2.1.4 Privacy and Discrimination
Privacy can be closely linked to issues of discrimination in the mental health context because a person’s mental health status – such as their psychiatric diagnosis or record of encounters with health services – can be used in ways that are leveraged against them, including by potential employers, insurers, and state agencies
CASE STUDY: Privacy and Border Discrimination
In 2017, Canadians with a documented history of mental health hospitalisations and particularly suicide attempts were being refused entry at the US border.237 An inquiry by the Office of the Privacy Commission of Canada found that the Toronto Police had collected non-criminal mental health data and shared it with several government agencies—eventually it was shared with US Customs and Border Protection.238 US border officials used the information (again, which was non-criminal in nature) to refuse entry to several Canadian citizens into the US. The Office of the Privacy Commissioner of Canada determined that ‘both the specific and systemic aspects of the complaints [were] well-founded’, meaning that the Royal Canadian Mounted Police, which had stewardship of the database, failed to respect the Privacy Act rights of the complainant.239
This troubling case study highlights how privacy laws can be used to protect the sharing of data concerning people’s mental health. However, privacy laws in many countries were generally written prior to the explosion of algorithmic and data-driven technologies and are therefore unlikely to provide robust protection for people’s data concerning health in many places. One challenge is that privacy law and policy in various countries contain different definitions of ‘personal data’ and ‘sensitive personal data’, which means various forms of data concerning a person’s mental health, distress and disability may or may not be protected