Hunter v. North Halton Mental Health Clinic, 2010 HRTO 750

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Hunter

Applicant

-and-

The North Halton Mental Health Clinic,

Theresa Paine, Bob Nosal and Garry Carr

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: April 1, 2010

Citation: 2010 HRTO 750

Indexed as: Hunter v. North Halton Mental Health Clinic

1This is an Application filed on September 1, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the applicant has been discriminated against in the provision of goods, services and facilities on the basis of disability contrary to section 1 of the Code and that he has been the subject of further reprisal contrary to section 8 of the Code.

2The Application alleges that the North Halton Mental Health Clinic (the “Clinic”), including one of its nursing staff, Theresa Paine, has unfairly treated the applicant over the last three years in terms of the care, counseling and services it provides. The Application further alleges that the Clinic has harassed the applicant when he has attempted to access its services. The Application alleges that when the applicant attempted to complain about the way he has been treated by the Clinic to Bob Nosal, the Medical Officer of Health for the Regional Municipality of Halton (the “Region”) and to Garry Carr, the Region’s Regional Chair, he was essentially ignored. Theresa Paine, Dr. Nosal and Garry Carr have been named as personal respondents.

3The respondents’ counsel indicates that the North Halton Mental Health Clinic is part of the Region’s Health Department and that counsel has been retained by the Region and is representing all the respondents. To date the Tribunal has received the Application. The respondents have yet to file their Response.

RESPONDENTS’ REQUEST FOR AN ORDER

4The respondents state that any contact between the applicant and the Clinic and its staff is detailed in the Clinic’s file on the applicant. The respondents indicate that this file largely contains personal health information about the applicant including information about the care provided to the applicant by doctors and nurses at the Clinic. The respondents have filed a Request for an Order During Proceedings (the “Request”) asking to be able to use or disclose information from the applicant’s personal health information file to the extent that this information relates to or is a matter in issue in the Application in order to prepare their Response. The respondents further request a 30-day extension for filing their Response to begin from the date the Tribunal issues its order in response to its Request.

5The respondents submit in their Request that section 41 of Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A, as amended (“PHIPA”), would allow “health information custodians” to access the applicant’s personal health information and the right to use relevant portions of this material to prepare a Response as part of the Tribunal’s proceedings. The respondents submit that some of the respondents would be “health information custodians” as defined in PHIPA and as such could legally access the applicant’s personal health information and disclose information relevant to the Application. However, the respondents indicate that they are aware that some of the respondents may not be considered health information custodians. Given these facts, the respondents submit that the Applicant’s consent to use and disclose the applicant’s personal health information may be required, or, in the alternative, an order from the Tribunal may be necessary in order for the respondents to use and disclose this information.

6The Region wrote to the Applicant on December 23, 2009, asking for his consent to use and disclose his personal health information. In his Reply to the respondents’ Request, the applicant indicated that he was not prepared to provide this consent. The Applicant specifically states:

I will not be signing a release to my file. The full 1000 page report is not needed. There is information in there that has nothing to do with the case.

If the Tribunal should decide to order the release, I ask them to allow access only to what is relevant to the case itself.

DECISION

7The Tribunal has determined that health information practitioners, as defined under PHIPA, have the right under PHIPA to use or disclose an applicant’s personal health information for the purpose of preparing a Response to an Application (see Basic v. Royal Health Care Centre, 2009 HRTO 1834 and Basic v. Sherbourne Health Centre, 2009 HRTO 1904). This determination is based on section 41 of PHIPA, which states:

(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 contemplate proceeding in which 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;

(d) for the purpose of complying with,

(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, …

8PHIPA defines health information custodians to include a health care practitioner (see section 3.(1) 1) and a centre, program or service for community health or mental health whose primary purpose is the provision of health care (see section 3(1) 4. vii). Accordingly, I am satisfied that Theresa Paine and the Clinic are respondents who meet the definition of health information custodians in PHIPA and as such have a statutory right to disclose personal health information of the applicant’s pursuant to section 41(1)(a) as they are named respondents. This requires no order from the Tribunal.

9To further clarify, I am satisfied that the right to disclose personal health information under PHIPA in the present case means that the Clinic and Theresa Paine, as health information custodians, can review the collected information in the personal health file maintained by the Clinic and choose information to be relied on and disclosed as part of a Response as long as it is information that relates to or is a matter in issue in the applicant’s Application before the Tribunal. Limiting disclosure to information that is only relevant to the applicant’s Application would appear to meet the principal interest of the applicant as stated in his Reply to the respondents’ request.

10However, I am not satisfied, based on the information before me, that Dr. Nosal and Gary Carr meet the definition of health information custodians. It has not been shown that they have any right under PHIPA to access the applicant’s personal health information as contained in his personal health information file in order to determine what information to disclose as part of a Response to the Tribunal. It is also not clear that the Tribunal can issue an order giving them such access. Rule 1.7 of the Tribunal’s Section 34 Rules of Procedure can require a party or person to produce any document, information or thing. However, it is not clear that Rule 1.7 would extend to giving a party or person access to documents or information to which they are not legally entitled to in order to disclose such documents or information.

11Given these circumstances, I am of the view that the respondents can prepare their Response in the following manner. Only the Clinic and/or Theresa Paine, as health information custodians, shall have access to the applicant’s personal health information file kept at the Clinic for the purposes of determining what information contained therein might be related to or is a matter in issue in the Application and the allegations therein. Information or documents that they wish to disclose and use from this file can be relied on for the respondents’ Response and made known to the other respondents. They may also provide this information to their counsel for the purposes of preparing the Response.

12Respondents Dr. Nosal and Gary Carr should not have direct access to the applicant’s personal health file nor contribute to the decisions about what information or documents should be disclosed from this file. Presumably their involvement in preparing a Response would focus on describing the nature of their involvement with the applicant (and the Clinic) when the applicant complained to them about the services he was receiving from the Clinic and its staff.

13The respondents have 30 days from the date of this Interim Decision in which to file their Response.

14I would like to bring to the parties’ attention that if this matter does proceed to a hearing there will be an obligation to produce all arguably relevant documents in their possession and this may include arguably relevant medical documents from the applicant’s personal health file.

15I am not seized of this matter.