Ontario Court Requires Notice to Non-Parties Whose Privacy Interests at Stake in Production Dispute

25 Aug

On August 15th, the Ontario Superior Court of Justice deferred a motion for production of medical records so two non-parties could be given notice of the production motion.

The action was by a patient of a psychiatric facility who was allegedly assaulted by two other patients. The facility resisted production of records in its custody based on a concern for the privacy of the non-parties, but also did not dispute the records’ relevance.

Mr. Justice Ricchetti ordered production of occurrence reports that recorded facts pertaining to the alleged assaults without requiring notice. Ricchetti J. suggested that the records contained information that was as much about the plaintiff as the two non-parties. He also recognized the occurrence reports were not about the provision of care though they were placed in both of the non-parties’ patient records. Though these factors led him to order production without notice to the non-parties, Ricchetti J. did order the non-parties’ attending physicians to be given notice and an opportunity to object based on criteria for doing so set out in the Mental Health Act, ordered redaction of names and identifying information and ordered receiving counsel to safeguard copies of all information received.

Regarding production of other medical records, Ricchetti J. ordered that notice be given to the affected non-parties. He said:

Rule 30.10 of the Rules of Civil Procedure requires that any motion seeking third party disclosure be on notice to the third party. The real third party in this case are the patients. The purpose of this rule is to ensure that the party whose documentation is to be disclosed has an opportunity to object or consent or request some limitation on the disclosure. This purpose, in my view, is defeated if the “real” owner or person with the “real” interest in the disclosure of the documentation or information is not given notice.

I cannot imagine why a request for disclosure of the patient’s medical records containing PHI should not be on notice to the patient. It is the patient’s PHI, protected by the PHIPA, that disclosure is sought.

In my view, where an order is sought under s.41(1)(d) of the PHIPA or s.35(5) of the MHA, such an order should be obtained, if at all possible, on notice to the patient whose record is sought and not just the custodian of the patient’s medical records containing the PHI.

This is a sensible application of the power over procedure. Note, however, that health information custodians are authorized under PHIPA to disclose personal health information for the purpose of providing production without any notification requirement. Is notification “if at all possible” in the event of dispute too conservative and too costly? Should courts require health information custodians (who are accountable to privacy regulators under statute) to attempt to negotiate a reasonable scope of production and reasonable protective terms before stepping in? These are important questions that are yet to be answered.

M.L. v. Homewood Health Centre Inc. et al, 2011 ONSC 4790 (CanLII).

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