Transcript No Slide Title

Understanding Privacy in the
Context of Mental Health:
The Family Perspective
May 3, 2008
Justice and Mental Health Conference
Mary Jane Dykeman
Barrister & Solicitor
Background
Personal Health Information Protection Act,
2004 came into force on November 1, 2004.
A mandatory 3-year review of PHIPA is about
to begin.
Framework of PHIPA
Part I: Interpretation and Application
Part II: Practices to Protect PHI
Part III: Consent, Capacity & Substitute
Decision-Making
Part IV: Collection, Use & Disclosure of PHI
Part V: Access to and Correction of Records of
PHI
Part VI: Administration and Enforcement
Part VII: General
Part VIII: Complementary Amendments
Part IX: Commencement and Short Title
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Key Concepts
• What PHIPA covers, what it does not
• Health information custodian (HIC) – who is one,
who is not
• Personal health information (PHI) inside and
outside the ‘clinical record’
• Identifiable PHI
• Mixed record
• Health care
• Collection
• Use v. disclosure
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Key Clinical Issues
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Indirect Collection
Consent: Express, Implied, or No Consent
Withdrawal of Consent
‘Lockbox’ for (internal) Use and (external)
Disclosure of PHI
• Access & Correction
• Research
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Role of Privacy Commissioner
• Information and Privacy Commissioner
(IPC) has broad powers to investigate,
make an order based on complaint or on
own initiative
• 5 significant IPC orders to date:
– improper disposal of records
– abandoned records
– improper access to health records
– stolen laptop containing PHI
– wireless camera in methadone clinic
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Express Consent
• Consent must be express if PHI given
to non-HIC
• Examples of non-HICs: lawyer,
insurance company, employer, family
member who is not an authorized
substitute decision-maker
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Implied Consent
• If HIC provides notice of its collections,
uses and disclosures of PHI, PHIPA
allows the HIC to assume that clients are
“knowledgeable” and rely on their implied
consent
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Implied Consent – cont’d
• If a HIC receives PHI from a client, the
client’s substitute decision-maker or
another HIC
• May then collect, use or disclose the PHI
based on implied consent for health care
purposes unless aware client has
withdrawn the implied consent (sharing
between HICs commonly referred to as
“circle of care”)
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No Consent Required
• PHIPA sets out numerous circumstances in
which a HIC has the right to collect, use and
disclose PHI without first obtaining consent
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Lockbox
• As with “circle of care”, term “lockbox”
does not appear in PHIPA
• Refers to HIC’s ability to use and
disclose PHI without consent in
circumstances related to health care
• BUT individual can ask the HIC to
shield certain parts of the record
• Recipient must be informed that
records are incomplete
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Lockbox
• Reminder: ‘lockbox’ provisions apply only
in context of health care, NOT
– Where necessary to disclose PHI to reduce or
eliminate significant risk of serious bodily harm
– To identify who is the substitute decision-maker
– Where disclosure is mandatory under other Acts
(including duty to report child abuse; or to report to
public health authorities)
– As otherwise permitted or required under PHIPA
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Lockbox Dilemmas
• Client instructs HIC not to give PHI
externally to assist in his/her care (e.g. to
another physician involved in his or her
care)
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Is my family member a client?
• If a client is capable, can instruct
the hospital not to tell people
he/she is in the hospital
• Many hospitals will release name,
location and status unless client
tells them not to
• Many mental health facilities do the
opposite – will neither confirm nor
deny the person is there
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Collection Dilemmas
• General rule is that you may only collect
PHI from someone other than the
individual if you have consent; or the
Commissioner has approved; or you have
other legal authority to collect indirectly; or
if you cannot get the information you need
accurately or in a timely way
• If capable, patient could later instruct
caregiver not to use or disclose that
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information
Capacity
• Individuals are presumed to be capable
• When in doubt, care provider must
determine whether the client is capable
to collect, use and disclose PHI
• Test for capacity
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Substitute Decision-Making
• If client is incapable to consent to
collection, use or disclosure of PHI, turn to
list of decision-makers in PHIPA
• If there is already an SDM for treatment,
admission to a care facility or personal
assistance services under the Health Care
Consent Act, that person is also the SDM
for related information decisions
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Access to PHI
• Clients may make a written request for
access to PHI wherever it is held (e.g. team
member’s notes outside client’s file)
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Correction of PHI
• Clients may request that you make
corrections to a record of PHI
• HIC may deny if:
– Professional opinion made in good faith
OR
– Original record was not the HIC’s and HIC
lacks sufficient authority, knowledge or
expertise to make the requested change
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Case Scenarios
• Elderly female client with possible addictioninduced paranoia but who may actually be
subject to domestic abuse
• Husband comes to hospital asking for a copy
of his wife’s record from a particular
admission
• Is he the authorized substitute decisionmaker?
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Case Scenarios
• Equally ranked children/siblings of a client
cannot agree on a treatment, placement or
information decision
• First question always: has the client actually
been found incapable?
• Staff can request that the family get it together
and communicate a decision
• Public Guardian and Trustee decision-maker
of last resort for treatment (“may” act re: PHI)
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Mental Health and Addictions
Privacy Toolkit
• Project led by CMHA Ontario Division
• Advisory Group of various addictions /
mental health representatives
• Focus on plain language, Q&As specific
to addictions and community mental
health, templates
• Available at: www.privacytoolkit.ca
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Other Resources
• Information and Privacy
Commissioner’s website: www.ipc.on.ca
• Ministry of Health website:
www.gov.on.ca/health
• Consent and Capacity Board website
(www.ccboard.on.ca)
• www.advocacycentreelderly.org
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Mary Jane Dykeman
Barrister & Solicitor
(416) 949-5356
[email protected]
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