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Privacy & Reporting
Some of the Information provided in this section is taken directly from the Canadian Mental Health Association Waterloo Wellington’s Policy on Disclosure of Information Permitted in Emergency or Urgent Circumstances and Mandatory Reporting Situations and it should be noted that although the content is based on legislation, services may apply it differently at the discretion of the organization’s Privacy Officer.
Privacy
For Health Care Providers
Ontario Privacy legislation (PHIPA/FIPPA) and the Regulated Health Professions Act (RHPA) do not prevent the rapid sharing of Personal Health Information (PHI) in certain situations. It is a given that personal information is protected by Ontario’s privacy and access laws, but it is imperative to know that these protections are not intended to stand in the way of disclosure of “need to know” vital information in emergency or other situations and in some cases, life-saving.
Subsection 40(1) of PHIPA (Personal Health Information and Protection of Privacy Act) provides that a health information custodian “may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons”. This provision may be relied on when health information custodians are considering disclosing personal health information to the police.
Helpful Definitions
PHI – Personal Health Information is any identifying information about clients that is in verbal, written or electronic form.
HIC – Health Information Custodian.
Circle of Care – The term “circle of care” is not a defined term in the Personal Health Information Protection Act, 2004 (PHIPA). It is a term commonly used to describe the ability of certain health information custodians to assume an individual’s implied consent to collect, use or disclose personal health information for the purpose of providing health care, in circumstances defined in PHIPA.
Reporting and Your Client’s Privacy
Disclosure of Information in Emergency or Urgent Circumstances
In emergency and limited other situations, personal information, including personal health information, may need to be disclosed in a timely fashion, even if the person’s consent has not been obtained.
The provider who encounters a situation or circumstance that includes emergency or critical situation affecting a person receiving services or public health and safety needs to understand what is permitted in certain circumstances and should consult with their Privacy Officer or delegate as time permits.
It is important to document in the clients’ health record the circumstances of the situation, what was disclosed, to whom, at what day and time and for what reason(s) the information was disclosed and why consent was not obtained.
Here are a few potential circumstances of disclosure of PHI without expressed consent
Providing Health Care
Providing Health Care
When consent cannot be obtained in a timely manner and disclosure is reasonably necessary for the provision of health care, personal health information may be disclosed to certain other health care providers (unless a person has pro-actively forbidden disclosure of the relevant personal health information).
Disclosure Related to Risk
Health and Safety of an Individual/Risk of Serious Harm to Person or Group
Disclosure Related to Risk
Health and Safety of an Individual/Risk of Serious Harm to Person or Group
It is permissible to disclose personal health information about an individual if there is a belief that on reasonable grounds, that the disclosure is necessary to eliminate or reduce a significant risk of serious bodily harm to a person or group of persons. The disclosure may be made to police, and in some instances, to the intended victim(s). Even if the individual gave express instructions not to disclose the relevant personal health information, the disclosure may be made. Providers are expected to use their best judgment in these situations; however, are advised to consult with management and/or privacy officers to ensure that the disclosure is appropriate. When appropriate, the client is advised of the decision to disclose the relevant information.Child Abuse/Neglect
Child Abuse/Neglect
Under the Child and Family Services Act (CFSA) “a child in need of protection includes a child who has suffered, or is at risk of suffering abuse, neglect, or emotional harm” (section 72(1) of CFSA. Individuals who have reasonable grounds to suspect a child is in need of protection must report directly to Family and Children’s Services (F&CS), however, are not obligated to report suspicion of abuse to the Police. If information provided to F&CS alleges that a criminal offence has been perpetrated against a child, F&CS will immediately inform the police and work with them according to established protocols for investigations.
Read the CFSA
Compassionate Circumstances
Compassionate Circumstances
PHIPA allows a health information custodian to disclose personal health information without consent in order to contact a relative, friend or potential substitute decision maker if an individual is injured, incapacitated or ill and unable to consent. It is also permissible to disclose personal health information about a deceased person or a person suspected of being deceased (cause of death, or identifying information) to spouse, partner, sibling or child if it is reasonably required to enable these persons to make decisions about their own health care or about the health care of their children. PHIPA allows a HIC to disclose PHI without consent about a deceased individual or one who is suspected of being deceased for the purpose of identifying the individual.
Impaired Driving Ability
Impaired Driving Ability
The Highway Traffic Act (HTA) requires that physicians report every individual 16 years of age or older that they serve, who, in the opinion of the physician is suffering from a condition that may make it dangerous to operate a motor vehicle. Reports are sent to the Registrar of Motor Vehicles, and include the name and address of the individual, as well as the medical condition that affects their ability to drive. While it is not necessary to obtain a patient’s consent before making a report under the Highway Traffic Act, the College of Physicians and Surgeons encourages that physicians inform the client in advance of doing so and where it was not possible to inform client beforehand, the College recommends that physicians do so after the report has been made. A report by a physician under the Highway Traffic Act will not automatically result in the suspension or downgrading of the client’s licence. Upon receipt, the Ministry of Transportation will review information received in accordance with the Highway Traffic Act and national medical standards. Other providers who encounter situations whereby the person they serve appears to be suffering from a condition that may impact their ability to safely operate a motor vehicle are encouraged to facilitate a medical appointment with the person’s family physician and/or arrange for the assessment through interdisciplinary team consultation.
Read the HTA
Duties and expectations vary with respect to reporting among professionals so each provider and clinician must consider their particular obligations.
Liability Protection
Executive Directors, Health Information Custodians and individuals acting on their behalf are protected from actions or proceedings if they act in good faith and do what is reasonable under the circumstances.
This protection may relate to:
- Disclosure (or non-disclosure) of information
- Giving of a required notice, if that person took reasonable care to give the required notice
More on Mandatory Reporting
The Long-Term Care Homes Act and Retirement Homes Act state that any staff member that has reasonable grounds to suspect that a resident from a long-term care or retirement home has or may be harmed or put at risk of harm at the home has a duty to report their concerns. A report must also be made if there is a suspicion on reasonable grounds that a home has or may misuse or misappropriate a resident’s money.
Mandatory Reporting Resources & Links
Long-Term Care ACTION Line: If you suspect or have evidence that elder abuse is taking place in the Long-Term Care Home it is mandatory to report it with the exception of residents themselves (who have a choice in the matter). The Long-Term Care Homes Act (s.24) states if a person who has reasonable grounds to suspect abuse has occurred or may occur shall immediately report the suspicion and the information to the Ministry of Health and Long-Term Care Director.
- 1-866-434-0144 (7 days a week, 8:30a.m.-7:00 p.m.)
- Local Health Integration Networks: Long-Term Care ACTION Line
Retirement Home Regulatory Authority (RHRA): You must report elder abuse immediately to the RHRA if you see or suspect harm or risk of harm to a resident resulting from: Improper or incompetent treatment or care, abuse of a resident by anyone or neglect of a resident by staff of the retirement home, unlawful conduct, or misuse or misappropriation of a resident’s money.
- 1-855-ASK-RHRA (1-855-275-7472)
- www.rhra.ca
The Director or the Registrar must look into all reports of abuse, and must send an inspector to the home immediately if the report is about harm or risk of harm. The operator of the home, whether a Long-Term Care or a Retirement Home, is also required to immediately contact the police if there is an alleged, suspected, or witnessed incident of abuse or neglect of a resident which may be a crime.
Crime Stoppers: If you suspect an older adult is being abused and/or a criminal act has taken place you can report anonymously to the police through Crime Stoppers.
- 1-800-222-TIPS (8477)
- ontariocrimestoppers.ca
Office of the Public Guardian and Trustee (OPGT): is responsible for protecting mentally incapable people; other responsibilities include protecting the public’s interest in charities, searching for heirs, investing perpetual care funds, and dealing with dissolved corporations.
In cases of financial or personal abuse, the OPGT can apply to the court to become the abused senior’s guardian on a temporary basis. The OPGT can also help the person get access to other services. They can intervene only if the person is believed to be mentally incapable and is at risk of harm or experiencing harm. There must be evidence/reason to believe that the person is incapable before the OPGT will investigate.
- The Guardian Investigation Unit: 1-800-366-0335 or 416-327-6348
- Office of the Public Guardian and Trustee (OPGT)
Visit Elder Abuse Prevention Ontario for more information on Legislation and Reporting.
