Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 117-1996
August 27, 1996
INQUIRY RE: A decision of the Nanaimo Regional General Hospital to refuse
an applicant access to her hospital records
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on May 31, 1996
under section 56 of the Freedom of Information and Protection of Privacy
Act (the Act). This inquiry arose out of a request for review of a
decision of the Nanaimo Regional General Hospital (the hospital) to refuse an
applicant access to her hospital records relating to two separate periods of
hospitalization.
2. Documentation of the review process
On March 1, 1995 the applicant submitted a request to the hospital "for copies
of her hospital records for the periods March 12 to October 21, 1992 and May 15
to June 14, 1993." On April 21, 1995 the hospital notified the applicant of
its decision to withhold the records in their entirety under section 19 of the
Act. The applicant wrote to this Office on January 18, 1996 to request a
review of the decision with respect to all information withheld from her under
these sections. The applicant was subsequently granted time extensions in
order to prepare her submission.
3. Issue under review at the inquiry and the burden of proof
The issue under review in this inquiry is whether the release of the records
would be harmful to individual or public safety.
Section 19 of the Act reads:
Disclosure harmful to individual or public safety
19(1) The head of a public body may refuse to disclose to an applicant
information, including personal information about the applicant, if the
disclosure could reasonably be expected to
(b) interfere with public safety.
(2) The head of a public body may refuse to disclose to an applicant personal
information about the applicant if the disclosure could reasonably be expected
to result in immediate and grave harm to the applicant's safety or mental or
physical health.
Section 57 of the Act establishes the burden of proof on the parties in this
inquiry. Under section 57(1), where access to information in a record has been
refused, it is up to the public body to prove that the applicant has no right
of access to the record or part of the record. In this case, it is up to the
Nanaimo Regional General Hospital to prove that the applicant has no right of
access to the records withheld under section 19 of the Act.
4. The records in dispute
The records in question consist of many pages of documents relating to the
care that the applicant received while in the hospital for treatment. They
include notes and summaries written by both hospital staff and the applicant,
medication records, schedules, medical opinions, various hospital forms, and
memos.
5. The Nanaimo Regional General Hospital's case
The hospital made its decision not to disclose the records in dispute
under section 19 of the Act on the basis of an opinion by a medical
practitioner who treated the applicant as a patient. I reviewed this opinion
on an in camera basis.
6. The applicant's case
The applicant is of the view that the hospital is using section 19 of
the Act to protect the interests of its staff members because of a violent act
that she believes happened to her while she was a patient there and because of
the general way in which she was treated there. She further alleges unethical
and harmful staff standards and practices in that hospital.
I have also carefully reviewed a number of in camera submissions that
the applicant made in support of her arguments.
7. Discussion
The application of section 19: Disclosure harmful to individual or
public safety
The application of this section necessarily involves me, a lay person, in the
evaluation of expert testimony, in this case an opinion of a psychiatrist that
it is definitely not in the best interests of the applicant, other individuals,
and society at large for the applicant to have access to her own hospital
records. As I have stated in previous Orders, I am strongly inclined to defer
to professional expertise in matters such as this one, subject to my own review
of the contents of the records in dispute.
The basic thrust of my decisions to date on this section has been to require a
public body to act prudently where the health and safety of others are at issue
in connection with the possible release of records. (See Order No. 89-1986,
March 4, 1996, pp. 4, 5; Order No. 28-1994, November 8, 1996, p. 8)
Section 19(2) sets a relatively high standard for non-disclosure: it must not
occur "if the disclosure could reasonably be expected to result in immediate
and grave harm to the applicant's safety or mental or physical health." In
addition, where an applicant is seeking access to his or her own medical
records, a public body must meet the higher test established by the Supreme
Court of Canada in McInerney v. MacDonald, (1992), 93 D.L.R.
(4th) 415 (S.C.C.).
In order to meet its burden of proving that the applicant has no right of
access to her medical records under section 19(2), a public body must thus
show, in the language of the test established by the Supreme Court of Canada,
that there is a "significant likelihood of a substantial adverse effect on the
physical, mental, or emotional health of the patient or harm to a third party."
In my view, the hospital has only met this test in part with respect to
section 19(2). It has not met the section 19(1) test with respect to "public safety"
on the basis of its submissions to me.
Review of the records in dispute
I wish to assure the applicant that I have carefully reviewed the in
camera submissions made by the hospital and by herself and also looked at
the records in dispute. My Order below to release certain records to her
reflects this process.
My view is that this applicant should receive information from her hospital
records that could not "reasonably be expected to result in immediate and grave
harm to the applicant's safety or mental or physical health."
I have divided the hospital records of the applicant into two categories:
1. Routine matters that she should have access to, including: her admission sheet; her client data sheet; information relating to her Review Panel under the Mental Health Act; scheduled medications; physician's orders; and various technical clinical reports, including electrocardiogram and lab tests;
2. Matters that can be withheld on the basis of section 19, including:
discharge summary; medical and psychiatric assessments of the applicant; and
progress notes on the patient.
I distinguish this Order from Order No. 108-1996, May 30, 1996 by the
different psychiatric status of the two applicants, based in both cases on
in camera submissions that I am not at liberty to discuss.
8.
Order
I find that the head of the Nanaimo Regional General Hospital is authorized to
refuse access to part of the records in dispute under section 19(2) of the Act.
Under section 58(2)(b), I confirm the decision of the hospital to refuse access
to certain information in the records to the applicant.
Further, I find that the head of the Nanaimo Regional General Hospital was not
authorized to refuse access to other parts of the records in dispute under
sections 19(1) and 19(2) of the Act. Under section 58(2)(a), I require the
hospital to give the applicant access to part of the records in dispute. For
this purpose, I have marked a copy of the complete record to indicate what
should be released.
August 27, 1996
David H. Flaherty
Commissioner