Academic journal article Health Law Review

Healing, Not Squealing: Recent Amendments to Alberta's Health Information Act

Academic journal article Health Law Review

Healing, Not Squealing: Recent Amendments to Alberta's Health Information Act

Article excerpt

Introduction

Disclosure of personal health information by health professionals to police is an issue that is becoming the subject of increasing discussion and legislative reform in Canada. For example, Ontario's provincial government brought legislation into force in 2005 requiring the reporting of gunshot wounds. (1) The new federal Quarantine Act allows for disclosure of personal information (including health information) to peace officers in circumstances where they are investigating specific offences under the Criminal Code. (2) And in Alberta, an amendment to the Health Information Act (3) [HIA] has recently come into force that permits disclosure of health information by custodians (4) to police to "protect public health and safety." (5) In this essay, we relate the legislative history of this amendment and argue that it is both unwise and unconstitutional.

The Amendment

The relevant provision of the amended HIA, s. 37.3, is worded as follows:

(1) A custodian may disclose individually identifying health information referred to in subsection (2) without the consent of the individual who is the subject of the information to a police service or the Minister of Justice and Attorney General where the custodian reasonably believes

(a) that the information relates to the possible commission of an offence under a statute or regulation of Alberta or Canada, and

(b) that the disclosure will protect the health and safety of Albertans.

(2) A custodian may disclose the following information under subsection (1):

(a) the name of an individual;

(b) the date of birth of an individual;

(c) the nature of any injury or illness of an individual;

(d) the date on which a health service was sought or received by an individual;

(e) the location where an individual sought or received a health service;

(f) whether any samples of bodily substances were taken from an individual.

Under this section, information relating to a health services provider from whom health services were sought or received may also be disclosed without the consent of that health care professional. (6)

Legislative History

Prior to the amendment, the HIA permitted custodians of health information to disclose personal health information to police as follows:

* service with a subpoena, warrant or other court order (s.35(1)(i));

* an investigation of an offence surrounding life-threatening injuries to a person if the individual suffering from the injuries does not object to such disclosure (s.35(1)(j)); or

* to avert or minimize an imminent danger to a person's health or safety (s.35(1)(m)). (7)

Police have expressed frustration with their perceived lack of ability to obtain health information since the implementation of this legislation. (8) They have lobbied for changes to broaden the circumstances in which they can acquire information without the need to obtain a warrant, and made submissions to the Select Special Health Information Act Review Committee [Select Special Committee] which considered the amendments to be made to the HIA. (9) Specifically, they requested the addition to the HIA of a provision similar to that found in other Alberta privacy legislation which allows personal information to be disclosed to the police to assist with an investigation. (10) The provisions found in the Personal Information Protection Act [PIPA] and the Freedom of Information and Protection of Privacy Act [FOIP] are extremely broad. They allow police to potentially obtain personal information (including health information under the jurisdiction of those two statutes) without first obtaining a warrant or establishing individualized suspicion. If this request had been granted, it would have meant similar potential to obtain health information governed by the HIA. (11)

In the alternative, police asked that custodians be given the discretion to release registration information (12) as defined by the HIA. …

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