The Canadian Bar Association
Health

Health professionals deserve the same privacy rights as all citizens

Thanks to successful lobbying by Ontario nurses, the personal health information of physicians and other health professionals remains protected because a highly contentious part of Bill 87 was removed before the law was enacted, says Toronto health lawyer Tracey Tremayne-Lloyd.

“Physicians and other health professions owe their nursing colleagues a debt of gratitude because they fought for the right to keep their personal health information private and they were successful in so doing,” she tells AdvocateDaily.com.

“The nurses took this on and won it.”

Tremayne-Lloyd, principal of TTL Health Law, explains how a previous iteration of Bill 87, which mandated changes to the Regulated Health Professions Act (RHPA), required that all results of fitness to practise proceedings be published on the College register, regardless of whether a finding of incapacity was actually found. This meant that any health professional who would have come before a fitness to practise committee would have their health matters made public.

“This would have changed the Act materially in terms of the legal accountability and would have meant the abrogation of the fundamental rights of health professionals,” she says.  

“Once the information goes on the register, it’s regularly picked up on the internet so anyone searching the name of a professional will see the findings."

Publishing such personal information "is an invasion of a health professional’s right to privacy," Tremayne-Lloyd says.

"It’s damaging to them in terms of their standing. It’s undermining of them, especially if there is no finding," she says. "But even if there is a finding, it ought not to be that their health information should be published, while other citizens are protected by the personal health information and privacy laws.”

Tremayne-Lloyd says these proposed changes didn’t sit well with health professionals and a number of organizations made application to be heard by the standing committee of the Ontario Legislative Assembly to voice their opposition.

Stakeholders such as the Ontario Nurses’ Association and the Nurse Practitioners’ Association of Ontario indicated that publishing such information on the College register would tarnish the reputation of the health-care professional and provide the public with the appearance that they did something wrong. 

Tremayne-Lloyd says it was because of those stakeholders’ voices that the standing committee amended the original subsection 23(2) in Bill 87 so that only those findings where a health professional is found to be incapacitated will be published without a synopsis of the reasons why. If there is no finding of incapacity, nothing will be published. 

She explains that the RHPA strictly regulates all health professionals — including physicians, nurses, physiotherapists, psychologists and dentists — and sets out their rights and obligations. Rules around fitness to practise, contained in the RHPA, exist to ensure that a health professional is physically, mentally and psychologically able to practise their profession, she says. 

“If there is a complaint that a member of a health profession is somehow impaired by reason of illness, drugs or other reason, the regulator has the power under special provisions of the RHPA to do a full inquiry into the health of that professional,” Tremayne-Lloyd says. 

“All of their health matters are examined. Medical reports are produced. The regulator sends the professional to its own experts and specialists for assessment, and a committee is convened to examine that medical evidence. Ultimately, the committee makes a finding of whether the professional is incapacitated.”

In the past, these types of proceedings were held in-camera and not public. A summary of the proceedings would not be published on the College register, she adds.

Tremayne-Lloyd, who represents health professionals in her practice, says it is appropriate that this information remains private under Bill 87.

"Health professionals are citizens and should enjoy the same rights as other people to have their personal health information protected," she says. 

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