Jerome v. DeMarco (No. 1)
1991-06-10
Ontario Board of Inquiry
Jerome, Complainant v. Paul DeMarco, Respondent
Date of Decision: June 10, 1991 Before: Ontario Board of Inquiry, H. A. Bassford Comm. Decision No.: 414
Appearances by: Ms. Joachim, Counsel for the Complainant Mr. Strosberg, Counsel for the Respondent
Summary
PRODUCTION OF DOCUMENTS — CONFIDENTIAL RECORDS — relevancy of medical records to proceedings
Summary: This is a preliminary decision regarding a request by the respondent, Dr. Paul DeMarco, that the medical records of all treating physicians of the complainant, Mr. Jerome, be made available to him.
Mr. Jerome is HIV-positive and his complaint alleges that dental treatment was refused to him by Dr. DeMarco because of his disability.
The Board of Inquiry refuses the request, finding that the information requested is not relevant to the complaint. Mr. Jerome agrees to voluntarily provide a medical report from his treating physician to confirm that he has AIDS and had it at the time in question. He also agrees to a questionnaire being sent to his physician to ask about some specific conditions which Mr. Jerome may have.
Decision
1This matter concerns the request by Mr. Strosberg, counsel for the respondent, that there be disclosure of the names of all treating physicians and that their records be made available from the time that Mr. Jerome was first diagnosed as being HIV-positive.
2Mr. Strosberg submits that there is a dispute about the facts as to whether "the dentist offered to do the checkup at that time that he was presented and have the cleaning done later or did not make that offer," and argues that there will be an issue of credibility in deciding this case. He points out that Mr. Jerome answered a questionnaire as to his health before his appointment, and argues that if the "questionnaire was not answered fairly and frankly, . . . that is a very important factor that can be used to weigh in the determination of whether or not Mr. Jerome was being truthful." He holds that a determination of this matter requires a disclosure of medical records. Mr. Strosberg states secondly that evidence will probably be heard that the psychiatric profile of people with AIDS is such that they tend "to be less than objective when they are dealing with other people," so that medical records as to Mr. Jerome's psychiatric history would also be relevant.
3Ms. Joachim, counsel for the Commission, argues against production of medical records on three grounds. First, Mr. DeMarco "took certain actions" based upon Mr. Jerome's disclosure, and if "he had enough medical information upon which to base his actions, he also now has enough medical information to defend those actions." Accordingly the medical records are not relevant to whether "it constitutes discrimination to refuse or postpone." Second, in view of the fact that Mr. Jerome told the receptionist and Dr. DeMarco of his condition, "to suggest that Mr. Jerome was not being frank about his condition is ridiculous." Third, the point about psychiatric conditions of people with AIDS is a stereotypical assumption about persons with AIDS and "would itself be detrimental to the cause of human rights."
4Ms. Joachim undertook, for reasons said to be unrelated to Mr. Strosberg's request to "provide a medical report from Mr. Jerome's treating physician to confirm that in fact he has AIDS, that he had it at the time in question, to confirm that he was taking at [the] time the medication that he informed Dr. DeMarco's office he was taking. Ms. Joachim would also ask whether Mr. Jerome had been referred for psychiatric treatment. In response to a question from the Chair, Ms. Joachim agreed to sending the questionnaire to the treating physician and asking his response to whether Mr. Jerome had the specific conditions mentioned therein.
5Given that no case law was presented, this decision must be based upon arguments to principle. Both counsel recognized the moral presumption of the confidentiality of medical records, with the need for balancing the confidential[it]y and the requirements for information in such cases as the instant one. The implication of this moral presumption is two-fold. First, it must be shown that the information is relevant. Second, the confidential information released should be kept to the minimum needed for the purposes at hand.
6No evidence has been given to support the generalization about the psychiatric condition of people with AIDS, so there are no grounds for presuming the need for such information. Given that there is notice of possible evidence bearing on this matter, Ms. Joachim's agreement to state whether Mr. Jerome has been referred for psychiatric treatment is appreciated.
7It appears that there will be a question about the factual nature of the conversation between Mr. Jerome and Dr. DeMarco. Although counsel disagree about how much relevance it will have to the case, both agree it will have some relevance. The question of the credibility of the parties to the conversation will accordingly be germane. The objective evidence of the questionnaire will bear upon Mr. Jerome's credibility. But the information needed to determine this does not require production of complete medical records; it only requires production of information sufficient to determine whether the questionnaire was answered correctly. The information the counsel for the Commission has undertaken to provide will give specific answers to the questions asked on the questionnaire.
8I accordingly deny Mr. Strosberg's request that I order the disclosure of the names of all treating physicians and that their records be made available. I do, however, direct Ms. Joachim to forthwith obtain the information she has undertaken to provide, and to provide Mr. Strosberg with that information as soon as she has it available.