The Family Alliance on Severe Mental Illness (FASMI) has reviewed the legislation of all Canadian provincial jurisdictions as it pertains to the privacy of health information, focussing on four key issues:
 

• Collection of information without consent;

• Disclosure of information without consent;

• Capacity to consent to the release or withholding of information; and

• Keeping a source of information confidential.

 

We selected what we view as the provisions for each of these four issues that best supports the appropriate participation of families in the care of people with severe mental illness. For a more detailed discussion of that role, see our position paper titled, Family Caregivers Need Information to Effectively Care for Relatives with Severe Mental Illness. For some of these provisions, we have recommended amendments that would add clarity and/or improve the provision.  
 

1. Collection of information without consent

 

When individuals with mental disorders that are causing a risk of self-harm or harm or to others, are assessed by clinicians it is often essential that the clinician obtain collateral information. Sometimes the individual refuses to allow clinicians to obtain the information necessary to make an appropriate clinical decision. All Canadian jurisdictions have provisions that allow clinicians to contact others to obtain information in these circumstances.

 

We approve the provision in the Newfoundland and Labrador Personal Health Information Act.

 

Newfoundland and Labrador Personal Health Information Act

 

Current Provision

 31. A custodian may collect personal health information from a source other than the individual who is the subject of the information where

             

(a)  the individual who is the subject of the information authorizes collection from another source;

             

1. the information is reasonably necessary for providing health care to the individual and it is not reasonably possible to collect it directly from the individual

 

(i)  personal health information that can reasonably be relied on as accurate, or

 

(ii)  personal health information in a timely manner

 

(We suspect that there may have been a minor drafting error and suggest removing the word “it” in 31.(b) to read): 

 

1. the information is reasonably necessary for providing health care to the individual and it is not reasonably possible to collect it directly from the individual

 

(i)  personal health information that can reasonably be relied on as accurate, or

 

(ii)  personal health information in a timely manner;

 

1. Disclosure of information without consent

 

Canadian provinces require clinicians to disclose information if they become aware that their patient/client poses a risk of serious harm, either to themselves or to others.

 

We approve of Newfoundland and Labrador’s provision, which includes situations in which the clinicians believes that there should be further assessment to assess risk. 

 

Newfoundland and Labrador Personal Health Information Act

 

Current provision

 

40. (1) A custodian may disclose personal health information without the consent of the individual who is the subject of the information where the custodian reasonably believes that disclosure is required

            

 (a)  to prevent or reduce a risk of harm to the mental or physical health or safety of the individual the information is about or another individual; or

            

 (b)  for public health or public safety.

 

(We have amended 40.(1) (a) to delete the word “serious” before “harm”.)

 

1. Capacity to release or withhold information

 

Some mental disorders, especially psychotic disorders, interfere with a person’s ability to understand they are ill or to appreciate what is required for them to safely recover from their illness. When family caregivers are intimately involved in looking after an ill relative who lacks this capacity, the family must have access to the information needed to effectively care and direct treatment for their loved one.

 

We approve Ontario’s provision for addressing this issue.

 

Ontario Personal Health Information Protection Act

 

Current provision

 

21 (1) An individual is capable of consenting to the collection, use or disclosure of personal health information if the individual is able,

 

(a)  to understand the information that is relevant to deciding whether to consent to the collection, use or disclosure, as the case may be; and

 

1. to appreciate the reasonably foreseeable consequences of giving, not giving, withholding or withdrawing the consent. 
    

1. Keeping a source of information confidential

 

Family caregivers sometimes find themselves in situations in which their ill relative has not provided essential information to clinicians. In some instances family caregivers wish to keep the source of the information confidential because of the potential negative effect disclosure could have on the relationship or to the safety of family members.

 

The Northwest Territories provides an appropriate provision to ensure that this happens.

 

Northwest Territories    Health Information Act

 

 

114. A health information custodian may refuse to disclose information to an applicant if the disclosure could reasonably be expected to lead to the identification of a person who provided personal health information to a custodian in confidence, whether explicitly or implicitly, and under circumstances in respect of which it is appropriate that the name of the person be kept confidential.