J.M. v. St. Joseph’s Health Care, 2010 HRTO 633

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.M.

Applicant

-and-

St. Joseph’s Health Care

Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: March 23, 2010

Citation: 2010 HRTO 633

Indexed as: J.M. v. St. Joseph’s Health Care

1This Interim Decision addresses the application of section 35 of the Mental Health Act, R.S.O. 1990, c. M.7, as amended (MHA) to this proceeding and provides additional directions regarding the hearing.

BACKGROUND

2In an earlier Interim Decision, 2009 HRTO 1811, the Tribunal set out the background to this Application, which is summarized again here for ease of reference. The Application arises out of the applicant’s interaction with various medical personnel working at or out of St. Joseph’s Health Care, a hospital, and its mobile crisis unit in the period September 2006 to June 2008. Among other things, the applicant alleges that she was discriminated against on the basis of disability when nurses with the mobile crisis unit attended at her home along with police and refused her request to decline a mental health assessment, threatened her with criminal arrest and harassed her. The applicant also alleges that she was discriminated against by a physician at the hospital when he reported her to the Ministry of Transportation because she was suspected of suffering from a mental illness.

3The Response refers to a history of contact between hospital personnel and the applicant commencing in 2003, which is several years prior to the events set out in the Application. While there is no obligation to file documents at this stage of the proceeding, the respondents have specifically included copies of the applicant’s medical records from this history of contact. The medical records include records generated by the respondent’s medical staff but also appear to include records from other institutions.

4In her Reply, the applicant requested anonymization of her identity and restriction of the publication of her name given the respondent’s apparent reliance on her medical file and the stigmatization that may result from being labelled mentally ill. In addition, the applicant requested that the health records provided by the respondent be suppressed until the respondent proves their relevancy or how they support their defence to the allegations. The applicant relied on section 35(9) of the Mental Health Act, R.S.O. 1990, c. M.7, as amended (MHA).

5In its Interim Decision the Tribunal anonymized on an interim basis and set out a timetable for receiving further submissions on the issue of anonymization. In addition, the Tribunal directed the parties to file submissions on the application of section 35(9) of the MHA and its relationship to section 41 of the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A, as amended (PHIPA) as follows:

a. Whether section 35(9) applies to the disclosure of some or all of the medical records in question in this proceeding and the reasons for its application or not, as the case may be. In their submissions, each party should set out any facts in support of their position and provide copies of any cases which they rely on;

b. In the event that a party takes the position that section 35(9) applies, are the terms governing disclosure engaged now by the respondent’s filing of medical records or at some future point in the proceeding;

c. In the event that section 35 (9) applies, what remedy or order is being sought.

d. What is the relationship, if any, between section 41 of the Personal Health Information Protection Act, 2004 and section 35(9) of the Mental Health Act.

6Subsequently, the timetable for submissions was adjusted in response to a request for an extension by the respondent.

7The Tribunal has now received submissions from the applicant and the respondent. Due to the timing of the filing of submissions, both parties have had an opportunity to reply to the submissions of the other.

DOES THE MHA GOVERN DISCLOSURE IN THIS PROCEEDING?

8Sections 35(9) and (11) of the MHA provide as follows:

(9) No person shall disclose in a proceeding in any court or before any body any information in respect of a patient obtained in the course of assessing or treating the patient, or in the course of assisting in his or her assessment or treatment, or in the course of employment in the psychiatric facility, except,

(a) where the patient is mentally capable within the meaning of the Personal Health Information Protection Act, 2004, with the patient’s consent;

(b) where the patient is not mentally capable, with the consent of the patient’s substitute decision-maker within the meaning of the Personal Health Information Protection Act, 2004; or

(c) where the court or, in the case of a proceeding not before a court, the Divisional Court determines, after a hearing from which the public is excluded and that is held on notice to the patient or, if the patient is not mentally capable, the patient’s substitute decision-maker referred to in clause (b), that the disclosure is essential in the interests of justice.

(11) Subsection (9) does not apply to a proceeding before a court or any other body that is commenced by or on behalf of a patient and that relates to the assessment or treatment of the patient in a psychiatric facility.

9In addition, section 41(1)(a) of PHIPA provides:

41 (1) A health information custodian may disclose personal health information about an individual,

(a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding;

10In commenting on section 35 of the MHA, the Divisional Court has suggested that the section balances competing interests such that:

The section recognizes that mental health records may be relevant to the adjudication of certain matters and, therefore, should be disclosed to the parties to those matters. As such, the section permits the disclosure of mental health records in various circumstances where they may be relevant to a matter before a court or administrative tribunal. However, the section also protects the privacy interests of individuals in their mental health records by setting out the instances in which the records may be disclosed and the procedures that must be followed prior to disclosure. (See, for example, Toronto Police Association v. Toronto Police Services Board, 2008 CanLII 56714 (On S.C.D.C.) at para 16 and the cases cited therein).

11Based on the parties’ submissions, there appears to be agreement that at least some of the records in question fall within the ambit of section 35. Their dispute concerns whether section 35(9) applies or whether the exception in section 35(11) is applicable to these records.

12The applicant argues that section 35(9) applies and that since the respondent did not follow the procedure as mandated by that subsection, the documents appended to the Response should not be accepted for filing. The applicant appears to suggest that the proper procedure for seeking “production” is to disclose the documents to the decision-maker who would then determine whether they were relevant. The applicant disputes the relevance of many of the records although she appears to acknowledge that medical records relating to her treatment on February 2, 2008 and August 17, 2008 are relevant, since they are records that relate squarely to the issues in her Application.

13The applicant argues that section 35(11) does not apply because the records were recorded by other health care staff working at other psychiatric facilities. She states that the fact that the respondent obtained the records from a third party at some stage should not diminish the protection afforded to third party records by section 35(9). The applicant further argues that the terms governing disclosure are engaged by the respondent’s filing of the records and that the respondent should be required to prove their relevancy now.

14The respondent acknowledges that as a custodian of personal health information and a designated psychiatric facility, the Hospital is subject to the provisions of the MHA and the PHIPA. The respondent relies on section 35(11) stating that the respondent can disclose the records in situations where it is a party to a legal proceeding commenced by a patient, and its records relate to a matter or matters in issue in that proceeding. The respondent argues that section 35(11) is consistent with section 41(1).

15The respondent disputes the applicant’s characterization of the records; according to the respondent they are clinical notes and records of the staff and physicians of the respondent. The respondent submits that arguments about the relevance or admissibility of any particular document are appropriately made during the hearing on the merits “if and when the Hospital seeks to have such document admitted”. In the alternative, the respondent requests additional information as to the applicant’s specific objections if the issue is to be determined before the hearing.

16I accept that section 35 of the MHA has application to “disclosure” of the medical records in question in this proceeding. However, I find that the respondent is not prohibited from disclosing the information described in section 35(9) because of the exception of section 35 (11). Section 35(11) states that subsection (9) does not apply to a proceeding before a court or any other body that is commenced by or on behalf of a patient and that relates to the assessment or treatment of the patient. I find that this language is broad enough to encompass the Application since it was commenced by the patient (i.e. the applicant) and it relates to her assessment and treatment.

17However, while I find that the respondent may not be prohibited from disclosing the documents in this proceeding because of the MHA, this finding should not be interpreted as providing any indication as to whether the documents are relevant to the issues in the Application or whether measures should be taken to address the applicant’s privacy interests. Although the applicant made some submissions on these issues, I find it premature to address them now.

18Instead, I find it appropriate to proceed as follows. At this stage, given that the respondent has suggested that it may not be relying on all of these documents and having regard to the sensitive nature of the documents, I find it appropriate for the Registrar to return the documents to the respondent, save and except those documents which were filed pursuant to question 20 on the Response (namely, the organization’s policy on discrimination or harassment, the organization’s complaints process, and the applicant’s internal complaint). In the normal course, once the Application is set down for hearing, the disclosure obligations will be triggered and I will presume that each party will file only those documents that it intends to rely on. I find it appropriate to issue the following directions so that any disputes that the parties may have regarding the documentation issues are particularized before the hearing on the merits.

19Accordingly, the Tribunal makes the following additional directions:

a. Within 15 days of the receipt of the respondent’s list of documents and a copy of each document on the list (as required by Rule 16.2), the applicant shall identify any documents she objects to, the basis of the objection and any submissions in support of her objection;

b. Within 14 days of the receipt of the applicant’s submissions, the respondents should provide their response and include in such response detailed submissions as to how the document[s] are relevant to the issues in the Application and Response;

c. Within 7 days of the receipt of the respondent’s submissions, the applicant may provide any reply.

20Unless otherwise directed, the Tribunal will address any objections to the documents at the commencement on the first day of hearing.

REQUEST TO ANONYMIZE

21In the Interim Decision, the Tribunal held that it would anonymize on an interim basis pending the receipt of further submissions. In addition, the Tribunal sought further particulars of the precise remedy the applicant seeks.

22The applicant has argued that anonymization is appropriate in this case because the possible disclosure of her mental health records would pose a real and substantial risk to her dignity and privacy rights. The applicant relies on the stigma that may affect one who is labelled mentally ill. In addition, the applicant argues that her future healthcare may be affected by disclosure of her name since staff at the hospital have “openly” expressed their dismay over the applicant filing complaints (although the source of this latter information is unclear). The applicant states that this reaction gives rise to a reasonable belief that her healthcare could be affected by a similar reaction to her filing this Application.

23With respect to the precise remedy sought, the applicant requests the following orders (subject to editing for clarity): that the initials, J.M. be used in place of the applicant’s name; all documentation and verbal communication by the Tribunal and anyone communicating with the Tribunal about this case be cautioned that there is a publication ban on the applicant’s name; that no identifying information be provided by the Tribunal about the applicant to anyone other than the party’s counsel or members of the Tribunal and its staff and that such information only be provided as needed; and that the Tribunal, any party, their counsel shall not divulge any information orally or written to anyone, except among themselves, that will directly or indirectly identify the applicant.

24The applicant submits that her request does not interfere with freedom of expression as the merits of the case “will still be adjudicated in an open hearing”.

25The respondent does not oppose the applicant’s request to anonymize the proceeding by using the applicant’s initials in place of the applicant’s full name on any “publicly available documents”. The respondent does not address specifically the orders requested by the applicant.

26In my view, the issue of anonymization and a partial publication ban (which appears to be the applicant’s request) is related to the medical records issue. Given that the latter issue has yet to be resolved, I find it premature to make any additional order beyond the earlier order to anonymize. Accordingly, the Tribunal’s order set out in para. 11a. and g. of its Interim Decision will continue until the Tribunal directs otherwise.