Patient's Right of Access to Records of Personal Health Information
| Author | Halyna N. Perun; Michael Orr; Fannie Dimitriadis |
| Pages | 508-542 |
508
1 CSA Privacy Code 4.9, Principle 9, Individual Access. “CSA Privacy Code” is the term
commonly used to refer to the Code incorporated in Schedule 1 of PIPEDA, below note
2, which is officially entitled “Principles Set Out in the National Standard of Canada
Entitled Model Code for the Protection of Personal Information, CAN/CSA-Q830-96.”
2 S.C. 2000, c. 5. [PIPEDA].
3Ibid., ss. 8–10 and s. 4.9 of Schedule 1.
A. RIGHT OF ACCESS: BACKGROUND
1) Access as a Fundamental Privacy Right
An individual’s ability to see the information that an organization has com-
piled about the individual and require its correction is a cornerstone of fair
information practices. Principle 9 of the CSA Privacy Code articulates this fun-
damental rule: “Upon request, an individual shall be informed of the existence,
use, and disclosure of his or her personal information and shall be given access
to that information.”1
The Personal Information Protection and Electronic Documents Act2incorpo-
rates Principle 9 of the CSA Privacy Code and sets out a procedure for individ-
uals to obtain access to their personal information held by organizations
subject to PIPEDA.3Industry Canada has indicated that the provision of the
right of access to one’s information is one of the key factors in determining
13 Patient’s Right of Access
to Records of Personal
Health Information
whether provincial privacy of personal information legislation is substantially
similar to PIPEDA, so as to justify an order dispensing with compliance with
PIPEDA for those organizations covered by the provincial legislation.4
2) The Supreme Court of Canada’s Position on a Patient’s Right
of Access
Canadian courts have clearly held that patients have a right of access to infor-
mation about themselves, subject to limited exceptions. In 1992, the Supreme
Court of Canada in McInerney v. MacDonald,5held unanimously that patients
have such a right based on physicians’ fiduciary obligations to their patients.
The patient, Mrs. MacDonald, had requested the contents of her complete med-
ical file from Dr. McInerney. Dr. McInerney gave Mrs. MacDonald copies of all
reports and medical records she had prepared herself, but refused to provide
copies of reports she had received from other physicians, stating that those
reports were the property of the other physicians and that it would be unethical
for her to release them. Mr. Justice La Forest, for the Court, held that the own-
ership of the tangible records lies with the person that compiles them. Howev-
er, “the patient is entitled to reasonable access to examine and copy the records,
provided that the patient pays a legitimate fee for the preparation and reproduc-
tion of the information.”6The Court noted that the patient confides sensitive
information to the doctor and has an interest in what happens to that informa-
tion. In sharing information with the physician, the patient entrusts this infor-
mation to the physician. The trust-like beneficial interest that the patient has in
the information gives rise to a right of access and the physician has a correspon-
ding obligation to provide the information. The patient’s right of access applies
both to information produced by the attending physician and to information
contained in the patient’s medical record produced by other physicians.7
3) Right of Access in Other Ontario Legislation
Well before the landmark decision in McInerney v. MacDonald, psychiatric
patients in Ontario’s psychiatric facilities already had a legislated right to
Patient’s Right of Access to Records of Personal Health Information 509
4 Notice (Department of Industry), “Personal Information Protection and Electronic
Documents Act, Process for the Determination of ‘Substantially Similar’ Provincial
Legislation by the Governor in Council,” C. Gaz. (3 August 2002), online:
6Ibid. at 159.
7Ibid. at 152.
access their clinical records. Amendments made in 1986 to the Mental Health
Act provided that a “mentally competent” psychiatric patient, which included
an out-patient and former patient, had a right to examine and copy his or her
clinical record, at his or her own expense.8
The procedure set out in the Mental Health Act was replicated in the Long-
Term Care Act, 1994 for clients’ personal health records in the custody or con-
trol of service providers, but the Long-Term Care Act, 1994 also extended the
right of access to all patients, whether or not they were “mentally competent.”9
Since 1988, the Freedom of Information and Protection of Privacy Act10 has
provided a mechanism for individuals to obtain access to information about
themselves held by government institutions.11 In 1992, with the coming into
force of the Municipal Freedom of Information and Protection of Privacy Act,12 the
procedure for obtaining access to records extended to municipal homes for the
aged and, in time, ambulance services as well as to public health units.
4) Codifying the Right of Access in Most Health Care Settings
Although the Supreme Court of Canada decision in McInerney v. MacDonald
established a patient’s clear right of access to his or her own health records,
without clear procedural rules in place, and a practical and inexpensive means
of enforcement,13 it was often difficult for patients to exercise their rights. The
of access and sets out a uniform procedure by which patients may obtain access
to records of their own personal health information virtually anywhere in the
Guide to the Ontario Personal Health Information Protection Act
510
8Mental Health Act, R.S.O. 1990, c. M.7 [MHA]; see ss. 35(1) and 36(1). Repealed by
ss. 90(6) and 90(12), respectively, of the Personal Health Information Protection Act,
2004, S.O. 2004, c. 3, Sch. A [PHIPA]. In s. 1(1), the MHA defined “mentally compe-
tent” as “having the ability to understand the subject-matter in respect of which con-
sent is requested and able to appreciate the consequences of giving or withholding
consent.” Repealed by PHIPA, s. 90(1).
9Long-Term Care Act, 1994, S.O. 1994, c. 26, s. 36 [LTCA]. Now repealed by PHIPA,
s. 89(14).
10 R.S.O. 1990, c. F.31 [FIPPA].
11 Ibid., ss. 10 and 21.
12 R.S.O. 1990, c. M.56 [MFIPPA].
13 Enforcing the common law right of access requires the use of the courts, which can
be very expensive and time consuming, meaning that it is effectively out of the reach
of most patients in ordinary circumstances.
14 S.O. 2004, c. 3, Sch. A [PHIPA].
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