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Health Privacy Update: What is a “bad faith” request for access to health records?

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In a new health privacy decision of the Information and Privacy Commissioner of Ontario, we find out what needs to be proven to show a patient is making a request for access to health records in “bad faith”.

Decision 87:  Interprets “Bad Faith” Requests

A patient saw a chiropodist at a foot clinic. The patient wanted a copy of his health record and was given “all the notes on file”. The patient thought there should be more records and made a complaint to the IPC.

The foot clinic admitted there was another record of a “biomechanical assessment” but refused to provide a copy to the patient. The clinic concluded the patient was making the request in bad faith because the patient had not paid for the services rendered to him by the clinic. The clinic also concluded the request for access could result in a risk of serious harm.

The IPC ordered the foot clinic to provide the patient with a copy of the record.

This is the first time the provision of a bad faith request under PHIPA has been interpreted by the IPC.

Bad faith has been defined as: “The opposite of “good faith”, generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfil some duty or other contractual obligation, not prompted by an honest mistake as to one’s rights, but by some interested or sinister motive. … “bad faith” is not simply bad judgement or negligence, but rather it implies the conscious doing of a wrong because of a dishonest negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.”

The patient had not paid the clinic. The patient had told the clinic he didn’t intend to actually use the custom orthotics but needed the documentation for a dispute with the Ministry of Health and Long-Term Care. The clinic alleged the patient intentionally misled them about the purpose of his visit.

The IPC concluded that to find bad faith, the foot clinic had to prove the request for access to the health record was made in bad faith – not that the patient engaged in bad faith activities to receive services. The clinic failed to prove bad faith for the request for a copy of the report.

Neither could the clinic prove there was a risk of serious harm in providing the patient with a copy of the record. The clinic stated that if it released the biomechanical assessment, the patient might give it to an unregulated person who could harm the patient in the delivery of orthotics. The IPC concluded that harm was at best speculative and at worst unlikely.

Bottom Line: A patient’s right of access to their health records is foundational. “Good” patients have the right and “bad” patients have the same right. “Bad” behaviour by a patient (such as not paying their bills) does not equate to a bad faith request for health records.  

Want to read about other decisions of the IPC? Click here to get my free up-to-date Summary of all the IPC’s PHIPA Decisions.

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