A medical professional's obligations regarding police requests

By Staff

Health-care providers need to stand their ground when police officers express an interest in patients’ medical information, says Toronto health lawyer Brooke Shekter.

Ontario’s Court of Appeal recently upheld the drunk-driving acquittal of a woman involved in a car crash in which a person was killed after finding a police officer asked a nurse for her urine-test results before seeking a search warrant.

The unanimous three-judge panel of Ontario’s top court ruled the trial judge was right to exclude the evidence under s. 24(2) of the Charter.

“Intentionally obtaining confidential medical information and using it to obtain search warrants is serious Charter-infringing state conduct from which the court ought to distance itself,” the appeal court judges wrote. “To admit the evidence in this case would permit the police to obtain evidence illegally, and then, as observed by the trial judge, attempt to justify this action by getting a warrant. Public confidence in the administration of justice is best served in this case through the exclusion of the evidence obtained in violation of the Charter.”

Shekter, associate with TTL Health Law, says she can understand why medical professionals might feel intimidated by law enforcement officers.

“The police were obviously in the wrong, and completely infringed on this person’s Charter rights, but at the same time, there is really no excuse for self-regulated health professionals not to be aware of their duties, and the importance of confidentiality,” she tells “The better you know your obligations, the harder it is for someone to shake you from them.

“If you’re going to hold these positions in a publicly funded health-care system, you have to understand the legal and ethical obligations that come with them,” adds Shekter, explaining that Ontario’s Personal Health Information Protection Act actually provides for disclosure of otherwise-confidential medical information about a patient for an investigation, as long as it is authorized by a warrant.

The case dates back to a 2014 crash, in which the defendant’s car collided head-on with another vehicle travelling in the wrong direction, killing the driver of the wrong-way vehicle.

According to the appeal court decision, two police officers questioned the defendant at the hospital but formed no suspicions that she was impaired or had caused the accident, despite the faint odour of alcohol.

The woman eventually agreed to the taking of urine and blood samples, after initially resisting due to a phobia of needles. When the results came in, a police officer testified that he overheard a nurse mention the ethanol levels in her urine with a surprised tone, and secured a search warrant for them on that basis.

However, a trial judge found that the warrant was invalid, because the officer had actually asked the nurse for the results, and excluded the evidence. In addition, the judge found that the nurses were “acting as police agents” in taking her blood over her objections.

At the appeal court, the Crown successfully argued that the trial judge erred in finding that the nurses acted as police agents as it was the doctor who ordered the blood test, and the woman had consented.

Despite that, the panel agreed that the police officer’s Charter-infringing conduct in asking for the test results remained at the serious end of the fault spectrum.

“The police intentionally obtained information from hospital staff in breach of medical confidentiality, and relied on that information to obtain a warrant that otherwise could not have been issued,” the panel wrote, agreeing with the trial judge that the evidence must be excluded.

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