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Correction Requests: Applying the “Professional Opinion/Observation” Exception

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IPC Decision 178 is a correction request submitted by a wife on behalf of her husband. The husband was a client of a LHIN and had undergone a home case assessment, following which, a determination was made that he was not eligible for increased hours of personal support services. The wife sought changes to the inter-RAI home care assessment form (which gave rise to the determination) on the basis that the assessor asked very few questions of her husband, and that he did not get to participate fully because he is non-verbal.

The LHIN agreed to make some changes, namely those where the complainant was able to demonstrate that the information in the inter-RAI assessment was inaccurate or incomplete for the purposes of the home care assessment (for example, self-reported parts of the assessment where the assessor directly asked the patient or his caregiver for information). The IPC found that these changes were appropriate in the circumstances, and in line with the requirements of section 55(8) of PHIPA.

However, the LHIN declined to make changes to the contents of the assessment that constitute professional opinion or observation. Upon review of the assessment contents and hearing from both parties, the IPC determined that the remaining elements of the assessment were responses/scores that the social worker had assigned through the exercise of clinical judgment, based on interactions with the patient, his caregiver, observation of the patient in his home, and information provided by other healthcare providers. The IPC concluded that the requests for changes to these sections were affectively an attempt to rewrite the assessor’s opinions and observations. The IPC upheld the LHIN’s decision not to make these changes, based on the exception for professional opinions at section 55(9) of PHIPA.

The IPC confirmed that once a custodian has established that the information qualifies as a “professional opinion or observation,” the onus is on the individual seeking a correction to establish that the “professional opinion or observation” was not made in good faith and should be corrected. The IPC found no evidence of bad faith, malice, intent to harm, carelessness or recklessness.

Key Takeaway Messages for Health Privacy Officers:

  • Where the information sought to be corrected is a professional opinion or an exercise of clinical judgment, it does not matter whether the complainant perceives the information to be incomplete or inaccurate. The exception in section 55(9) of PHIPA protects professional opinions unless there is evidence of bad faith; and
  • When responding to complaints, we should be mindful of what the patient is trying to achieve. In this case, the patient brought a correction request hoping that it would affect the LHIN’s service decision, but that was not effective. The IPC was only able to adjudicate this decision vis-à-vis the information contained in the report. It had no ability to address the resulting service decision made by the LHIN, despite that decision being made in reliance on the contents of the report. The patient’s disagreement with the decision not to offer more service hours would fall under the jurisdiction of the Health Services Appeal and Review Board but no proceeding was initiated in that forum. Outcomes are often tempered by the forum in which complaints are brought and adjudicated – we should keep these limitations in mind as we offer solutions to patients and as we navigate and respond to their complaints

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