Hooper v. College of Nurses of Ontario

81 O.R. (3d) 296

Ontario Superior Court of Justice,

Divisional Court,

Jennings, Howden and Swinton JJ.

July 4, 2006

Professions -- Nurses -- College of Nurses appointing investigator pursuant to s. 75 of Health Professions Procedural Code to investigate allegations of professional misconduct made by nurse's employer -- Investigator requesting and obtaining nurse's file from employer's Occupational Health and Safety Department without nurse's consent -- File containing personal health information within meaning of s. 4 of Personal Health Information Protection Act -- Personal Health Information [page297] Protection Act permitting employer to release nurse's OHS file to College -- College's investigator having jurisdiction to request and use OHS file -- Personal Health Information Protection Act, 2004, S.O. 2004, c. 3.

When the hospital which employed the applicant nurse reported incidents of professional misconduct to the respondent College and advised the respondent that it had terminated the applicant's employment for cause, the Executive Committee of the respondent appointed an investigator pursuant to s. 75(a) of the Health Professions Procedural Code to investigate the allegations of professional misconduct or incompetence. The investigator interviewed the manager of the hospital's Occupational Health and Safety ("OHS") Department and subsequently made a written request for the applicant's OHS file because she believed it contained information relevant to her investigation. The applicant refused to consent to the release of the information. The employer released parts of the OHS file to the investigator. The applicant brought an application for judicial review of the actions of the respondent in acquiring her medical records from the hospital. She took the position that the respondent obtained confidential medical information without lawful authority and, therefore, had no legal right or ability to use it in any proceedings respecting her competence or her capacity.

Held, the application should be dismissed.

The documents in the applicant's OHS file were personal health information within s. 4 of the Personal Health Information Protection Act, 2004 ("PHIPA"). The file was not primarily an employment file. It was maintained by the OHS Department, not a human resources department, and a number of the documents were created for a health-related purpose. The documents dealt with the applicant's mental health status and capacity to return to work. The Department was providing "health care" within the meaning of s. 2 of the PHIPA, as it was making observations and assessments for a health-related purpose in order to evaluate the applicant's physical and mental condition and to determine if and how she could return to work safely. Such an assessment of fitness to work safely is an assessment for a health-related purpose and, in the words of s. 2, is carried out "to maintain an individual's physical or mental condition". Moreover, s. 4(3) of the PHIPA protects mixed records --- that is, identifying information about an individual that is not personal health information, but is contained in a record that contains personal health information about the individual.

Despite the fact that the documents were personal health information, PHIPA permitted the hospital to release them to the respondent. Section 43(1)(b) expressly provided that the hospital may disclose personal health information about an individual to the respondent for the purposes of enforcing the Regulated Health Professions Act, S.O. 1991, c. 18 and the Nursing Act, S.O. 1991, c. 32. Moreover, s. 9(2)(e) of PHIPA provided that nothing in the Act interfered with the respondent's regulatory activities.

The respondent's investigator had jurisdiction to request and use the OHS file. Section 76 of the Code confers broad powers to investigate on an investigator and confers discretion as to how to proceed with the investigation. The investigator is not restricted to a particular act of misconduct. The investigator must have reasonable grounds for believing that information is relevant. However, the threshold of relevance is low, given that he or she is at an early stage in the proceedings, gathering documents and information about possible misconduct. The investigator in this case sought what she believed to be information relevant to her investigation, and there was no evidence of bad faith. Section 76 does not distinguish [page298] between the health records of a patient and of a member. As s. 76(2) permits the investigator to examine relevant documents at the business premises of the member, s. 76(4) (which states that the section applies despite any provision in any Act relating to the confidentiality of health records) must be intended to permit him or her to examine any relevant health records voluntarily produced and to copy them pursuant to s. 78 without obtaining consent -- including the records produced here.

APPLICATION for judicial review of the actions of the College of Nurses in acquiring the applicant's medical records.

Cases referred to Brett v. Board of Directors of Physiotherapy (1992), 1992 7698 (ON SC), 9 O.R. (3d) 613, [1992] O.J. No. 1196, 92 D.L.R. (4th) 693 (Div. Ct.) Statutes referred to Nursing Act, S.O. 1991, c. 32, s. 6 Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, ss. 1, 2, 4(1), (2), (3), (4), 7, 9(2), 43(1) Public Inquiries Act, R.S.O. 1990, c. P.41, Part II Regulated Health Professions Act, S.O. 1991, c. 18, Sched. 2 (Health Professions Procedural Code), ss. 1, 57, 58, 59(2), 60, 63, 75, 76(1), (2), (3), (4), 78

Elizabeth McIntyre and Mia London, for applicant. Linda Rothstein and Megan Shortreed, for respondent.

The judgment of the court was delivered by

[1] SWINTON J.: -- The applicant, Elaine Hooper, seeks judicial review of the actions of the College of Nurses of Ontario in acquiring her medical records from her employer. She takes the position that the College obtained confidential medical information without lawful authority and, therefore, the College has no legal right or ability to use it in any College proceedings respecting her competence or her capacity and should return the documents to the employer.

[2] This application raises important issues with respect to the interpretation of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3 ("PHIPA") -- in particular whether occupational health records of an employee who is a member of the College may be disclosed to the College and used by it in the course of an investigation when the employee has not given consent to the disclosure.

The Statutory Framework

[3] The College of Nurses of Ontario is the regulatory body for the profession of nursing in the province. It was created by statute and is continued as a regulatory body under the [page299] Nursing Act, S.O. 1991, c. 32, s. 6. Along with other colleges regulating health professionals, the College of Nurses is subject to the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c. 18 (the "Code"), which is a detailed code prescribing the objects, structure, duties and powers of the colleges.

[4] When the College becomes aware of an issue related to a nurse's practice, that concern is generally dealt with through one of two streams: discipline or fitness to practise (incapacity). At times, both statutory streams become engaged, as in this case, but each has a distinctive process, authority and safeguards.

[5] Section 57 of the Code governs the commencement of an investigation into the capacity of a nurse. The Executive Director of the College (the Registrar in the legislation) shall make the inquiries that he or she considers appropriate and report the results to the Executive Committee. That committee has the authority to appoint a Board of Inquiry (the "Board") pursuant to s. 58 of the Code. After conducting an inquiry, the Board reports to the Executive Committee, which makes the decision whether to refer the matter to the Fitness to Practise Committee.

[6] Pursuant to s. 59(2) of the Code, the Board may require the nurse to be assessed by a health professional of its choice "if, after making inquiries, a board of inquiry has reasonable and probable grounds to believe that the member who is the subject of the inquiry is incapacitated". The term "incapacitated" is defined in s. 1 to mean:

. . . in relation to a member, that the member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member no longer be permitted to practise or that the member's practice be restricted.

Section 63 of the Code requires the Board to give the nurse notice of the intention to make the proposed order for assessment and to give her the opportunity to make written submissions.

[7] In addition to the incapacity stream, the Executive Director of the College also has the power to appoint investigators to conduct a professional misconduct or discipline investigation pursuant to s. 75 of the Code. It reads:

75. The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Executive Committee approves of the appointment; [page300]

(b) the Executive Committee has received a report from the Quality Assurance Committee with respect to the member and has requested the Registrar to conduct an investigation; or

(c) the Complaints Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation

[8] The Code provides an investigator with broad powers of investigation. In particular, s. 76 provides:

76(1) An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

(2) An investigator may, on the production of his or her appointment, enter at any reasonable time the business premises of the member and may examine anything found there that is relevant to the investigation.

(3) No person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation.

(4) This section applies despite any provision in any Act relating to the confidentiality of health records.

[9] Once an investigation is complete, the Executive Director reports the results to the Executive Committee, which decides whether or not to refer specified allegations of professional misconduct or incompetence to the Discipline Committee.

Factual Background

[10] On February 13, 2004, the applicant's employer, Sunnybrook and Women's College Health Sciences Centre (the "Hospital"), wrote to the College advising that it had terminated the applicant's employment for cause. It reported incidents of professional misconduct and discipline history dating from September 2002. It also reported that the applicant had been cleared medically by its Occupational Health and Safety Department ("OHS") to return to work in March 2003.

[11] The Executive Committee of the College then appointed an investigator pursuant to s. 75(a) of the Code to investigate the allegations of professional misconduct or incompetence. The applicant received a letter from the College dated September 8, 2004 informing her that it intended to investigate her practice.

[12] The investigator interviewed several individuals at the Hospital about the applicant's employment and disciplinary history. Included among them was the current manager of the OHS Department, Wendy Morgan, as the investigator had been told Ms. Morgan had additional information. After these interviews, the investigator made a written request for the applicant's OHS [page301] file on December 17, 2004, because she believed that it contained information relevant to her investigation.

[13] On January 17, 2005, the College informed the applicant by letter that it wished to investigate her health status. The investigator requested that she sign health information consent forms which would permit the investigator to acquire information from the applicant's health care providers. The applicant's counsel responded on her behalf, declining to provide the release forms based on the lack of substantiation of any health concerns disclosed in the letter.

[14] On February 15, 2005, the Hospital released parts of the OHS file to the investigator. As Ms. Morgan had determined that the documents were held primarily for the purpose of employment, one of the grounds in PHIPA permitting disclosure, she concluded that they could be released in accordance with PHIPA. Before releasing the documents, she had consulted with the Hospital's specialist on privacy issues and the Director of Labour Relations.

[15] Subsequently, in a letter from the investigator dated February 24, 2005, the applicant received information about health concerns that had evidently come from the Occupational Health Nurse at the Hospital, including information derived from her own physician. The applicant had signed a form for the OHS Department which authorized her physician to release information relevant to her medical condition to the Department, but the form stated"I understand that this information is privileged and confidential and intended only for the use of staff in the Occupational Health & Safety Department."

The Privacy Legislation

[16] PHIPA was enacted in 2004 for the purpose of regulating the collection, use and disclosure of personal health information of individuals. Its purposes are set out in s. 1, with the first purpose, set out in para. (a), to establish rules for the collection, use and disclosure of personal health information about individuals.

[17] Important to the resolution of this case is s. 4, which deals with "personal health information". It reads:

4(1) In this Act"personal health information", subject to subsections (3) and (4), means identifying information about an individual in oral or recorded form, if the information,

(a) relates to the physical or mental health of the individual, including information that consists of the health history of the individual's family, [page302]

(b) relates to the providing of health care to the individual, including the identification of a person as a provider of health care to the individual, . . .

(2) In this section"identifying information" means information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual.

(3) Personal health information about an individual includes identifying information about the individual that is not personal health information described in subsection (1) but that is contained in a record that contains personal health information described in that subsection about the individual.

(4) Personal health information does not include identifying information contained in a record that is in the custody or under the control of a health information custodian if,

(a) the identifying information contained in the record relates primarily to one or more employees or other agents of the custodian; and

(b) the record is maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees or other agents.

[18] Pursuant to s. 7, PHIPA applies in the case of conflict between it and any other Act or regulation, if it is impossible to comply with both, unless the other provision expressly takes precedence. However, s. 9(2)(e) deals with the interaction of PHIPA and the regulatory activities of professional colleges, stating:

9(2) Nothing in this Act shall be construed to interfere with,

(e) the regulatory activities of a College under the Regulated Heath Professions Act, 1991, the College under the Social Work and Social Service Work Act, 1998 or the Board under the Drugless Practitioners Act; . . .

In addition, s. 43(1)(b) states:

43(1) A health information custodian may disclose personal health information about an individual,

(b) to a College within the meaning of the Regulated Health Professions Act, 1991 for the purpose of the administration or enforcement of the Drug and Pharmacies Regulation Act, the Regulated Health Professions Act, 1991 or an Act named in Schedule 1 to that Act; . . .

The Issues

[19] The applicant takes the position that the College investigator had no authority to acquire confidential occupational [page303] health and safety records pursuant to the investigative powers under s. 75(a) of the Code. In doing so, the College acted without statutory authority and denied the applicant the protections provided in ss. 60 and 63 of the Code. Moreover, the Hospital had no statutory authority to provide the OHS documents to the College.

[20] The respondent submits that the College had the authority to request the OHS file during the investigation. Moreover, the release of the file was permissible under PHIPA, either because it is not protected personal health information or because the Hospital could disclose the information to the College to assist in its regulatory activities.

Did the Hospital have statutory authority to provide the OHS documents to the College?

[21] The Hospital is not a party to this application for judicial review, nor has its decision to release the information been the subject of a complaint under PHIPA or a grievance under the collective agreement. Nevertheless, the applicant submits that the Hospital erred in releasing the OHS documents to the investigator, as this was contrary to PHIPA.

[22] In contrast, the College submits that the information is not "personal health information" under PHIPA, and therefore, there was no statutory restriction on the release of the information. In the alternative, even if the documents were personal health information, PHIPA expressly permits the Hospital to provide such information to the College.

[23] Pursuant to s. 4(4) of PHIPA, quoted earlier"personal health information" does not include identifying information relating primarily to one or more employees where the record is "maintained primarily for a purpose other than the provision of health care or assistance in providing health care to the employees". "Health care" is defined in s. 2 of the Act:

"health care" means any observation, examination, assessment, care, service or procedure that is done for a health-related purpose and that,

(a) is carried out or provided to diagnose, treat or maintain an individual's physical or mental condition, . . .

[24] Ms. Morgan, manager of the OHS Department of the Hospital, stated in an affidavit that the Department did not provide any medical treatment to the applicant, and that the OHS file was predominantly an employment file.

[25] The OHS documents were presented to the court in a sealed form, and I have reviewed them. Despite Ms. Morgan's opinion, I am of the view that the documents are personal health information within s. 4 of PHIPA. A review of the documents [page304] shows that the file was not primarily an employment file. It was maintained by the OHS Department, not a human resources department, and a number of the documents were created for a health-related purpose.

[26] More precisely, the documents deal with the applicant's mental health status and capacity to return to work. While they include discussion of her behaviour, among the documents is a report from her personal physician provided to the OHS Department after she signed a release. There are also assessments of her condition by the OHS physician, as well as observations about her health and behaviour made by other members of the Department and references to her medication.

[27] Although Ms. Morgan stated that the Department provided no medical treatment, in my view, it was providing "health care" within the meaning of s. 2 of PHIPA: it was making observations and assessments for a health-related purpose in order to evaluate her physical and mental condition and to determine if and how she could return to work safely. Indeed, in Ms. Morgan's words,

The OHS Department was required to determine whether Ms. Hooper had a medical condition that impacted on her fitness to carry out her duties as a nurse and to clear her for a safe return to work when appropriate and, if necessary, on certain limitations.

Such an assessment of fitness to work safely is an assessment for a health-related purpose and, in the words of s. 2, is carried out to "maintain an individual's physical or mental condition".

[28] Moreover, s. 4(3) protects mixed records -- that is, identifying information about an individual that is not personal health information, but is contained in a record that contains personal health information about the individual. Indeed, the College, in its Practice Standard dealing with "Confidentiality and Privacy -- Personal Health Information" (2004) discusses mixed records at p. 4. It states that an occupational health nurse may disclose a note substantiating an employee's absence from work only if any health information contained therein is separated from the note. At p. 13, it also states that a manager is not entitled to any personal health information, including information about the nature of an illness, diagnosis, or plan of treatment.

[29] Therefore, given the information contained in the OHS documents, I conclude that they were personal health information within s. 4 of PHIPA.

[30] Nevertheless, PHIPA permitted the Hospital to release them to the College. Section 43(1)(b) expressly provides that the Hospital may disclose personal health information about an [page305] individual to the College for the purposes of enforcing the RHPA and the Nursing Act. Moreover, s. 9(2)(e) of PHIPA provides that nothing in the Act interferes with the College's regulatory activities.

[31] Indeed, the Hospital's policy on Access and Disclosure of Personal Health Information recognized that it could disclose personal health information to the College without the consent of the individual concerned (para. 3.13). It is noteworthy that no grievance has been filed against the Hospital under the governing collective agreement, nor has a complaint been filed with the Information and Privacy Commissioner under PHIPA.

Did the College have jurisdiction to request and use the OHS file?

[32] The applicant submits that the investigator, appointed pursuant to s. 75(a) of the Code, is restricted to searching for information and documents relevant to the investigation. Given that the investigator was appointed pursuant to s. 75(a) when she requested the OHS file, the applicant submits that there was no jurisdiction to request the file, since it related to the applicant's health and capacity -- matters that were not relevant to an investigation of professional misconduct and incompetence. Instead, she submits, the procedure dealing with incapacity set out in ss. 57-59 should have been followed -- that is, there should have been a request for her consent to release medical information and a board of inquiry appointed if she refused.

[33] Given the report from the Hospital that the applicant had been terminated for professional misconduct, the College had the authority to appoint the investigator pursuant to s. 75(a) to determine whether the applicant had committed an act of professional misconduct or was incompetent. Section 76 confers broad powers to investigate on the investigator and confers discretion as to how to proceed with the investigation. For example, s. 76(1) states that the investigator has the power to inquire into and examine the practice of the member and has all the powers of a commission under Part II of the Public Inquiries Act, R.S.O. 1990, c. P.41.

[34] This court discussed the powers of an investigator appointed by the Physiotherapy Board in Brett v. Board of Directors of Physiotherapy (1992), 1992 7698 (ON SC), 9 O.R. (3d) 613, [1992] O.J. No. 1196 (Div. Ct.). At paras. 18 and 20, the court stated that the investigator in that case had a wide discretion in selecting methods of investigation, so long as the impugned activity falls within the contemplation of the legislative scheme. [page306]

[35] Similarly, in this case, the investigator has broad powers of inquiry. She was not restricted to a particular act of misconduct. Pursuant to s. 76(2), she may enter the business premises of the member at any reasonable time and "may examine anything found there that is relevant to the investigation". The investigator must have reasonable grounds for believing that information requested is relevant. However, the threshold of relevance is low, given that he or she is at an early stage in the proceedings, gathering documents and information about possible misconduct.

[36] In my view, the College investigator had the jurisdiction to request and to use the OHS documents in the course of her investigation. In this case, she sought what she believed to be information relevant to her investigation, and there is no evidence of bad faith here. When she interviewed Ms. Morgan, the manager of the Hospital's OHS Department, Ms. Morgan indicated her belief that the applicant's OHS records contained information relevant to the investigation of the alleged misconduct. The investigator explained in an affidavit that she requested the records in an effort to determine whether or not there were health concerns engaged by the alleged misconduct.

[37] The College submits that the records were not confidential, given s. 76(4) of the Code, which states that the section applies despite any provision in any Act relating to the confidentiality of health records. However, the applicant submits that this subsection refers only to the health records of patients, and not to the personal health records of a member of the College.

[38] Section 76 of the legislation does not distinguish between the health records of a patient and of a member. As s. 76(2) permits the investigator to examine relevant documents at the business premises of the member, s. 76(4) must be intended to permit him or her to examine any relevant health records voluntarily produced and to copy them pursuant to s. 78 without obtaining consent -- including the records produced here.

[39] While PHIPA offers a broad protection to personal health information, a legislative policy choice has clearly been made in s. 76(4) of the Code and in ss. 9(2) (e) and 43(1)(b) of PHIPA to allow disclosure to the governing colleges of health professions when the colleges are exercising their jurisdiction to protect the public interest.

Conclusion

[40] For these reasons, the application for judicial review is dismissed. As agreed by the parties, costs to the respondent College are fixed at $7,500 payable by the applicant. [page307]

[41] The occupational health records in dispute were filed with the court for this hearing in a sealed envelope. As requested by the applicant, it is ordered that those records be sealed and not form part of the public record.

Application dismissed.