Privacy Laws and Health Care
In this section we look specifically at privacy in relation to “personal health information.” Personal health information: personal information that is mainly about your health and is used by a health professional, health organization, health researcher or ministry of health.
Personal health information can include:
- your health care number;
- information about your past and current diseases, conditions, addictions, diagnoses, treatments, procedures, medications, blood tests, lab tests, x-rays, surgeries, and health habits;
- your genetic information; and
- information about which health professional you have consulted or which clinic you’ve attended.
- How your employer can use your personal health information
- What health information you have to give your employer if you have a disability
- Mandatory drug and alcohol testing
There are two laws in British Columbia that protect your personal information and that give you a right to get access to your personal information that is held by businesses or government. These laws apply to your personal health information in the same way that they apply to all other personal information about you.
The Personal Information Protection Act (PIPA) applies to private businesses and not-for-profit organizations including doctors in private practices, clinics, pharmacies, opticians, therapists, dentists, mental health professionals, naturopaths and other health care professionals and services that are not part of the health authority system. It also applies to privately operated or not-for-profit residential or treatment facilities, such as those for seniors or people with addictions or disabilities.
The Freedom of Information and Protection of Privacy Act (FOIPPA) applies to health authorities and all the hospitals, long-term care facilities and clinics that are run by health authorities. It also applies to provincial mental health facilities, boards of health and regional hospital districts.
These laws require organizations and governments to protect the security of the information, and to protect your privacy by ensuring that any right you may have to be told about how your personal information is collected, used and disclosed, or to give or not give consent, and your right to get access to your personal information, are respected.
The Supreme Court’s View of Privacy
The Supreme Court of Canada has recognized that the Canadian Charter of Rights and Freedoms protects individual privacy. The Charter fosters the values of dignity, integrity and autonomy by protecting a “biographical core” of personal information that people in our society would want to keep private, and prevent from being given to the state, including information which tends to reveal intimate details of the individual’s lifestyle and personal choices. (1) For these reasons the protection of privacy is an essential part of our constitutional rights to liberty and security of the person. (2)
Furthermore, the Supreme Court has said that our Charter right to `security of the person’ includes protection for the psychological integrity of the individual (3) and that the release of a private document or record is an invasion of the dignity and self-worth of the individual, who enjoys the right to privacy as an essential aspect of his or her liberty in a free and democratic society. (4) The Supreme Court has observed that privacy is essential to maintaining relationships of trust. (5)
Traditional Legal Protections for Medical Information
The Supreme Court has explicitly recognized that the special relationship of trust and confidence between a doctor and patient means that the doctor has a duty to act with the utmost good faith and loyalty, and to hold information received about a patient in confidence, because when a patient tells a doctor personal information, she or he does so with the legitimate expectation that these duties will be respected. Fundamentally, the information remains the patient’s to be used for the benefit of the patient, and is confided by the patient in the expectation that his or her interest in and control of the information will continue. (6)
Medical ethics require that doctors maintain confidentiality. The British Columbia Medical Association takes the position that information in the medical record belongs to the patient, while the doctor is the custodian and is accountable to protect the information from disclosure unless the patient has given appropriate consent. (7)
(1) R. v. Plant, [1993] 3 S.C.R. 281, (S.C.C.)
(2) R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, 1999 CanLII 637 (S.C.C.)
(3) R. v. Morgentaler, [1988] 1 S.C.R. 30 (S.C.C.)
(4) R. v. O’Connor, see note 2.
(6) McInerney v. MacDonald, 1992 CanLII 57 (S.C.C.); [1992] 2 S.C.R. 138;