On August 25th the IPC/Ontario held that a physician retained to complete a Custody and Access Assessment Report was not acting as a health information custodian, thereby giving helpful guidance on an issue that has been subject to great confusion.
The IPC explained:
The definition of “health care practitioner” in section 3(1) is premised on the fact that the health care practitioner must be providing health care. Further, “health care” as defined in section 2 of PHIPA must be for a “health-related purpose.” In my view, on the facts of this particular case, the service provided by Dr. Morris was not provided for a health-related purpose, but rather for the purpose of assisting the parents, and possibly the courts, to develop a parenting plan which would function in the best interests of the child. Therefore, and for the further reasons set out below, I find that Dr. Morris was not providing health care when he provided a service in this capacity. Consequently, I find that Dr. Morris was not a “health information custodian” as defined in section 3(1) for the purpose preparing the Custody and Access Assessment Report. As set out below, this interpretation of PHIPA is consistent with the decision of this office in complaint number HC-050014-1, with the policy behind subsection 20(2) of PHIPA, with the decision of the Federal Court of Appeal in Wyndowe v. Rousseau, and with public guidance provided by the Ministry of Health and Long-Term Care in relation to the definition of “health care.”
The IPC also dealt with the Divisional Court decision that has contributed to the confusion – Hooper v College of Nurses of Ontario. The IPC said:
The Divisional Court held that pursuant to section 76 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, the investigator appointed by the College of Nurses of Ontario had the jurisdiction to request and use the records from the Sunnybrook and Women’s College Health Sciences Centre. The Divisional Court further held that the Sunnybrook and Women’s College Health Sciences Centre had the jurisdiction to disclose these records to the College of Nurses of Ontario. The Divisional Court stated that the Occupational Health and Safety Department was providing health care and therefore the information contained in the records at issue was personal health information as defined in section 4 of PHIPA. This decision does not discuss how this interpretation of “health care” would more broadly affect the collection, use, and disclosure of personal health information on the basis of assumed implied consent pursuant to section 20(2) of PHIPA.
On my review of this decision, it was not necessary for the Divisional Court to decide whether or not the Occupational Health and Safety Department was providing health care and therefore that the information contained in the records was personal health information. If they were not records of personal health information, the disclosure would not be subject to PHIPA. Alternatively, if they were records of personal health information, the disclosure would be permitted, as the Divisional Court noted, pursuant to sections 9(2)(e) and 43(1)(b) of PHIPA. As a result, the statement by the Divisional Court that the Occupational Health and Safety Department was providing health care and that the information in the records was personal health information is obiter dicta as it was unnecessary to the decision in the case.
The decision in Hooper is difficult to reconcile with that in Wyndowe, where the Federal Court of Appeal confirmed that physicians performing an independent medical examination are not “health information custodians” for the purpose of PHIPA. I note that in the Hooper case, the Divisional Court did not have this office’s interpretation of section 20(2) of PHIPA or the findings in HC-050014-1 before it. In all these circumstances, I am satisfied that the decision in Hooper, as it relates to what constitutes health care and personal health information, is not binding on me.
This is very helpful, in particular to employers who often face an argument that the health care practitioners they retain as assessors and consultants as subject to the “custodial” duties in PHIPA. The only section of PHIPA that typically binds employers and their assessor/consultants is section 49.