As legal professionals, we regularly receive requests for client documents and information. The Rules of Professional Conduct give clear guidance for our protocol in response to these requests.
Lawyers working with older adults may be asked to advise clients on the protocol for consenting to a physician’s disclosure of information. This may arise in the course of an estate planning process for older adults, a natural time for individuals to reflect on their current circumstances and care management plan. In the course of this reflection, the client may determine it is appropriate to include their loved ones in a direct dialogue with their health care professionals.
In Ontario, the release of individual’s personal health informationFootnote1 is governed by the Personal Health Information Protection ActFootnote2(PHIPA). Personal health information is defined within section 4 of PHIPA to include a broad range of patient records and information. PHIPA sets out the rules for management of this information by individuals or entities that are designated “health information custodians.” Entities that constitute health information custodians are defined in section 3 of the Act and include hospitals, doctors, pharmacies, laboratories, dentists and retirement residences.
Similar to the rules for management of client records by lawyers, the rules for health information custodians outline clear parameters governing their authority to release personal health information. The patient’s consent to the release of this information is required where the patient has capacity. When the patient does not have capacity, his or her “substitute decision maker,” as defined in the Heath Care Consent ActFootnote3, may provide such consent.Footnote4 The consenting individual may revoke this consent at any time, provided they have the capacity to do so.Footnote5
As our clients’ trusted advisors, we should help them navigate the requirements in this respect when we are asked to do so. Any consent provided to a health information custodian should specify:
- The information that may be disclosed;
- To whom information may be disclosed; and
- Whether such disclosure may be ongoing.
Implied consent to disclosure is technically sufficient under the Act.Footnote6 Documenting the permitted consent in writing is generally advisable although it is not required. It confirms the boundaries of the consent are clear amongst all parties. As well, it may help the health care custodian efficiently cooperate with future requests for information where it has been permitted, confident the permission to do so is clear.
The Ministry of Health and Long Term Care provides a sample form for this purpose. This form does not trigger the consenting individual to be specific regarding each of the parameters set out above however it may be a starting point for consideration.
It is important that older adults understand their personal health information is confidential, even amongst their loved ones, unless they determine otherwise. They may wish to share personal health information with individuals in their network of support, however, this is at their discretion. Helping our clients to manage the process efficiently and clearly is likely to reduce their stress and increase efficiency for everyone involved, including third parties and the health information custodians.
Genevieve Giroday, BA, LL.B, is the founding principal of Giroday Law in Ontario. Genevieve’s practice focuses on estate and trusts, and includes litigation, planning and assistance with administration of estates.