by Written on behalf of Wise Health Law April 19, 2018 5 min read

In a recent decision, the Information and Privacy Commissioner (IPC) upheld a hospital’s decision to refuse to correct a patient’s health records and remove what the patient perceived as incorrect and inaccurate information that had led to the patient having his driver’s license suspended. The IPC noted that a request for correction should not be used to substitute or rewrite a physician’s opinion or observations about a patient.

What Happened?

The patient in question attended the emergency room at the Royal Victoria Regional Health Centre (RVH). Based on the information provided to physicians on-call during the visit, the physicians reported the patient to the Ministry of Transportation (MTO) which resulted in the suspension of the patient’s drivers license. The patient subsequently requested RVH to make certain corrections to his personal health information (PHI) under the Personal Health Information Protection Act(PHIPA). The patient was specifically concerned about the use of certain phrases or diagnoses which he believed were incorrect and misleading. In response to the patient’s request, RVH issued a decision advising the patient that the three physicians who had made the initial diagnoses reviewed his request for corrections and that his request was denied under s. 55(9)(b) of PHIPA because “the information consists of a professional opinion or observation that a custodian has made in good faith”. The patient filed a complaint with the IPC.

The IPC’s Decision

The IPC upheld RVH’s decision not to make the requested corrections to the patient’s record. The IPC found that s.55(9)(b) applied and the hospital was not required to correct this information.

Requested Corrections under s.55 of PHIPA

Section 55 of PHIPA permits a patient who has access to their health information to request that a health information custodian correct their record “if the individual believes that the record is inaccurate or incomplete for the purposes for which the custodian has collected, uses or has used that information”. The purpose of this provision is to impose a duty on health information custodians to correct any records that are inaccurate or incomplete, subject to the exceptions set out in s.55(9) (including the good faith professional opinion exception). Under s. 55(8), in order for a right of correction to be granted, the patient seeking the correction must establish that the record is incomplete or inaccurate for the purposes for which the custodian uses the information and must provide the information necessary to correct the record. Once the patient establishes this, the question becomes whether any of the exceptions in s.55(9) apply. Where a custodian claims that s.55(9)(b) applies, that custodian must establish that the information at issue consists of a “professional opinion or observation” about the patient. If this is established, the responsibility shifts again to the patient seeking the correction to show that the professional opinion or observation was not made in good faith. Where the professional opinion or observation exception is ultimately found to apply, it is irrelevant whether the patient in question has shown that the information in question is incorrect or inaccurate, since a finding that this exception applies will resolve the complaint.

The Patient’s Position

The patient argued that he had met the threshold needed for corrections to be made, based on the materials he had filed with his complaint (which consisted of written comments, annotated copies of the records in question, and correspondence to various physicians, including those identified in the records). The patient disputed that the cause of the medical event that led to his admission to RVH. The patient attributed the medical event to the use of a medication that he was taking at the time, that medication’s interaction with something he had consumed, and its interaction with a blood infection that he was suffering from. The patient also disputed the veracity of a separate diagnosis of his cognition that had been included in his medical history. The patient believed that the physicians had improperly attributed the cause of the medical event to a personal habit which he denies he participates in. The patient sought, among other things, the removal of the incorrect information, and the addition of details which he believed would better explain the cause of the medical event that resulted in his ER visit. With respect to the professional opinion or observation exception claimed by RVH, the patient asserted that the physicians had not acted professionally as they had not tested him to determine the real cause of his symptoms and “made assumptions instead”.

The Hospital’s Position

The hospital relied on the same position it had taken in its original decision to deny the patient’s requested corrections.

The IPC’s Reasoning

The IPC noted that the purpose of s.55(9)(b) is to preserve “professional opinions or observations” that had been made in good faith, whether or not they were accurate. This is based on sound policy considerations. The IPC emphasized:
A request for correction or amendment should not be used to attempt to appeal decisions or professional opinions or observations with which a complainant disagrees and cannot be a substitution of opinion, such as a complainant’s view of a medical condition or diagnosis.

Professional Opinion or Observation

The IPC upheld the definition of “opinion” as “a belief or assessment based on grounds short of proof; a view held as probable”, and the definition of “observation” as a “comment based on something one has seen, heard or noticed, and the action or process of closely observing or monitoring”, noting that both opinions and observations are subjective. The IPC went on to note that it was satisfied, based on the circumstances and content of the disputed records, that the three physicians in question applied their professional knowledge in documenting what was “seen, heard, or noticed” during their assessment of the patient when he presented at the ER and that this constituted professional opinions and observations for the purposes of s.55(9)(b). The IPC further noted that the patient’s request to correct the information “seeks to substitute or rewrite the physicians’ opinions or observations contained in the records”.

Good Faith

The IPC adopted the definition of good faith as outlined in court decisions. A finding that someone has not acted in good faith can be based on evidence of malice or an intent to harm another individual, or can be based on serious carelessness or recklessness. Courts have stated that individuals are assumed to act in good faith unless proven otherwise, and the burden of proof therefore rests on the person seeking to establish that someone has acted in the absence of good faith. In the context of s.55(9)(b), the burden rests on the patient seeking the correction to their records to establish that the custodian did not make their professional opinion or observation in good faith. While the IPC acknowledged that the chain of events that led to the MTO suspending the patient’s license had inconvenienced him, his submissions were not enough to rebut the presumption of good faith on the part of the physicians in question. The IPC noted that “there is no evidence of malice, intent to harm, serious carelessness or recklessness on the part of these physicians.”

The IPC's Final Conclusions

The IPC ultimately concluded that the professional opinion and observations exception under s.55 applied, and even if the patient could establish that the information at issue was inaccurate or incomplete for the purpose for which it was used by RVH, RVH was not obligated to make the changed requested. At Wise Health Law, we regularly assist healthcare professionals and help them ensure they are meeting their professional obligations, including obligations with respect to privacy and record keeping. Our team of health lawyers are well-known in the legal, regulatory, and health-care communities for our exceptional legal guidance and skilled support. With offices in both Toronto and Oakville, Ontario we are easily accessible to professionals throughout South-Western Ontario. Contact us online, or at 416-915-4234 for a consultation.

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