I’m Kate Dewhirst.

I’m a lawyer who writes about legal issues affecting healthcare in Canada

Kate Dewhirst Health Law - bringing the law to life. Meet Kate (in 13 seconds)

Nuanced privacy decision from IPC on access to deceased patient’s records

Posted by

There is a new health privacy decision 75 of the Information and Privacy Commissioner of Ontario.

Bottom line for health care organizations: If a client has died, you have to be careful about the release of health records to the estate trustees under the will.  If the will appoints multiple estate trustees (executors) – you must read the provisions of the will to see if the executors can operate severally (independently) or must act together. If the will does not allow the estate trustees to act independently, you must have all estate trustees’ consent before you release health records to one of them.

This is not necessarily intuitive.

Facts

In this case, a son of a deceased resident in a long-term care home contacted the home to receive a copy of his father’s health records.  The will identified the son as one of two of the father’s estate trustees.

The will did not state that either co-estate trustee could operate independently or “severally” as that legal term is used.

The son was denied a copy of the father’s health record because the will required the consent of both estate trustees. The second son who was also the estate trustee refused to allow his brother access to their father’s health records.

Analysis

On death, an individual’s right of access may only be exercised by the estate trustee (or other person who has assumed responsibility for the administration of the deceased’s estate, if there is no estate trustee).

Relying on case law in other estate contexts, the IPC concluded that if there are several estate trustees or executors, one alone is not allowed to act on behalf of the others if the will requires them to act together. That means to act their decisions must be unanimous.

The IPC upheld the decision of the long-term care home operator to deny the son’s request for a copy of the health record.

Here is a summary of all the IPC’s Decisions to date.


If you enjoyed this article please share it:


Previous and next posts from Kate:

Some of Kate’s recent and upcoming events

Health Privacy Officer training
September 22, 2020

For Privacy Officers within healthcare organizations - now totally online.

This course focuses on how to become a more confident privacy officer and gives you the tools to document your privacy program. Full details and registration here...

Primary care webinars: Employment Law Update & Legal Issues for EDs and Board members

Part of Kate’s monthly webinar series.

Our September program is on privacy litigation and the October program will address harassment issues and scenarios.
Full details of the 2020 webinar series and registration here.

Free healthcare privacy webinar - ask me anything!
the first Wednesday of every month (Off for the Summer - next up: September 2 and October 7)

Free webinars - advance registration needed

Whether you're an experienced privacy officer or new in the field, pick Kate’s brain for free for an hour, in this live webinar. No charge, but you’ll need to register in advance.

Free Part X CYFSA privacy webinar - ask me anything!
the second Wednesday of every month (next up: July 8 and August 12)

Free webinars - advance registration needed

Whether you're an experienced privacy officer or new in the field, pick Kate’s brain for free for an hour, in this live webinar. No charge, but you’ll need to register in advance.

Team Privacy Training Events
July 8, 23, 28 August 4, October 7, 8

For Primary Care clinics, Hospitals, Community Agencies and Children’s Aid

Kate trains health professionals from many more health care organizations how being privacy-respectful can improve therapeutic relationships. More details...

Kate Dewhirst Health Law

Kate says:

My mission is bringing the law to life. I make legal theory understandable, accessible and fun! I’m available and love to work for all organizations in the healthcare sector across Ontario and beyond.

Subscribe to my mailing list and keep up to date with news:

Latest Tweets

[OCT 1] Webinar Series Case Study: Harassment investigations Register now - webinars on legal topics for EDs and ma… https://t.co/lgZdYW7mt6

about 11 hours ago

[STARTS SEPT 22, 2020] Become an even better Privacy Officer! Join my health sector online Privacy Officer training… https://t.co/EfW1pfFy4f

12:02 PM Sep 17th

[OCT 7] Register for my free upcoming Ask Me Anything About Health Privacy webinar at this link...… https://t.co/j63mcVxsHJ

12:02 PM Sep 16th

contact details

P.O. Box 97010 Roncesvalles
Toronto Ontario M6R 3B3

(416) 855 9557

.