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ACCESS TO INFORMATION AND PRIVACY - Protection of privacy - Health and medical records - Disclosure

Friday, October 11, 2019 @ 6:16 AM  


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Appeal by JK and LK from a judicial review judgment overturning an adjudicator's finding that the respondent physicians contravened the Health Information Act (HIA). In 2005 and 2006, JK was treated by the respondents. In 2008, JK's mother, LK, filed a complaint with the hospital's department chair regarding the treatment. In order to respond to the complaint, the physicians accessed JK's health information through an electronic database. In 2011, LK submitted a similar complaint to the College. The complaint form signed by JK and LK authorized release of medical information to facilitate the College's investigation into the complaint. The physicians accessed and printed JK's health information and disclosed portions of it to the College. In 2012, the College dismissed the complaint. In 2013, the mother filed a complaint with the OIPC alleging that the physicians' accessing of JK's health information in 2008 and 2012 contravened the HIA. The OPIC held an inquiry. The adjudicator ruled that the use and disclosure of JK's health information breached the HIA, as the access was not for the purpose of providing health services, and was for the physicians' own personal uses, purposes or benefit. The release accompanying the complaint did not authorize anyone other than the College to collect JK's health information. On judicial review, the adjudicator's decision was quashed as unreasonable. The physicians' use of the health information was within s. 27(1)(c) of the HIA as part of a response to a complaint. JK and LK appealed.

HELD: Appeal dismissed. The chambers judge did not err in the application of the reasonableness standard. The chambers judge properly found that the adjudicator unreasonably interpreted s. 27(1)(c) of the HIA in finding that the accessing of JK's health information to respond to a complaint regarding physician care was not a permitted use. There was no finding by the adjudicator, nor any suggestion on the record, that the physicians accessed health information that was not essential to enable the physicians to reply to the complaint and not essential to complete the investigation. The complaint to the College put the physicians' care and diagnoses of JK into issue. The purpose of accessing JK's health information was to respond to the complaint. It was unreasonable to find that the physicians' access was for personal benefit. The physicians' use of JK's health information was in accordance with the HIA.

Gowrishankar v. J.K., [2019] A.J. No. 1167, Alberta Court of Appeal, B.K. O'Ferrall, E.A. Hughes and J. Antonio JJ.A., August 30, 2019. TLD-October72019013