Shaky Legal Ground

The courts have generally ruled that although a patient's right to privacy in their medical information and records is not absolute, “[t]he court must determine whether the societal interest in disclosure outweighs the privacy interest involved. To avoid a constitutional violation, the government must show a compelling state interest in breaching that privacy.” [Doe v. Borough of Barrington, 729 F. Supp. 376, 385 (1990)].

The Department of Health's defense is also weak because it fails to acknowledge the fact that diabetes “is not a single disease, but a cluster of disorders that share certain common features, the most characteristic of which is elevated levels of the sugar glucose in the blood.”² Because not all forms of diabetes are preventable, the New York City Health Department's justification for its actions in the name of “diabetes prevention” is delusional.

In addition to the constitutional questions raised by the plan, the city's public hearing appears to have been little more than a charade that the Health Department was obliged to do in order to implement its surveillance program. But it seems clear that there was never any intention of considering the comments received from the public, as the plan was implemented with no changes from what was originally proposed. In spite of the issues raised at the public hearing, the Health Department passed the proposed changes to the city Health Code on December 14, 2005 and no provisions were made to enable patients to “opt out” of having their medical information included in the registry. A strong argument can be made that the hearing itself was misleading and is therefore invalid because details on the plan were not disclosed, and attendees were permitted to ask questions, thus citizens of the City lead to believe that provisions would be made to permit patient opt-outs. Voluntary participation was offered to patients enrolled in the Vermont Diabetes Information System, the program the New York City Department of Health and Mental Hygiene supposedly modeled its A1C registry after, except that the NYC A1C Registry does not permit patients to "opt out" of participation. These elements may help form a legal basis for challenging the plan in a court of law.