Procedure and Criteria for Accessing Mental Health Records

There are significant restrictions upon regulators gaining access to mental health records, especially from a psychiatric facility, without the consent of the patient. A Court order is required. In Laity v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 4557,, there were “allegations that Dr. Laity sexually abused the patient and that he failed to maintain the standard of practice of the profession when he prescribed medication for her”. Dr. Laity was the family physician for the patient. His chart contained two consultation notes from a psychiatrist that were relevant to the allegation of improper prescribing. In fact, an expert opinion on the concern was largely based on the consultation notes. The regulator sought a court order permitting access to the consultation notes. Dr. Laity consented to the order as he wanted to use those records to found a motion for production of the broader psychiatric records of the patient as part of his defence. The patient did not consent to the release of the consultation notes.

The Court said its task was:

to determine whether the disclosure of the documents is essential in the interests of justice. This requires the Court to consider the relevance and probative value of the documents and the parties’ ability to obtain a just determination of the proceeding between them. Weighed against the parties’ interest is the patient’s interest in preserving privacy and confidentiality with respect to very sensitive medical information. The onus is on the applicants to show that disclosure is essential in the interests of justice.

The Court concluded that the notes were essential to the prosecution of the professional misconduct allegations. The Court also concluded that the records were relevant to the proposed defence motion for production of the patient’s broader record.

This case will be of assistance to regulators considering using psychiatric facility records in their proceedings.

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