Consent to Collect, Use and Disclose Personal Health Information
Janine is an independent contractor affiliated with a Community Care Access Centre. Her practice focus is paediatrics and she often assesses children who attend a community-based special needs day care centre. Part of her role is providing strategies to early childhood educators to assist the children in the day care environment.In January, a five-year-old child she has worked with over the previous two years while in day care entered the school system. The child will continue to attend the day care centre for half days and the rest of the day he will be in school.
The child’s mother has provided his teacher with a copy of the assessment report completed while her child was in day care. The teacher consults with the physiotherapist employed by the school board to assist her in understanding and implementing the recommendations.
Can the physiotherapist employed by the school board discuss the report with the teacher without first contacting the parent for consent?
Can Janine, the physiotherapist in the day care centre, contact the physiotherapist employed by the school board to facilitate the transition of care, or does she need the parents consent prior to making the call?
Reponse
What are the key issues for consideration?- Consent to collect, use and disclose personal health information
A physiotherapist is obligated to comply with both the Health Care Consent Act (HCCA) and the Personal Health Information Protection Act (PHIPA). It is professional misconduct to give information about a patient to a person other than the patient or his or her authorized representative except with the consent of the patient or his or her authorized representative, or as required or allowed by law. (Refer to Professional Misconduct Regulation.)
Under PHIPA, the CCAC is the Health Information Custodian (HIC) and Janine, who is working as an independent contractor to provide services on behalf of the CCAC, is an agent of the HIC.
The primary function of a school board is not to provide health care therefore, it is not subject to PHIPA. The privacy of school board information is protected by the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). The physiotherapist employed by the school board is a health provider and thus is an independent HIC.
MFIPPA allows the teacher to disclose the report to the physiotherapist employed by the school board if it is for the same or consistent purpose as the purpose the parent disclosed it to the teacher. The physiotherapist could reasonably assume that the report was given to the teacher by the parent so that the recommendations provided in the report could be carried out in the school environment. In this instance it is appropriate for the physiotherapist to review the report with the teacher without seeking express consent from the mother.
Discussions between the teacher and the school-based physiotherapist do come under PHIPA. PHIPA allows a HIC to use and disclose information for the purposes for which the information was collected even if that use is covered by another act. The information was initially covered by MFIPPA when it came from the teacher but it is now protected through PHIPA when it is in the possession of the physiotherapist. PHIPA permits the HIC and their agents to rely on an individual’s implied consent when collecting, using or disclosing health information for the purpose of providing direct health care. The two physiotherapists are part of the direct care of the child and are permitted to share information with each other without seeking express consent from the mother. Even though a physiotherapist has the ability to act on implied consent, the College advises physiotherapists to ensure the family understands how implied consent can be implemented.
The College does not interpret the consent or privacy legislation but does have a role in assisting physiotherapists to comply with the legislation.
