Doctor-Patient Confidentiality

Q:

I keep seeing private information about COVID-19 patients circulating on social media… is there a law to stop this from happening?

A:

Interestingly, I have been thinking about this topic since the Opposition Leader, Kamla Persad-Bissessar, released information on the first COVID-19 related death in Trinidad & Tobago a couple weeks ago… and then again when apparently that same person’s medical history was later circulated on social media.

It was clear that the medical information I’m referring to (and I assume you are as well) could have only originated from the person’s confidential medical record, and thus shared by a medical professional. And if that medical professional was a doctor, they would have acted in breach of the Medical Board of Trinidad and Tobago Code of Ethics in the Practice of Medicine.

In addition to that specific breach for a doctor, and for any other medical professional who could have released the information, for privacy laws in Trinidad and Tobago, we have the Data Protection Act 2011:

4. The object of this Act is to ensure that protection is afforded to an individual’s right to privacy and the right to maintain sensitive personal information as private and personal.

Section 2 defines the term “sensitive personal information” to mean information on a person’s–

(a) racial or ethnic origins;

(b) political affiliations or trade union membership;

(c) religious beliefs or other beliefs of a similar nature;

(d) physical or mental health or condition;

(e) sexual orientation or sexual life; or

(f) criminal or financial record;

For a breach of patient confidentiality by doctor employed at a public institution, a person may be able to place that liability on the hospital/regional health authority:

40. (1) A public body shall not process sensitive personal information unless it obtains the consent of the person to whom that sensitive personal information relates.

But if there’s a breach of the doctor-patient confidentiality in the doctor’s private capacity, the following sections should apply:

69. A person who—

 (a) collects, retains, manages, uses, processes or stores personal information in Trinidad and Tobago;

 (b) collects personal information from individuals in Trinidad and Tobago; or

 (c) uses an intermediary or telecommunications service provider located in Trinidad and Tobago to provide a service in furtherance of paragraph (a) or (b),

shall follow the General Privacy Principles set out in section 6 in dealing with personal information.

Those General Privacy Principles are:

6. The following principles are the General Privacy Principles which are applicable to all persons who handle, store or process personal information belonging to another person:

…

(c) knowledge and consent of the individual are required for the collection, use or disclosure of personal information;

…

(e) personal information shall only be retained for as long as is necessary for the purpose collected and shall not be disclosed for purposes other than the purpose of collection without the prior consent of the individual;

…

(g) personal information is to be protected by such appropriate safeguards having regard to the sensitivity of the information;

(h) sensitive personal information is protected from processing except where otherwise provided for by written law;

…

With all that being said, these are the penalties for breaching the provisions of the Act:

95. (1) A person who commits an offence under this Act is liable upon—

(a) summary conviction, to a fine of not more than fifty thousand dollars or to imprisonment for a term of three years; and

(b) conviction on indictment, to a fine of not more than one hundred thousand dollars or to imprisonment for a term of not more than five years.

Criminal Offences for Infecting others with COVID-19

Q:

Can persons like Crime Watch host, Ian Alleyne and the police officer from the Arouca Police Station be arrested for potentially putting so many people’s lives at risk by not abiding by the government’s mandatory self-quarantine directive?

A:

This is a VERY interesting question!

There are possibly two offences under which both individuals and others like them can be charged and prosecuted:

GRIEVOUS BODILY HARM

According to section 12 of the Offences against the Person Act 1925, as amended:

12. Any person who unlawfully and maliciously by any means whatsoever wounds or causes any grievous bodily harm to any person… is liable to imprisonment for fifteen years.

Grievous Bodily Harm (GBH), in simple terms, is defined as “really serious harm”. Therefore, considering the permanent (if not fatal) damage being done by the novel coronavirus, reckless or intentional transmission of the virus to another person can be classified as really serious harm. A similar interpretation was used in the case of R v Dica [2004]at the England & Wales Court of Appeal:

The person bringing the appeal against his initial conviction (the Appellant), Mr. Mohammed Dica, was HIV-positive. He engaged in unprotected sexual intercourse with two women, both of whom later tested positive for HIV.

It was not clear whether the women (the Complainants) were aware of the Appellant’s HIV status at the time of the encounters; however, the prosecution did not argue that the Appellant intended to transmit HIV to the Complainants, instead, they argued that he was “reckless” as to whether they might contract the disease.

The trial court withdrew from the jury the issue of whether the Complainants knew the Appellant was HIV-positive and thus consented to the risk of transmission of the disease, and subsequently held that whether or not the Complainants knew the Appellant was HIV-positive was irrelevant because they did not have “the legal capacity to consent to such serious harm.”

The Appellant was convicted of two counts of causing grievous bodily harm and sentenced to eight years’ imprisonment.

Whilst there is a possibility that Crime Watch host, Ian Alleyne and the police officer from the Arouca Police Station can be charged with GBH, only a good legal test in court will determine if GBH can apply to non-sexually transmitted infectious diseases like COVID-19.

 TERRORISM

The second possible charge comes under the Anti-Terrorism Act 2005, as amended:

A “terrorist” includes a person who—

(a) commits a terrorist act by any means directly or indirectly, unlawfully and wilfully;

…

 A “terrorist act” means—

(a) an act whether committed in or outside of Trinidad and Tobago which causes or is likely to cause—

(i) loss of human life or serious bodily harm;

(ii) …

(iii) prejudice to national security or disruption of public safety including disruption in the provision of emergency services or to any computer or electronic system or to the provision of services directly related to banking, communications, infrastructure, financial services, public utilities, transportation or other essential infrastructure, and is intended to—

(iv) …

(v) …

…

Furthermore, if intention can be proven (which is unlikely):

22. (1) A person who, unlawfully and intentionally uses, threatens or attempts or conspires to use chemical, biological or nuclear weapons—

(a) against a citizen of Trinidad and Tobago or a person ordinarily resident in Trinidad and Tobago while either such person is outside Trinidad and Tobago;

(b) against any person within Trinidad and Tobago; or

(c) against any property that is owned, leased or used by the Government of Trinidad and Tobago, whether the property is within or outside of Trinidad and Tobago, commits an offence and is liable on conviction on indictment to imprisonment for life.

According to the World Health Organisation, Biological weapons are microorganisms like virus, bacteria, fungi, or other toxins that are produced and released deliberately to cause disease and death in humans, animals or plants. 

Bioterrorism attacks could also result in an epidemic, for example if Ebola or Lassa viruses were used as the biological agents. 

The terrorism charge is less likely considering the fact that the ‘intentional’ factor does not seem to exist in either case, but, similar to the United States, it may be considered in extremecases where intention is palpable.

Employment Termination during Pandemic

Q:

What are my legal contractual obligations towards my employees who are unable to work due to the novel coronavirus pandemic that has caused the government to shut down many businesses, including mine?

A:

There are actually two possibilities:

1.     Force majeure (French for "superior force") – In order for this to apply, it must be included as a clause within a written contract of employment between parties.

Essentially, force majeure is a contract provision or clause that allows the affected party to suspend or terminate its obligations under the agreement when certain circumstances beyond their control arise, which, in turn, makes performance:-

                               i.            inadvisable – the legal definition for this term is the same as it is in the dictionary, which basically means that it is imprudent or lacking good sense or judgement.

                             ii.            commercially impracticable - this legal doctrine is triggered when something happens that makes performance of a contractual duty excessively burdensome, unbearably difficult, or extremely expensive, for the party committed to such performance

                          iii.            illegal – this occurs when continued performance will be an illegal act; an example would be operating a bar or casino despite the government passing a law to shut such businesses during the CoViD-19 pandemic.

                          iv.            impossible – this occurs when a party is not able to physically perform its contractual obligations. For example, many flight attendants would be unable to fulfil their contractual obligations due to the fact that several countries have closed their borders, thus halting international air travel.

A typical list of force majeure events might include war, riots, fire, flood, hurricane, typhoon, earthquake, strikes, lockouts, slowdowns, pandemics and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations under the contract.

2.     Frustration of contract – Under this common law doctrine, a contract can be voided when a party to the contract is incapable of performing its obligations due to an unforeseen event, which is no fault of theirs.

I anticipate that most employers will find favour with terminating contracts due to frustration; however, the option of temporary layoffs for the duration of the novel coronavirus pandemic is also a viable option in order to possibly save jobs for when we are all able to return to our regularly scheduled programming.

Coronavirus Church Closures

Q:

Although many pastors/preachers/priests are encouraging churchgoers to attend services despite worldwide advice for social distancing during the novel coronavirus pandemic, is it legal for the government to order churches to close?

 A:

In reality, there is no ban on church services, or other religious gatherings; instead the Public Health [2019 Novel Coronavirus(2019-nCoV)] (No. 3) Regulations, 2020 limits the number of people who can congregate to ten (10).

Nevertheless, the Trinidad and Tobago government may be able to legally ban all religious gatherings in accordance with section 4(h) of The Constitution of the Republic of Trinidad and Tobago:

4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:

…

(h) “freedom of conscience and religious belief and observance”.

Generally speaking, this means that citizens of Trinidad and Tobago have the inalienable and non-derogable right to engage in any religion, or as many religions of their choosing.

However, technically, and in very simple terms, “without discrimination” empowers the government to abrogate those rights and freedoms as long as it is necessary and done to everyone for the greater good without infringing upon the rights of any specific religion or religious group more than others. In reality though, this is more of a restriction on movement, not religion because religious services can still be  legally conducted with the use of technology.

Looking at a similar point of view from America where constitutional rights are fervidly defended, in Employment Division v Smith (1990), even the late Justice Antonin Scalia, who sat on the Supreme Court of the United States for 30 years, stated: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

In other words, one cannot breach valid and proportionate laws because of a belief that there is some sort of constitutional infringement on one's religious freedoms.

So to answer you directly: if the decision is eventually made, it will be legal for the government of Trinidad & Tobago to order a complete ban on religious gatherings at this time.

Trinidad & Tobago Loitering Laws

Q:

According to this Loop News article

“Police Commissioner Gary Griffith is advising citizens that cops will ramp up the enforcement of the country's loitering laws over the coming weeks in an attempt to keep people from assembling in large numbers during the COVID-19 pandemic… in accordance with section 45(c) of the Summary Offences Act 1921, as amended”:

Can this be done?

A:

Let’s begin with what that section of the Act says:

45. A person committing any of the offences mentioned below in this section may be deemed an idle and disorderly person, and shall be liable to a fine of two hundred dollars, or to imprisonment for one month—

 (c) any person found sleeping or loitering in or under any building, including any open outhouse, verandah, gallery, passage, or gateway, or in any vehicle or vessel, without leave of the owner, occupier or person in charge thereof, or on or under any wharf, quay, jetty, bridge, footway, or in any street or other public place, and not giving a good account of himself;

As a result, according to section 46(1)(e) of the Police Service Act 2006, as amended:

46. (1) A police officer may arrest without a warrant— 

(e) a person whom he finds lying or loitering in any public or private place or building and who does not give a satisfactory account of himself;

Now, in order to understand what specific offence is being committed, the definition of ‘loitering’ is important… but guess what, the term is not defined under any of the legislation that make it illegal.   

Sidebar: in keeping with the rule of law, criminal offences must be reasonably clear and definite so as to avoid arbitrary and discriminatory treatment from the police. In America, such laws fall under the 'void-for vagueness doctrine' which was established since 1926 in Connally v General Construction Company and basically means that a law can be held to be void if it is insufficiently defined or not defined at all.

But I digress… without a legislative definition, one can probably check the dictionary to see that ‘loitering’ means to “linger aimlessly”, which of course leaves us to decipher what ‘linger’ and ‘aimlessly’ really mean: ‘linger’ means “to remain or stay on in a place longer than is usual or expected” and ‘aimlessly’ means “without purpose”. In toto, loitering can be defined as “remaining or staying on in a place longer than is usual or expected without a purpose.”

So, now that we have a definition of the term ‘loitering’, what can legally be classified as loitering under normal circumstances (not during the COVID-19 pandemic lockdown)?

• §  People outside a bar drinking? Definitely not!
• §  People ‘liming’ by Caura River? Definitely not!
• §  People relaxing with their families on any of the country’s beaches? Definitely not!

At the end of the day, the law is silly and useless because whatever a person does, it will always be for a purpose... even if that purpose is killing time or hanging out, which is what this High Court judgment attempted to explain. The only way loitering can therefore be in the least enforceable, is if the term is eventually defined to say "without lawful purpose", such as with the case of prostitution. 

In reality, Gary Griffith’s threat of arrest for loitering in the proposed circumstances during this COVID-19 pandemic has no legal validity whatsoever. The Commissioner of Police – and by extension his officers – are intending to exercise executive action through some sort of illegal state of emergency power that will ultimately result in post-coronavirus lawsuits left, right and centre... 

Will we ever learn…?

Pandemic Leave in Trinidad & Tobago

Q:

Do I have to pay my employees whilst they are on ‘Pandemic Leave’?

A:

According to the Chief Personnel Officer, Commander (Ret’d) Daryl Dindial, ‘Pandemic Leave’ only applies to government workers who are (1) parents with no supervision for their children, and; (2) employees who do not benefit from sick leave as part of their employment, in the event, they fall ill, have to be quarantined or eventually are confirmed to have contracted the coronavirus (CoViD-19). 

‘Government workers’ in this instance refers to:

1.     Public Officers – Permanent, temporary, monthly-paid and daily-rated

2.     Fixed Term Contract Employees

3.     Short Term Contract Employees

4.     On the Job Trainees (OJTs)

5.     Office Holders within the purview of the Salaries Review Commission (SRC) (whose Office falls in the Public Service such as Top Managers, Judiciary and Legal Services)

Because you’re asking, I will assume that you are a private sector employer, thus you are not legally obligated to pay your employees for “pandemic leave”… however, if you can pay even a portion of their wages or salaries to assist them during what will be a period of certain economic hardship, please do.