from government spokespeople.
“When there is a high safety risk to an unborn baby and the family is not voluntarily working with the department, hospital(s) can be asked to alert the department of the birth of the child,” wrote a spokesperson for the Department of Children, Seniors and Social Development in Newfoundland and Labrador.
“However, as a result of recommendations in the Truth and Reconciliation Commission and the Missing and Murdered Indigenous Women and Girls Inquiry to end the practice of sending birth alerts to hospitals, this policy is currently under review.”
PEI aims to stop the practice by the end of this month, according to a spokesperson for its Department of Social Development and Housing.
IndigiNews did not receive a response from Nunavut before this story's publication deadline.
Turpel-Lafond says that if birth alerts aren't legally justified in B.C., the same would go for other jurisdictions.
“That wouldn't just be confined to B.C., that would be anywhere in Canada,” she says.