Ontario’s Privacy Office holds Hospital’s right to cover up death

Summary: The daughter of a deceased patient made a request to the hospital for access to records of a meeting between the daughter and the hospital to discuss its treatment and care of her mother. The hospital denied access to two records, in full, on the basis of solicitor-client privilege.

In this decision, the adjudicator finds that the records contain the personal health information of the complainant’s mother, to which the complainant exercises a right of access, on her mother’s behalf, under section 52(3) of PHIPA. The records also contain the complainant’s own personal information, to which she has a right of access, on her own behalf, under section 47(1) of FIPPA. However, the adjudicator concludes that both the personal health information of the complainant’s mother and the complainant’s own personal information are exempt on the basis of solicitor-client privilege. In the result, the adjudicator upholds the hospital’s denial of access to the records, in full.

Statutes Considered:  Personal Health Information Protection Act, 2004, SO 2004, c 3, Sched A, as amended, ss 2 (definitions), 3, 4, 5(1), 8(1), 8(4), 23(1)4, 25, 52; Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31, as amended, ss 2 (definitions), 19, 47(1), 49.

Decisions Considered: PHIPA Decision 17, PHIPA Decision 27.

BACKGROUND:

[1]         The daughter of a patient of Mackenzie Health (the hospital) made a request to the hospital for a number of records relating to her deceased mother’s care. This complaint addresses the portion of the daughter’s request seeking the notes of a May 10, 2013 meeting between hospital staff and the daughter, along with two individuals who accompanied the daughter, held after her mother’s death.

[2]         In response to this aspect of the request, the hospital issued a decision under the Personal Health Information Protection Act, 2004 (PHIPA), denying access to the records on the basis of the exemptions at section 52(1)(c) (continuing proceedings) of PHIPA and sections 13(1) (advice or recommendations) and 19(b) and (c) (solicitor-client privilege) of the Freedom of Information and Protection of Privacy Act (FIPPA), available to the hospital through section 52(1)(f) of PHIPA.

[3]         The daughter complained about the hospital’s denial of access to this office, becoming the complainant in this matter.

[4]         As the parties were unable to resolve the issues through mediation, the complaint was transferred to the review stage of the complaint process under section 57(3) of PHIPA. During the course of my review, I sought and received representations from the hospital and the complainant on the complainant’s right of access to the records under PHIPA or FIPPA, or both.

[5]         By the end of the review process, the hospital had revised its position. It continues to deny access to the records in full. The hospital submits that the records contain only snippets of personal health information of the complainant’s mother, which it is not required to release to the complainant, and that the remainder of the records are protected by solicitor-client privilege.

[6]         In this decision, I find that the records contain both the personal health information of the complainant’s mother and the personal information of the complainant, and that the complainant is entitled to request access to both kinds of information under PHIPA and FIPPA, respectively. I conclude, however, that the records are exempt in full on the basis of solicitor-client privilege. As a result, I uphold the hospital’s decision to deny access to the records, in full.

Citation: Mackenzie (Health) (Re), 2016 CanLII 46211 (ON IPC), <http://canlii.ca/t/gsmnk>, retrieved on 2016-07-26

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