AuthorHalyna N. Perun; Michael Orr; Fannie Dimitriadis
1 S.O. 2004, c. 3, Sch. A. [PHIPA].
2Ibid., s. 29. Circumstances in which the custodian may collect, use, and disclose per-
sonal health information without consent are discussed in Chapters, 8, 9, 10, & 11.
3 For example, see the Mental Health Act, R.S.O. 1990, c. M.7, s. 35 [MHA]; the Long-
Term Care Act, 1994, S.O. 1994, c. 26, s. 32 [LTCA]; Hospital Management, R.R.O.
1990, Reg. 965, ss. 22–23.2, made under the Public Hospitals Act, R.S.O. 1990, c.
P.40 [PHA]; s. 95 of General, R.R.O. Reg. 832, made under the Nursing Homes Act,
R.S.O. 1990, c. N.7 [NHA]. These statutes and regulations also contained a number
of other provisions pertaining to consent to disclosure of patient information prior to
1 November 2004; they were repealed with the coming into force of PHIPA.
The Personal Health Information Protection Act1requires a health information
custodian who collects, uses, and discloses personal health information about
a patient to obtain the patient’s consent to do so, unless the Act permits or
requires the collection, use, or disclosure without consent.2
Generally, before PHIPA came into force, health information custodians
were comfortable with rules that require them to seek a patient’s consent for
the disclosure of personal health information. They were also accustomed to
considering whether a law allowed them to disclose such information without
consent. A variety of legislation applicable to specific categories of health infor-
mation custodians include rules governing such disclosures.3On the other
hand, the duty that PHIPA imposes on health information custodians to con-
sider whether they require a patient’s consent for the collection or use of per-
sonal health information has created, for most custodians, a new legal
A patient’s consent provides sufficient authority for a custodian to collect,
use, or disclose personal health information about the patient only where the
collection, use, or disclosure is, to the best of the custodian’s knowledge, nec-
essary for a lawful purpose.4
“Consent” at issue in PHIPA is consent that a health information custodian
needs with respect to a transaction concerning personal health information, not
one that a custodian may need in order to administer treatment. Although this
distinction may be self-evident, at times the two types of consents are confused.
Consent in PHIPA may be “express” or “implied,” unless the Act specifical-
ly sets out that it must be express.5PHIPA defines neither the term “express
nor the term “implied.” The differences between these two terms are explained
further in this chapter, but it is worth noting at the outset what these phrases
mean.6“Express consent” means a consent that is explicitly provided — either
orally or in writing. “Implied consent” means a consent that a custodian con-
cludes from a patient’s action or inaction in particular circumstances. The rules
governing when a health information custodian requires express consent and
when a custodian may rely on an implied consent are explained below.
PHIPA, Part III addresses what constitutes “consent” under the Act and what type
of consent a health information custodian requires in particular circumstances.7
Where PHIPA or any other Act requires the consent of a patient for the col-
lection, use, or disclosure of personal health information by a health informa-
tion custodian, the consent must fulfil the requirements of PHIPA.8For
example, if a health information custodian who is a regulated health profession-
al requires the consent of the patient to disclose information about his or her
4PHIPA, s. 29. The meaning of what is “necessary for a lawful purpose” and other lim-
iting principles are outlined in Chapter 7.
5PHIPA, s. 18(2).
6 See Section D below.
7PHIPA, ss. 18–20. More specific rules pertaining to consent for fundraising and mar-
keting are addressed in Part IV in ss. 32 & 33 and in General, O. Reg. 329/04, s. 10
[PHIPA Regulation].
8PHIPA, s. 18(1). See further, Chapter 3, section B(2).
Consent 197
patient to a College within the meaning of the Regulated Health Professions Act,
19919[RHPA College], that consent must meet the requirements of PHIPA.10
This general provision concerning the elements of consent does not require
a health information custodian to review, as of 1 November 2004, all collections,
uses, and disclosures of personal health information made with consent prior to
that date and obtain new consents for ongoing collections, uses, and disclosures
in all cases. The custodian may rely on the transitional provision in PHIPA,
which provides that a consent that a patient gave the custodian before 1 Novem-
ber 2004 is a valid consent if it meets the requirements of the Act for consent.11
A consent under PHIPA, whether implied or express, must:
be a consent of the individual,
be knowledgeable,
relate to the information, and
not be obtained through deception or coercion.12
It is necessary to examine each of these elements in turn.
1) “Consent of the Individual”
The first element of a consent is that it must be “a consent of the individual,” that
is, a consent that the individual provides.13 A health information custodian may
presume a patient is capable of consenting to the collection, use, or disclosure of
the patient’s personal health information, unless it would not be reasonable to pre-
sume so in the circumstances.14 However, if the patient is not capable, PHIPApro-
vides rules for obtaining consent from someone else on the patient’s behalf.15
2) “Knowledgeable” Consent
An important element of consent to the collection, use, or disclosure of person-
al health information is that the consent be “knowledgeable.”16
9 S.O. 1991, c. 18 [RHPA].
10 See s. 85.3(4) of the Health Professions Procedural Code [RHPA Code] set out in
Schedule 2 to the RHPA, ibid, which provides that the name of a patient who may have
been sexually abused may not be disclosed to the College without the patient’s consent.
See further how this Act interacts with other statutes in Chapter 3, Section B(2).
11 PHIPA, s. 18(7).
12 Ibid., s. 18(1).
13 Ibid., s. 18(1)(a).
14 Ibid., s. 21(4).
15 Capacity and substitute decision-making are addressed in Chapter 6.
16 PHIPA, s. 18(1)(b).

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