N.G. v. Children's Aid Society of The District of Thunder Bay, 2015 CFSRB 45

CHILD AND FAMILY SERVICES REVIEW BOARD

N.G.

v.

Children's Aid Society of The District of Thunder Bay

REASONS FOR DECISION

Date: October 6, 2015

Citation: 2015 CFSRB 45

Indexed as: N.G. v. Children's Aid Society of The District of Thunder Bay

(CFSA s.68)

1The Applicant was in an accident when he was a teenager, spent time in the hospital and was “in care” for a day. He is trying to obtain his medical records and requested them from the Society. The Society’s position is that it does not have any of his medical records. The Applicant came to the Child and Family Services Review Board (CFSRB or Board) under s. 68.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended (the “Act”) because he believes the Society has his records and has not heard his request or explained why it has not given him the records.

2The issues for the Board are:

• whether the Society heard the Applicant regarding his request for his medical records; and,

• whether the Society provided the Applicant with reasons for not providing them to him, as required by s. 68.1(4) 4 and 5 of the Act.

3The Board held a telephone hearing on September 28, 2015.

4The Board has determined that the Society heard the Applicant in 2011 and provided him with explanations. However, the Society did not hear him or provide him with an explanation in 2014. The Board will not make an order in this case because of the Society’s more recent actions, set out below.

5The Applicant’s situation is an unfortunate one and the Board will permit the use of this decision if it will assist the Applicant in dealing with the government department that wants the medical information.

BACKGROUND

6The Applicant ran away from his home in [Province 1], to [Province 2], when he was [age], in [year]. He was hitchhiking back home when the car he was in was involved in a serious accident. The Applicant received a gash in his arm that he describes as six inches long and two inches deep: to the bone. He went to the local hospital and was treated for the gash. The police took him from the hospital to the Society’s offices and he spent several hours in a group home before the Society arranged for him to take a train home to his mother in [Province 1]. There was no court order placing him in the care of the Society.

7He recalls the police handing over a file which he was told contained medical information, to the Society. The Applicant contracted Hepatitis C and he needs the records for the Ontario Hepatitis C Assistance Plan, which is assessing his participation in the program.

8In 2011, he started trying to get his medical records from the Society without success. In 2014 after struggling with his and his wife’s medical needs, he again tried pursuing the records. Each time he has asked for his records, the Society had advised that there are no medical records in the file.

9He believes the Society has been withholding his medical records and as a result made this application.

10The Society has now searched for records and through its file at least 4 times. The final time was as a result of the Board’s order for pre-hearing disclosure which ordered the Society to produce the entire file and to search its microfiche records. The Society complied with this order.

ANALYSIS

11The Board had to determine whether the Society met its obligations to the Applicant under the Act.

12The relevant legislative provisions under the Act are:

68.1(4). Matters for Board Review

The following matters may be reviewed by the Board under this section:

(4) Allegations that the society failed to comply with clause 2(2) (a);

(5) Allegations that the society has failed to provide the complainant with reasons for a decision that affects the complainant’s interests.

2(2). Duties of Service Providers

Service providers shall ensure,

(a) That children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their interests are made and to be heard when they have concerns about the services they are receiving.

13In P.O. v. Family and Children’s Services Niagara, 2012 CFSRB 33, at paras. 13-14, the Board described the purpose of s.68.1(4) and (5) and addressed s. 68.1 (4) 4 as follows:

The obligations under s. 68.1 (4) 4 and 5 reflect the importance of active participation for parents, providing them with the opportunity to have some degree of influence in the process. This is facilitated through genuine communication, giving applicants the opportunity to have input into decision making and to have enough information to make informed responses to, or accept decisions.

To be heard involves active listening, discussions, the society’s taking steps to address the Applicant’s concerns and communicating this to her so that she feels that her concerns are taken seriously and dealt with thoroughly.

14The “right to reasons” under the Act, means a right to a meaningful explanation about decisions that affect the applicant’s interests. In J.G. v. Windsor-Essex Children’s Aid Society, 2013 CFSRB 8 at para.13, the Board held that:

With respect to this section of the Act, what constitutes sufficient reasons is a matter to be examined in each case in the context of that particular situation. This may include an examination of the timeliness and the level of detail provided. A complainant must be given sufficient information regarding the factors that were taken into account in making the decision to allow him or her to understand why and how the decision was made.

15The Applicant testified that he called the Society in 2011 to ask for his medical records from his Society file. At that time (April 4, 2011) he spoke with a child protection worker. Her own record keeping in the file indicates that she did a record check for the file on April 4, 2011 and located a file (record). Her case notes indicate that she got a call from the Applicant who explained his situation including that he could describe the group home he stayed at, he had no parent in town and was in care. He told her he had called the hospital and their records only go back to 1982 and that he hoped there was something in the Society’s file. Her case notes indicate that she looked into the matter right away by checking the file and calling him back within the hour. She told him what was in the file and followed up with a letter dated April 4, 2011. The letter states what the “exact information” in the file was and provides the brief history of the situation. There is no reference to medical information in the file, other than that a prescription was obtained. The letter concludes: “I trust this information is of assistance for you. Good luck in your continued search for information”. The letter did contain the wrong dates for the incident, for which the Executive Director has now apologized and has corrected.

16The child protection worker’s documentation indicates “request for file information completed, submit for closing” and that the case was closed because the “rec Discl”. She used a standard form to record her information about the file request. The Executive Director confirmed that it was a standard form and that the form contains many parts that are not relevant to the Applicant or his request. At the hearing, the Applicant was particularly concerned with a line in the form that says “describe the membership of the family system and significant people involved in this case. Use a summary narrative or genogram or both”. There is no entry under this heading and the Society witness testified that this section had nothing to do with the Applicant, his request or his type of request.

17In 2014, the Applicant resumed his attempts to locate the medical information. He testified that he spoke to the Society’s family service worker approximately 7 times and that the family service worker was rude to him. He also testified that the family service worker told him he had to go to a CAS in [City 1 in Province 1] with identification so that the Society could disclose the information to him. The Applicant submitted a note from the [City 1] Supervisor, which states that a [Province 1] worker spoke to the family service worker and was advised that the Applicant could call him directly and did not need to go through the [Province 1] society.

18The family service worker testified that he does not recall speaking to the Applicant more than twice and he does not remember sending him to another CAS to identify himself. The usual protocol to ensure information is being sent to the right person where they are out of town is for them to send in their identification or fax it in. The note from [Province 1] seems to support this.

19The family service worker did not make case notes about his contacts with the Applicant. Instead he used a “module cover sheet” and a “request for record checks or record disclosures” sheet. The request for record disclosure sheet states that the Applicant “was involved in a car accident in sept. 27 [year]. He stated RCMP took custody and released him to the hospital, then released into child protective services. He stated he contacted protection services in [Province 1] for support to receive his past child protection information from when he was a child. He stated he would like a page for page copy of the case file”. The family service worker testified that he found the file and reviewed it but that it did not contain any medical records. He called the Applicant and told him this information.

20The Applicant testified that the family service worker told him he would not get the records because they were sealed and “too bad”. The family service worker denies that he stated this. He testified that he told the Applicant the Society “didn’t have any medical records available to share with him” or that “we had no medical records that we could share”. When asked if the Applicant could have misunderstood him, he testified that he was very clear that with the Applicant that there were no medical records in the file. The witness’ final entry on the request for disclosure form states “no information available in regards to past Medical Records or there are no records within the Society. No further Role for child protection Service”. The family service worker did not send a copy of what was in the file to the Applicant.

21On June 24, 2015, after receiving the Application to the Board, the Executive Director of the Society wrote a letter of clarification stating that the file had been reviewed and that he understood that the Society responded in April 2011 by sending a copy of the full file to the Applicant. He later corrected this information (July 13, 2015 letter) after speaking to the child protection worker who advised that no copy had been sent. In addition, the Society advised the Applicant and the Board in its correspondence on this Application, that the Society received another request for file disclosure on October 6, 2014 and that the family service worker “communicated to [the Applicant] that there was no information regarding his past medical records contained in our file”. The Society attached copies of the entire file to its June 24, 2015 letter, including the requests for file disclosure and advised that “these copies represent every document contained in [the Applicant’s] file.

22The Executive Director testified at the hearing and confirmed this information. He also testified that he reviewed the file during settlement discussions (as indicated in the July 13, 2015 letter) and that he had a staff member review the file, search the Society’s records and microfiche in order to comply with the disclosure order and that there were no medical records in the file. He also had staff confirm that the Society keeps one file per child and that, if it had medical records, they would be in the Applicant’s file and not in a central file. The Society also contacted the hospital that took over from the [year] hospital to see if it had records going back to [year]. The Society was told that the hospital had destroyed all of those records and it could provide that information in writing to a former patient. The Society provided the contact information to the Applicant stating whom he should call if he wanted to pursue a letter from the hospital.

23The Executive Director agreed that while the file notes refer to a prescription, there was no copy of the prescription in the file.

24The Society should have provided the Applicant with a full copy of his file in 2014 when he clearly requested it. The family service worker told the Applicant the Society did not have medical information “available” or to “share”. The Applicant was clearly confused as he interpreted this call as a refusal based on third parties being involved and the file being sealed. The family service worker responded to the request to the extent that he searched the records and got back to the Applicant but he did not fully attend to the Applicant’s specific request by sending the file. He testified that he was clear, but from the Applicant’s perspective he was not clear. Use of terms like “not available” as noted in the case note and as testified to, could lead to confusion. Because the family service worker cannot remember all of his contact with the Applicant and did not take regular case notes, the Board must give weight to the Applicant’s recollection that he was “refused” a copy of the file. While this may have been the result of misinterpreting what the family services worker had told him, the Society had not taken all the steps that it could have to follow up on the request for file disclosure.

25Since there is no indication that there was anything stopping the Society from sending the file in 2014, it should have done so. The Applicant’s call was about more than medical records: it included a specific request for a page by page copy of the file. Providing the copy of the file would have been engaging in genuine communication by fully responding to the issue and it would have resulted in the Applicant being able to follow up once he got the file to help clear up his own confusion.

26The original child protection worker heard the Applicant and provided him with reasons. He had not asked for file disclosure at that time, but rather was inquiring whether medical documents were in the file. Her conversation with him and letter to him explained what was in the file and what was not. Her use of the incorrect dates was an obvious error and the Society has corrected that error.

27The Executive Director solved the problem once he clarified that the Applicant had not been provided with a copy of the full file. He testified that there was no reason for the Society to withhold any parts of the Applicant’s file from him and that they have not done so.

28The Board is satisfied that there are no medical records in the Society’s possession relating to the Applicant and that if it had that information, the Society would have sent it to the Applicant. The Society was ordered to provide the full file and it did. It had already provided it during the Board’s pre-hearing process. Once the application was filed with the Board, the Society made genuine and thorough attempts to check for medical information and it expressed its sympathy for the Applicant’s situation. The Society also made those inquiries of the hospital that it could make (without identifying a former patient) and provided the Applicant with a contact at the hospital. The Applicant is convinced, based on what he testified the police officer told him, that the police handed over medical information to the Society. This may have been the case but the fact remains that in 2011, 2014 and now, there are no medical records relating to the Applicant’s hospital stay in [year], in the Society’s file.

CONCLUSION

29The Society met its obligations to the Applicant under s. 68.1(4) 4 and 5 in 2011 by following up with his request and getting back to him with a detailed letter. The Society failed to meet its obligations to the Applicant in 2014 when he requested a copy of his full file. Once the Society received this Application, it took steps to solve the situation. Since the Society has done all that it can to search for medical records and has found none, the Board will not make any order.

30The parties agreed that in this case, it might be beneficial to the Applicant if he could give a copy of this decision to the Ontario Hepatitis C Assistance Plan. The Board has modified its usual confidentiality order to reflect this exception to the confidentiality of this process and this decision.

31This decision confirms that the Applicant’s medical records and information are NOT contained in the Society’s files. The Applicant was not aware of what the next steps would be if the records do not exist.

CONFIDENTIALITY ORDER

32Pursuant to Rules 30.1 and 30.2 of the Board’s Rules of Procedure parties and their representatives must not use, share, discuss or disclose any Board documents or decisions or any other documents or information provided or used in this application with anyone including through the media or on-line. The Board prohibits the use of any of this information for any purpose outside of the Board’s proceedings, except with an order of the Court or the Board, as appropriate. The Applicant may give a copy of this decision to Ontario Hepatitis C Assistance Plan for the sole purpose of his application to that plan.