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