Health Information

AuthorBarbara Von Tigerstrom
Pages437-494
437
CHAPTER 7
HEALTH INFORMATION
As a subcategory of personal information, health information is sub-
ject to many of the same sources of law discussed in earlier chapters,
including potential civil claims for unauthorized access or disclosure
and legislation governing its collection, use, disclosure, and protection
in the public and private sectors. Information about our health is, how-
ever, commonly understood to be one of the most sensitive types of
personal information,1 and it is often shared in the context of profes-
sional relationships that carry special legal and ethical obligations. At
the same time, there are compelling reasons to use and share health
information for a range of purposes, such as providing and adminis-
tering health care and conducting research. As a result of this unique
combination of factors, there are specific legal and ethical duties and
pieces of legislation that apply to this category of information.
A. LEGAL AND ETHICAL OBLIGATIONS OF
HEALTH CARE PROFESSIONALS
Information about a person’s health is often collected and generated
through interactions with health care professionals who have distinct
ethical and legal obligations by v irtue of their roles and their therapeutic
1 See, for example, McInerney v MacDonald, [1992] 2 SCR 138 at para 18 [McInerney];
Jones v Tsige, 2012 ONCA 32 at para 72 [Jones v Tsige].
INFORM ATION AND PRIVACY LAW IN CANADA438
relationships with patients or clients. Regulated health care profes-
sionals must follow codes of ethics and professional standards that are
set and enforced by professional associations and regulatory bodies.
In Canada, health care professions are “self-regulating,” meaning that
members of the profession take a leading role in governi ng entry to the
profession and standards of conduct for its members, with input and
oversight from the public and provincial or territorial governments.
Professional bodies have authority under provincial/territorial legis-
lation to carry out these functions, including the power to undertake
disciplinar y proceedings and impose penalties for professional miscon-
duct. This means that ethical standards adopted by the profession can
be enforced, with legal sanctions for non-compliance, if non-compli-
ance is found to constitute misconduct. Ethical obligations of confiden-
tiality could therefore have legal as well as moral force.
Other legal consequences could follow from the common law or
equitable duties that health care professionals owe to their patients.
They will in most circumstances owe duties of care that, if breached,
could become the subject of a claim in negligence. In some instan-
ces, there will also be an express or implied contractual relationship
between provider and patient. In addition, the relationship between
patients and at least some health care professionals notably phys-
icians, according to the Supreme Court of Canad a (SCC) — is fiduciary
in nature, a relationship of trust and confidence in which the profes-
sional must act in the patient’s best interests.2 All of these legal dut-
ies are relevant to the obligations of health care professionals to keep
health information confidential and to give patients reasonable access
to their own health information.
1) Obligations of Confidentiality
The codes of ethics of the medical and other health professions include
an ethical obligation to maintain the confidentiality of patients’ infor-
mation. For example, the Code of Ethics and Professionalism of the
Canadian Medical Association requires doctors to
18. Fulfill your duty of confidentiality to the patient by keeping
identifiable patient information confidential; collecting, using, and
disclosing only as much health information as necessary to benefit
the patient; and sharing information only to benefit the patient and
within the patient’s circle of care.
2 McInerney, above note 1; Norberg v Wynrib, [1992] 2 SCR 226.
Health In formation439
and to
21. Avoid health care discussions, including in personal, public, or
virtual conversations, that could reasonably be seen as revealing
confidential or identifying information or as being disrespectful to
patients, their families, or careg ivers.3
Exceptions to the duty of confidentiality include “situations where the
informed consent of the patient has been obtained for disclosure or as
provided for by law.4 The Code of Ethics for Registered Nurses sets
out a detailed list of ethical responsibilities regarding privacy and con-
fidentiality, including collecting, using, and disclosing health informa-
tion only “on a need-to-know basis”; limiting disclosures to what is
necessary for a par ticular purpose; protecting health in formation when
communicating with others or using information technology or social
media; and not abusing access to health care records.5 Similar obliga-
tions are included, with varying levels of detail, in the relevant codes
for other professions, such as psychology,6 dentistry,7 and pharmacy.8
The legal obligation to maintain confidentiality of patient informa-
tion is also well recogn ized. A 1928 decision of the SCC, Halls v Mitchell,
remains one of the leading authorities, despite the fact that the main
3 Canadian Medic al Association, “Code of Eth ics and Professionalis m” (Decem-
ber 2018), online: http://policybase.cma.ca/dbtw-wpd/Policypdf/PD19-03.pdf
[CMA, “Code of Ethics”].
4 Ibid at para 18.
5 Canadian Nurse s Association, “Code of Ethic s for Registered Nurses” (Ottawa:
Canadia n Nurses Association , 2017), online: www.cna-aiic.ca/html/en/Code-of-
Ethics-2017-Edition/index.html at 14 –15.
6 Canadian Psychological A ssociation, “Canadi an Code of Ethics for Psychol-
ogists,” 4th ed (Ottawa: C anadian Psychological A ssociation, 2017), online:
https://cpa.ca/docs/File/Ethics/CPA_Code_2017_4thEd.pdf at 16– 17.
7 See, for example, Alber ta Dental Associat ion & College, “Code of Ethics” (Octo-
ber 2007), online: www.dentalhealthalberta.ca/wp-content/uploads/2019/03/
ADAC-Code-of-Ethics.pdf at 7; College of Dental Surgeons of Br itish Columbia,
“Code of Ethics” (May 2015), online: www.cdsbc.org/CDSBCPublicLibrary/Code-
of-Ethics.pdf at 2; Royal College of Dental Sur geons of Ontario, “RCDSO Code
of Ethics,” online: www.rcdso.org/en-ca/rcdso-members/your-responsibilities/
code-of-ethics at para 15.
8 S ee, for example, Alberta College of Ph armacy, “Code of Ethics” (2014), online:
https://abpharmacy.ca/sites/default/files/CodeofEthicsBooklet_May2014.pdf,
Principle 4 [AB College of Ph armacy, “Code of Ethics”]; College of Pharma-
cists of Brit ish Columbia, “Code of Ethics — Detailed” (2016), online: http://
library.bcpharmacists.org/6_Resources/6-1_Provincial_Legislation/5019-Code_
of_Ethics_Detailed.pdf at 5; Ontario College of Ph armacists, “Code of Eth-
ics” (December 2015), online; www.ocpinfo.com/library/council/download/
CodeofEthics2015.pdf at paras 2.9, 3.6, and 4.7

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