Use proper channels when patient information requested: Rosen

By Staff

Health-care providers should take care when sharing a patient’s medical information with law enforcement, Toronto health lawyer Lonny Rosen tells

Ontario’s Court of Appeal recently upheld the drunk-driving acquittal of a woman involved in a fatal car crash. The court found a police officer violated the driver's privacy rights by requesting her urine-test results from a nurse before seeking a search warrant.

“This decision makes it clear that an individual's right to confidentiality in medical information extends to substances taken from their body," says Rosen, partner with Rosen Sunshine LLP, who frequently acts for health-care clients in privacy matters.

He says that Ontario’s Personal Health Information Protection Act, 2004 (PHIPA) provides for disclosure of otherwise confidential medical information about a patient for an investigation, as long as it is authorized by law, such as pursuant to a warrant.

“But PHIPA does not authorize providing information to police just because a health practitioner thinks it’s the right thing to do,” Rosen warns, noting that police must come up with their own reasonable and probable grounds for a warrant.

A unanimous three-judge panel 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.”

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 her 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 against the trial judge’s findings that the nurses acted as police agents after showing the order to draw blood had come from a doctor, 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.

“Even if a health-care provider thinks that justice would be served by the police, or other investigators, having certain medical information about a person, they have no authority to share it unless it’s through the proper channels,” Rosen says.

“Such requests are not limited to accident investigations by police. Health-care providers often receive requests for information relating to investigations of everything from health-care fraud to employee absences,” he says.

“Regardless of the seriousness of the allegation being investigated, providers must ensure that they have appropriate authorization for the release of personal health information — and should seek advice if they are unsure,” Rosen says.

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