Developmental service agency not a health information custodian

On October 29th, the Information and Privacy Commissioner/Ontario held that an organization operating as service agency under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act is not a health information custodian under the Personal Health Information Protection Act.

The issue of the organization’s status came up in an appeal of its access decision. The organization acted as if subject to PHIPA, but the adjudicator raised its status as a preliminary issue, and ultimately held that PHIPA did not govern the request because the organization was not providing a service for community health “whose primary purpose is the provision of ‘health care’.”

Although the organization both handles medical information in providing its services and contributes to the enhancement of individual health, the IPC held that its primary role is the coordination of service and not the provision of health care. It explained:

[34]      In my view, what is common to each of the six services offered by SCS is SCS’ role as a coordinator for, or link to, a wide range of services offered by third parties to individuals with developmental disabilities and/or autism. It is a role of coordination between these individuals (or their family members) and third-party services, which may include assessing each individual’s needs and/or preferences, and matching them to various types of programs in the community. The effect of the individuals’ participation in those third-party programs may well be that it enhances their health, but that does not transform SCS’ role into one that can be described as having a primary purpose of providing health care. In my view, it would be too broad a reading of “health care” to find that SCS’ primary purpose is the provision of health care.

[35]      It is true that SCS serves members of the community who have health challenges. The complainant states that these individuals “have other health issues including mental and neurological diagnoses, speech-language impairments and complex health needs often requiring 24 hours supervision.” However, the fact SCS’ client base has health challenges does not mean that SCS’ primary purpose is the delivery of health care. With respect to the status of third party entities to whom SCS refers for services, I am not satisfied that their status is relevant to the question of whether SCS itself is a HIC. Assuming, without deciding, that at least some of those third party entities are HICs under PHIPA, that does not mean that SCS itself, as a coordinating agency, is a HIC.

This is a good reminder that organizations do not become health information custodians merely by handling medical information or by employing regulated health professionals. They must engage in the provision of “health care,” which the IPC has defined narrowly in this decision and others.

Service Coordination Support (Re), 2020 CanLII 85021 (ON IPC).