Healing, not squealing: recent amendments to Alberta's Health Information Act.

• Author: Bailey, Tracey M.

Introduction

Disclosure of personal health information by health professionals to police is an issue that is becoming the subject of increasing discussion and legislative reform in Canada. For example, Ontario's provincial government brought legislation into force in 2005 requiring the reporting of gunshot wounds. (1) The new federal Quarantine Act allows for disclosure of personal information (including health information) to peace officers in circumstances where they are investigating specific offences under the Criminal Code. (2) And in Alberta, an amendment to the Health Information Act (3) [HIA] has recently come into force that permits disclosure of health information by custodians (4) to police to "protect public health and safety." (5) In this essay, we relate the legislative history of this amendment and argue that it is both unwise and unconstitutional.

The Amendment

The relevant provision of the amended HIA, s. 37.3, is worded as follows:

(1) A custodian may disclose individually identifying health information referred to in subsection (2) without the consent of the individual who is the subject of the information to a police service or the Minister of Justice and Attorney General where the custodian reasonably believes

(a) that the information relates to the possible commission of an offence under a statute or regulation of Alberta or Canada, and

(b) that the disclosure will protect the health and safety of Albertans.

(2) A custodian may disclose the following information under subsection (1):

(a) the name of an individual;

(b) the date of birth of an individual;

(c) the nature of any injury or illness of an individual;

(d) the date on which a health service was sought or received by an individual;

(e) the location where an individual sought or received a health service;

(f) whether any samples of bodily substances were taken from an individual.

Under this section, information relating to a health services provider from whom health services were sought or received may also be disclosed without the consent of that health care professional. (6)

Legislative History

Prior to the amendment, the HIA permitted custodians of health information to disclose personal health information to police as follows:

* service with a subpoena, warrant or other court order (s.35(1)(i));

* an investigation of an offence surrounding life-threatening injuries to a person if the individual suffering from the injuries does not object to such disclosure (s.35(1)(j)); or

* to avert or minimize an imminent danger to a person's health or safety (s.35(1)(m)). (7)

Police have expressed frustration with their perceived lack of ability to obtain health information since the implementation of this legislation. (8) They have lobbied for changes to broaden the circumstances in which they can acquire information without the need to obtain a warrant, and made submissions to the Select Special Health Information Act Review Committee [Select Special Committee] which considered the amendments to be made to the HIA. (9) Specifically, they requested the addition to the HIA of a provision similar to that found in other Alberta privacy legislation which allows personal information to be disclosed to the police to assist with an investigation. (10) The provisions found in the Personal Information Protection Act [PIPA] and the Freedom of Information and Protection of Privacy Act [FOIP] are extremely broad. They allow police to potentially obtain personal information (including health information under the jurisdiction of those two statutes) without first obtaining a warrant or establishing individualized suspicion. If this request had been granted, it would have meant similar potential to obtain health information governed by the HIA. (11)

In the alternative, police asked that custodians be given the discretion to release registration information (12) as defined by the HIA. The provision of registration information to police would make the task of obtaining a warrant for further health information far easier in certain circumstances. For example, if an individual was suspected of impaired driving, but was taken to hospital from the scene of a motor vehicle collision for treatment, being able to confirm that she was at a particular hospital could be used together with evidence of the attending officer to obtain a warrant to procure further information.

The police made three sets of arguments justifying their proposals. In our view, none is convincing. First, they submitted that since they have access to personal information under other provincial legislation, it is inconsistent to not also have access under the HIA. As we develop in more detail below, however, health information is a particularly intimate category of personal information, and the law has long been sensitive to the dangers posed when health practitioners share it with police.

Second, they argued that before the enactment of the HIA, they could lawfully obtain much of this personal information from health care professionals. In their submission, the enactment of the HIA sharply curtailed what had been acceptable practice. This is simply inaccurate. Though the practice of health professionals and institutions may have been to provide information to police in a variety of circumstances, (13) the common law was more restrictive of disclosure of health information to police than the pre-amendment HIA. In fact, the HIA essentially codified two instances of acceptable disclosure that existed at common law (court order and disclosure in the public interest in safety (14)) and created a new category which expanded the circumstances in which personal health information could be disclosed to police (investigating life threatening injuries (15)).

Third, the police gave a number of examples purporting to show that the HIA prevented reasonable access to health information. They suggested, for example, that the HIA prevented disclosure when police were looking for a missing person without any evidence of any offence having been committed. However, while the HIA did not provide for health information to be released in such a case, neither would have amendments requested by police. In another example, police suggested that the HIA curtailed their ability to investigate cases of suspected child abuse. Other legislation already existed, however, permitting disclosure in such cases. (16) In the most compelling example cited, that of the suspected impaired driver as discussed above, access to the information sought could be gained without changes to the legislation; for instance, by ensuring that a police officer accompanied the suspect to the hospital.

Comments on the Amendments as Passed

The Bill that emerged from the Select Special Committee and was enacted into law did not include the specific amendments requested by police. It did, however, greatly expand the circumstances in which certain types of individually identifying registration, and diagnostic, treatment and care information may be disclosed to police without the consent of the individual to whom the information relates. While the Bill did not include a broad provision like that under FOIP or PIPA, it also provided much more than mere registration information. This was despite submissions from many groups of healthcare professionals, regional health authorities and others, arguing in large part against any change in the disclosure provisions and showing support for the previous status quo. (17) It also appeared to dismiss the findings of a survey of Albertans conducted in 2003 by the Office of the Information and Privacy Commissioner in which 86% of the respondents stated that consent should be obtained before personal health information was disclosed to the police. (18)

As indicated above, the amendment to the HIA set out in s. 37.3 gives custodians a discretion, rather than an obligation, to disclose this information when they "reasonably believe" that: (i) the information relates to the "possible" commission of an offence; and (ii) the disclosure will protect "health and safety."

The legislation provides no guidance, however, as to how health care providers are to make these decisions. As we discuss in more detail below, to require them to assess whether they reasonably believe that an offence may have been committed places a burden on them that they may not be trained to discharge. Such an inquiry also changes the nature of the provider/patient interaction. The health care professional's proper focus is to provide appropriate treatment to the injured or ill individual--not determine if an injury may have been the result of a criminal or other illegal act.

It is also unclear how practitioners are to assess whether disclosure will protect the "health and safety of Albertans." What exactly does this refer to? One possibility is that it refers only to the risk of a specific and tangible future harm to others. If this is correct, the amendment has done very little to alter the status quo. The ability or duty to disclose to protect others from harm already existed in many forms in the HIA and in other legislation. As mentioned, the HIA already gave custodians the discretion to disclose to anyone (including police) to avert an imminent danger to a person's health or safety. (19) Other legislation also mandates or permits disclosure in cases of children in need of protection, (20) individuals with communicable diseases, (21) unfit drivers, (22) and other situations. While these statutes do not always allow information to flow directly to police, they do provide means to address the risk of harm to the health and safety of individuals.

Another possibility, however, is that the amendment permits custodians to disclose when they reasonably believe that it will help to prevent the general harms generated by criminal activity. The amendment can be read, in other words, as authorizing disclosure to increase the likelihood that...