The rules for a health practitioner accessing a patient’s personal health information can be complex. In Ontario, those rules are mostly codified in the Personal Health Information Protection Act (PHIPA). The attention to the topic reflects the importance of maintaining privacy of personal health information. However, this complexity can create challenges, not only for practitioners, but also for regulators.
In Martin (Estate) v Health Professions Appeal and Review Board, 2023 ONSC 2993 (CanLII), a patient sued an emergency room physician for a missed diagnosis. The physician only saw the patient once. The patient later discovered that the physician had accessed the patient’s chart several times over a four-year period. The patient complained to the regulator about the unauthorized access. The physician stated one instance was to complete his record of care and that the remaining instances related to preparing his defence to the civil suit. The regulator (and the independent review Board) took no action on the basis that preparation for litigation was an acceptable reason to access the chart.
On appeal, the Court held that the regulator had misread the legislation. In a detailed analysis of PHIPA, the Court found that it was the hospital, not the physician, that was the custodian of the chart. The physician was the agent of the custodian. The rules are different for custodians and agents. While the physician could access the chart to complete his own record of treatment, the physician was not entitled to unilaterally access the chart for litigation purposes. The physician was required to request access from the custodian who would then exercised discretion as to whether to grant the request and whether to impose any restrictions. In fact, guidance published to registrants by the regulator reinforced the distinction between access by custodians and agents of custodians. By unilaterally accessing the chart, the physician was undermining the custodian’s responsibility to protect the privacy of the records.
The physician could have had access to the chart from his lawyers through the litigation process. However, rather than viewing this as a mitigating circumstance, the Court viewed this as another reason why the unilateral access to the chart was contrary to PHIPA.
The Court returned the matter to the review Board for two reasons. First, to consider whether the regulator should have obtained information from the custodian as to its policies and procedures in these circumstances. Second, to issue a decision that took into account a proper understanding of the distinction between custodians and agents under PHIPA.
When it comes to accessing personal health information, regulators need to appreciate the complexities of the law.