- 1: How will going to Divisional Court change the Constitutional rights of patients?
- 2: What difference does it make? Everything is online anyway.
- 3: What do the courts have to say about protecting private information?
- 4: Where can I learn more about Privacy Rights?
1: How will going to Divisional Court change the Constitutional rights of patients?
Our case is challenging the unlawful search and seizure of our personal information by the CPSO:
First, we are asking the Court to quash (stop) the CPSO investigation.
The CPSO has said in court, “the Constitution doesn’t apply to us.”
This is a shocking assertion and would place them above the law.
It is also inaccurate.
The CPSO has restrictions on their power, and they must operate within their own rules, without exceptions. There is never a time for unlawful conduct.
It does not matter what the circumstances are, whether a climate emergency, a municipal issue or even a pandemic – we must ensure our Constitutional rights are protected at all times.
Everyone, including the CPSO, must always act lawfully.
Privacy is a core human right. Human rights must always be preserved and protected – no exceptions!
Second, we are also asking the Court to clarify that privacy is protected by the Charter, and even in circumstances where there is a CPSO investigation, there is still a requirement to obey the law.
The CPSO is NOT above the law.
It must act in accordance with the Charter. An investigation can be done without breaching our privacy. There is no foreseeable reason why names/information are required to investigate an act of misconduct or negligence.
Medical records can be provided when it is authorized by law. This requires that the CPSO must justify and specify the relevance of our information to its investigation. The CPSO cannot have our names, or any other information that is private, sensitive, and irrelevant to the specific allegations under investigation.
2: What difference does it make? Everything is online anyway.
Not all records are online. For those that are, rules exist to protect your privacy and confidential information.
In general:
1) confidential and private information can only be shared where there is informed consent, and, for the benefit of the patient;
2) if and when personal health information is shared (e.g. between a doctor and a specialist), there are strict rules (e.g. data is depersonalized or coded to minimally impair breach of privacy).
When an investigation is initiated on the basis of a third-party non-patient complaint there must be some independent evidence of harm or injury to justify a breach of privacy of the patient without their knowledge or consent.
The CPSO is not abiding by these rules.
1) The information is demanded without our knowledge and/or consent and it is being collected for the CPSO’s benefit (for an unknown/ulterior motive) and not for our benefit
2) And the CPSO has prohibited our Doctor from depersonalizing/redacting.
We cannot allow these general “golden rules of privacy” to be broken by the CPSO. This type of action that does not follow appropriate conducts and code is a slippery slope.
Apart from these general rules, there are specific differences in our case:
1) Our records are not electronic or on-line already. Our information is in physical records.
2) If we do consent to release, we do so for specific circumstances and for our benefit (eg. referral to a specialist by requesting or consenting to our doctor, or if we make a complaint against our doctor and waive our privacy).
3: What do the courts have to say about protecting private information?
The Supreme Court of Canada has already set out a test to balance the right of Canadians to be protected against unlawful search and seizure of their private information, and the requirement to disclose that information in a legal proceeding in the case R. v. O’Connor.
We propose that the O’Connor principles apply in Ontario and across all provinces in accordance with the Supreme Court of Canada. In essence, we want to ensure that “our personal information is private. If anyone is going to use it, then there must be lawful justification. I have a right to know, and a right to present my objections to how or why it’s being used.”
Personal and health information can only be made available with these caveats. We must fight to preserve these caveats. If we do not, we have no protection from our information being misused and abused by those in authority, including government and corporations.
4: Where can I learn more about Privacy Rights?
CPSO Policy Protecting Personal Health Information
(www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Protecting-Personal-Health-Information)
Your Health Privacy Rights in Ontario
(www.ipc.on.ca/health-individuals/file-a-health-privacy-complaint/your-health-privacy-rights-in-ontario)
Information and Privacy Commissioner of Ontario
(www.ipc.on.ca/privacy-individuals)
A Guide to the Personal Health Information Protection Act (December 2004) Ann Cavoukian, Commissioner
(www.ipc.on.ca/wp-content/uploads/Resources/hguide-e.pdf)
Personal Health Information Protection Act, 2004, (PHIPA)
(www.ontario.ca/laws/statute/04p03)
Freedom of Information and Protection of Privacy Act (MFIPPA)
(www.ontario.ca/laws/statute/90f31)
Ministry of Health and Long Term Care Sample Consent Form
(www.health.gov.on.ca/english/providers/project/priv_legislation/sample_consent.html)
Guide to the Charter of Rights and Freedoms
(www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html)
Constitution Act, 1982
(laws-lois.justice.gc.ca/eng/Const/page-15.html)
The Universal Declaration of Human Rights
(www.un.org/en/about-us/universal-declaration-of-human-rights)
The International Covenant on Civil and Political Rights
(www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights)
The Canadian Medical Protective Association: Who owns the medical record?
(www.cmpa-acpm.ca/serve/docs/ela/goodpracticesguide/pages/communication/Documentation/who_owns_the_medical_record-e.html#:~:text=In%201993%20the%20Supreme%20Court,a%20physician%20in%20priv%20ate%20practice)
Canadian Medical Protective Association - Expectations of Physicians in Practice: Who has custody of medical records and who can they be shared with? Preserving the security and confidentiality of patient health information
(www.cmpa-acpm.ca/en/advice-publications/browse-articles/2018/who-has-custody-of-medical-records---and-who-can-they-be-shared-with)
Canadian Medical Protective Association - Expectations of Physicians in Practice: Did you know? You need authorization to provide medical records to lawyers.
(www.cmpa-acpm.ca/en/advice-publications/browse-articles/2018/did-you-know-you-need-authorization-to-provide-medical-records-to-lawyers)