Privacy and Privilege

AuthorKate Dewhirst and Richard D. Schneider
Privacy and Privilege
Kate Dewhirst and Richard D. Schneider
e forensic mental health system relies heavily on the exchange of personal health information in order
to facilitate the provision of health care, protect the public, and determine appropriate placements for
forensic accused. Privacy laws and the legal concept of “privilege” impact on this exchange and deter-
mine the extent to which personal health information is permitted to ow between health care organ-
izations, clinicians, the courts, tribunals, and the public. Health care providers, administrators, expert
witnesses, and consultants should understand the basic tenets of privacy, condentiality, and privilege.
“Privacy” is widely accepted as a human right comprising social, physical, and informational elements:
Privacy is a human right with a grand tradition, both nationally a nd internationally. It is recognized in
the Canadian Charter of Rights and Freedom s and such internal human rights instruments as the Univer-
sal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Classica lly
understood as the “right to be let alone,” privacy in today’s high-tech world has taken on a multitude of
dimensions. According to certain privacy ex perts, it is the right to enjoy private space, to conduct private
communications, to be free from surveillance and to respect the sanctity of one’s body. To the ordinary
Canadian, it is about control — the right to control one’s personal information and the right to choose
to remain anonymous. Privacy is a core human value that goes to the very heart of preserving human
dignity and autonomy. It is a precious resource because once lost, whether intentionally or inadvertently,
it can never be recaptured. (House of Commons Standing Committee on Human R ights and the Status
of Persons with Disabilities, 1997, at 85)
ese privacy rights may be curtailed for forensic mental health patients under certain circumstances;
for example, forensic mental health patients may not be entitled to private space or unfettered private
communications, and may be subject to surveillance.
A. Privacy and Personal Health Information
Privacy, with respect to health information, relates to an individual’s rights to control the collection, use
and disclosure of, and access to, her information. In today’s world of electronic health records, shared in-
formation systems, and the unprecedented sharing of personal details through online forums and social
media, privacy protections are essential to individual autonomy.
Health information privacy rights are established through a web of legislation, regulations, profes-
sional standards, and common law. Many provinces in Canada have enacted health privacy legislation
to codify privacy rights and create oversight bodies (usually Information and Privacy Commissioners) to
Kate Dewhirst and Richard D. Schneider
ensure those rights are protected. Most health privacy legislation gives individuals a right to (with some
• control who collects their personal health information and how that information is used and to
whom it is disclosed;
• access their personal health information;
• ask for corrections to be made to their personal health information; and
• complain about a custodian’s privacy practices, privacy breaches, or how their personal health infor-
mation is being managed.
In this chapter we will use Ontario as our frame of reference. Not all Canadian provinces have
comparable legislation. Health care providers, administrators, expert witnesses, and consultants will
be expected to be generally familiar with the provisions of mental health and privacy legislation in the
jurisdictions where they provide services.
Ontario’s health privacy legislation is called the Personal Health Information Protection Act, 2004
(PHI PA). It creates common privacy rules across the health sector. e Mental Health Act has additional
privacy rules that apply to psychiatric patients (including former patients, out-patients, and former out-
patients and anyone who is or has been detained in a psychiatric facility) (MHA, s. 35). If following both
PHI PA and the Mental Health Act creates a conict of laws, there is a provision in the Mental Health Act
that states the Mental Health Act applies over PH IPA (MHA, s. 34.1; PHIPA , s. 7(2)).
With the introduction of PHI PA in Ontario in 2004, we moved from condentiality rules under the
Mental Health Act as it existed at that time, to privacy protections. e focus under the former Mental
Health Ac t regime was on a care provider’s responsibility to protect information from unauthorized dis-
closures (i.e., to individuals and organizations outside a specic mental health facility or oce). Under
PHI PA and the amended Mental Health Act, the focus is on an individual’s right to control how his per-
sonal health information is collected, used and disclosed (subject to some exceptions).
“Personal health information” means any identifying information (oral or recorded) about an in-
dividual including information about (among other things) an individual’s physical or mental health
(including family history), health care provider, health number, body parts or bodily substance, or tests
or exams, and substitute decision maker’s name (PHI PA, s. 4(1)). In the forensic mental health context,
personal health information includes all records in the custody or control of a clinician or facility that
relate in any way to the individual’s physical or mental health. is includes all clinical notes, reports
prepared for Review Board and Consent and Capacity Board hearings, family history, information that
links the individual to a clinician or facility, and transfer or placement records between facilities.
B. Health Information Custodians
Health privacy legislation usually identies a group of providers to whom the legislation provides addi-
tional rights and obligations. In Ontario, PHI PA identies “health i nformation custodians” to whom the
privacy rules and responsibilities apply. All Ontario psychiatric facilities under the Mental Health Act a re
health information custodians under PHIPA, as are all public hospitals and community mental health
centres, programs, and services whose primary purpose is the provision of health care (PHIPA, ss. 3(1)(4)
(i) & 3(1)(4)(vii)). All psychiatrists and other physicians, nurses, psychologists (in fact all regulated health
professionals), and social workers and social service workers in private practice are also health informa-
tion custodians (PHIPA, s. 3(1)(1)). Where a clinician is employed by or works on behalf of a facility that
is a health information custodian, the clinician acts as an “agent” of the health information custodian
for purposes of PHI PA. ere are many PH IPA tools available to assist health information custodians

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