The Law on Privacy and Patient Confidentiality
Regulated health professionals in Ontario include occupational therapists, nurses, physiotherapists, massage therapists, physicians, psychologists and many others. All of these professionals must practice their crafts by following established standards and principles of practice. Patient confidentiality is an important component of the standards of practice of any regulated health professional in Ontario. Confidentiality is important both because it allows the health professional to provide better patient care and because confidentiality is a legal requirement.
Better Patient Care
It is important that a patient be confident that their personal information will remain confidential. This allows a trusting relationship to be created. Patients who trust their health care practitioner are much more likely to provide complete and truthful information which, in turn, allows the health care provider to provide better treatment.
The legal requirements for patient confidentiality are set out by the Personal Health Information Protection Act, 2004 (“PHIPA”), S.O. 2004, c. 3.
Section 4 of PHIPA defines personal health information as follows:
“personal health information”, subject to certain exceptions, means identifying information about an individual in oral or recorded form, if the information,
a. relates to the physical or mental health of the individual, including information that consists of the health history of the individual’s family,
b. relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual,
c. is a plan of service within the meaning of the Long-Term Care Act, 1994for the individual,
d. relates to payments or eligibility for health care in respect of the individual,
e. relates to the donation by the individual of any body part or bodily substance,
f. is the individual’s health number, or
g. identifies an individual’s substitute decision-maker.
“identifying information” means information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual.
In general, a regulated health professional can only disclose a patient’s personal health information when he or she has the express consent of the patient or the patient’s substitute decision maker and the disclosure is necessary for a lawful purpose. The only occasions on which a regulated health professional can disclose a patient’s personal health information without the patient’s express consent are where such disclosure is permitted by legislation or required by law.
When can you disclose patient information without consent?
Wherever possible you should seek the patient’s consent before disclosing personal health information. However, there are still occasions on which personal health information must be disclosed without the patient’s consent.
For example, PHIPA allows for disclosure of personal health information under exceptional circumstances if it is reasonably necessary for the provision of health care and it is not reasonably possible to obtain the patient’s consent in a timely manner. In addition, if the disclosure of personal health information is necessary to eliminate or reduce a significant risk of serious bodily harm to a person or group of persons. The disclosure may be made to police, and in some instances, to the intended victim.
On occasion, the police, a private law firm or a Crown attorney will approach a regulated health professional and request confidential patient information. Express consent from the patient (or their substitute decision-maker) is ordinarily required before police, private practice lawyers or a Crown attorney are legally entitled to any personal health information. However, the police can obtain a search warrant requiring production of confidential health information. In the case of a search warrant it is important to record the police officer’s name, badge number etc. while also taking a photocopy of the search warrant for your file. Ordinarily the police will take the original records and leave a photocopy with the health practitioner.
In addition, a private practice law firm or Crown Attorney may obtain a Court Order or issue a summons to witness requiring production of personal health information. If that occurs, it is important for the health practitioner to read the Court Order or summons to witness carefully and not to do more than is legally required. For example, a summons to witness may require a regulated health professional to attend a court on a particular date and time and to bring with them the clinical notes and records of a specific patient. The summons to witness does not authorize the regulated health care professional to discuss the patient’s care with, or show the record to, anyone in advance of the court appearance.
Due to space limitations, it is not possible to provide an exhaustive list of all situations in which a regulated health professional must disclose personal health information without the consent of a patient. This is a complex area of the law. Whenever there is uncertainty, a regulated health professional should consult a lawyer, his or her professional college and/or the Information and Privacy Commissioner of Ontario for further direction.
View original article in Rehab Magazine – Page 28
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