Health Privacy Update – November 2017 – 4 new decisions of the IPC

The Information and Privacy Commissioner of Ontario released four new PHIPA decisions today. These are relevant to any health care organization in Ontario.

Read the summaries of all 60 IPC PHIPA Decisions here.

Decision 57: A patient made an access request at a hospital. The patient wanted to know why he was being told by physicians at the hospital to seek care somewhere else and why the chiropodist refused to see him.  In particular, he wondered “what’s on my medical record that is the basis for telling me to go back to the other hospital”. The hospital gave the patient access to his emergency records and other visits.  He believed there should be additional records. After the IPC became involved, the hospital agreed to do a further search and found there were no records of one episode and produced a copy of previously released notes. He wanted any notes, emails or letters generated during a particular time period in the Out Patient Clinic.  The hospital did a further search and notified the patient that they were withholding certain records because they were not dedicated primarily to the PHI of the complainant and included PHI about others.

The IPC supported the decision of the hospital. The records related to emails between hospital staff and contained health information about the complainant. The IPC considered the test for whether a record is “dedicated primarily to the PHI of the complainant”. The records were not dedicated primarily to the PHI of the patient. And there was PHI of other individuals. The hospital was right to withhold those records. The IPC considered whether the hospital completed a “reasonable search” and concluded it had.

Bottom Line:  This decision is consistent with previous IPC decisions. No changes needed to your practices. 

Decision 58: On behalf of herself and other siblings, a sister asked a hospital for a copy of her deceased brother’s health records. The brother’s death was “unexpected”. The hospital declined because they were not authorized to release.  After the IPC got involved, the hospital reconsidered its discretion under s. 38(4)(b) and (c) and released some records about the circumstances of death and to assist them to make decisions about their own care.  The sister wanted more detailed information.

The IPC upheld the decision of the hospital. The disclosure of a deceased person’s records under s. 38(4)(b) and (c) is discretionary and not mandatory. The IPC considered the meaning of “circumstances of death” and concluded that the hospital fulfilled its statutory requirements under s. 38(4)(b) and did not have to release additional information to the sister that went beyond information relating to the circumstances of death. The IPC also concluded that the hospital had fulfilled its obligations to consider its discretion under s. 38(4)(c). The sister was unable to establish that she and her siblings reasonably required the additional information to make decisions about their own care.

Bottom Line:  This decision is consistent with previous IPC decisions. No changes needed to your practices. 

Decision 59: A hospital received a correction request to make 5 changes to 3 Progress notes written by different clinicians. The hospital denied the correction requests stating that the entries reflected the professional opinions of its clinicians, made in good faith. The patient said the entries are a “fraud against his good character”.

The IPC upheld the hospital’s decision. The IPC concluded that the patient’s requests reflected his desire to have the notes better explain what he was intending to communicate to the clinicians who authored the notes. But, the complainant did not establish that the records were inaccurate or incomplete for the purposes for which the hospital uses the information.

Bottom Line:  This decision is consistent with previous IPC decisions. No changes needed to your practices. 

Decision 60: A physician received a correction request to change two records: a 15-page patient/profile report and a 5-page subjective objective assessment plan (SOAP). The physician agreed to make 5 changes to the SOAP report reflecting typographical errors and incomplete sentences but refused to make the other changes.

The IPC upheld the physician’s decision. The complainant did not establish that the records were inaccurate or incomplete for the purposes for which the physician uses the information.

Bottom Line:  This decision is consistent with previous IPC decisions. No changes needed to your practices.