September 27, 2018 3 min read

Legislation:

Section 35 of the Mental Health Act of Ontario (MHA) prohibits the disclosure of any information obtained in the course of assessing or treating a patient in a psychiatric facility for use before a court or anybody. Disclosure is permitted with the consent of the patient, and failing consent, by a court order if the disclosure is essential in the interests of justice.

Background:

The issue of disclosure recently came before a single judge of the Divisional Court following a complaint of sexual abuse by a patient concerning her family doctor to the College of Physicians and Surgeons of Ontario (CPSO). In the course of the CPSO's investigation, they determined that the patient’s doctor had also failed to meet the standard of care when prescribing medications for the patient. The allegations had been referred to the CPSO Discipline Committee. In the motion, both the CPSO and the doctor wanted to disclose and make use of the protected records at the hearing.

CPSO Position:

The patient had been treated on two occasions in separate psychiatric facilities. Consultation notes from these assessments had been copied to the family doctor and were a part of his chart. The two notes had been read by an expert retained by the CPSO who referred to them in an opinion on the standard of care. That expert had opined that the doctor had failed to meet the professional standard in prescribing medication to the patient in the past. The two notes were specifically referred to in the opinion and were essential to support its conclusions.

The Doctor’s Position:

The doctor wanted to disclose and use the notes in a pending motion seeking production of the patient’s medical records from the two psychiatric facilities and of the treating psychiatrist. The records were the evidentiary foundation for that relief before the Discipline Committee. Further, they were believed by the doctor to be essential to making a full answer and defence to the allegations of professional misconduct.

The Legal Test:

The test to be satisfied was whether the disclosure of the records was essential in the interests of justice. In making its assessment, the court must consider the relevance of the records, their probative value, and the parties’ ability to obtain a just determination of the proceeding between them. The onus (i.e. responsibility) is on the parties wishing to have the documents released from their confidentiality. Those needs, however, must be considered and weighed against the patient’s interest in preserving the confidentiality of what is acknowledged to be very sensitive and private information.

The Patient Refused to Consent:

Complicating matters, in this case, was the patient’s refusal to consent and a request for an adjournment. The patient was short of money to both hire a lawyer and travel to the hearing in Toronto. No timeline for any alternate dates was provided by the patient who did not appear. The communication was by email through an independent legal counsel. The court did not grant the adjournment given the urgency by reason of the impending motions for production and the Discipline Hearing.

Conclusion:

The court found that both applications met the test and that the two consultation notes were essential in the interests of justice. Their disclosure and use were permitted. The lawyers at Wise Health Law, are passionate about helping health professionals and healthcare organizations understand and protect their legal rights. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.


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