Courts have emphasized the importance of open hearings to Canadian society, which transparency includes prompt access to hearing exhibits. That public access sometimes results in private embarrassment is the price of a free and democratic society. However, the privacy of personal health information is also a basic value in our society. Those values often conflict in discipline hearings and appeals. The Ontario Divisional Court recently balanced these competing concepts in a more detailed than usual decision that will likely provide the framework for this type of analysis by discipline panels and courts for years to come.
In Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 848 (CanLII), the registrant (a physician) appealed a discipline decision. The regulator sought to protect the personal health information of the patients whose records formed exhibits at the hearing. Their proposal was that the exhibits consisting of health records be sealed so that the public would not have access to them and that the other exhibits be redacted to remove identifying information. The regulator also proposed that the publication ban imposed at the discipline hearing, preventing the identifying of patients, would also be continued. The registrant opposed those measures, arguing that merely redacting the information would be adequate, and would be preferable so that the “conduct” of the regulator could be fully scrutinized by the public.
The Court characterized disclosure of personal health information as more than mere personal embarrassment. It was a threat to the dignity of individuals that revealed core aspects of their private lives. The information was protected by targeted health privacy legislation. That regulators had legal access to this information and could use it for their investigations and as evidence in discipline hearings, often without the consent or even knowledge of patients, reinforced the need to effectively protect it. There would be a public expectation that information obtained in this manner would remain confidential.
Thus, the issue was not whether the information would ordinarily be protected but, rather, what protective measures would best balance the competing considerations. In this case, redacting 4,500 pages of patient records “would be time-consuming, subject to error and would delay the hearing of the appeal”. The sealing of the patient records while redacting the other documents, including the hearing transcript, would still enable the public to effectively follow and understand the appeal proceedings, which would still be open to the public. The Court also noted that the patient records contained technical information that would not materially advance the ability of the members of the public to follow the proceedings.
The Court rejected the registrant’s argument that the fact that one of the documents was already in the public domain, apparently contrary to the publication ban, altered the analysis. The Court also did not find persuasive the suggestion that access to the patient files would be a source of instruction to the medical community.
Regulators will want to adapt this contextual analysis when dealing with issues of access to their hearing exhibits.