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Document
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P-1271
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File #
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P-9500337
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Institution/HIC
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Ministry of Health
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Summary
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NATURE OF THE APPEAL: The Ministry of Health (the Ministry) received a request under the Freedomof Information and Protection of Privacy Act (the Act ) for access torecords relating to a named psychiatric patient, who was detained at apsychiatric hospital as a result of having been found not guilty by reason ofinsanity on two charges of attempted murder. The requester was seeking accessto information pertaining to the conditions of the patient's detention and/orrelease. The requester specified that he/she was not seeking access to thepatient's clinical information, respecting his psychiatric history, assessment,diagnosis, observation, examination, care or treatment, and was content thatsuch information be severed from the records. The Ministry denied access to the records pursuant to sections 65(2)(a) and(b) of the Act , which removes some information pertaining to patients ina psychiatric facility from the scope of the Act . The requesterappealed the Ministry's decision. The Ministry, the appellant and the patientwere notified of the appeal and given the opportunity to submit representations. Representations have been received from all three parties. RECORDS: As a result of a previous request to the Criminal Code Review Board, theappellant has access to the patient's Disposition Orders, which outline theareas in which the hospital Administrator may exercise discretion regarding theconditions of the patient's detention and/or release. The records at issue inthis appeal, which consist largely of correspondence between the Administratorand clinical staff as well as correspondence between the Administrator and localpolice, provide additional details regarding how the Administrator has exercisedhis discretion and the actual date, duration, location, conditions and purposeof the patient's temporary releases and/or day passes. DISCUSSION: PSYCHIATRIC PATIENT RECORDS Section 65(2) of the Act states as follows: This Act does not apply to a record in respect of a patient in apsychiatric facility as defined by section 1 of the Mental Health Act ,where the record, (a)is a clinical record as defined by subsection 35(1) of the Mental Health Act ; or (b)contains information in respect of the history, assessment, diagnosis,observation, examination, care or treatment of the patient. Section 35(1) of the Mental Health Act (the MHA ), referredto in section 65(2)(a) of the Act , states as follows: "Clinical record" means the clinical record compiled in apsychiatric facility in respect of a patient, and includes part of a clinicalrecord. Section 35(1) of the MHA defines "patient" as follows: "Patient" includes former patient, out-patient, formerout-patient and anyone who is or has been detained in a psychiatric facility. One of the requirements of the preamble of section 65(2) is that the recordsmust pertain to a patient in a "psychiatric facility as defined by section1 of the [ MHA ]". Section 1 of the MHA defines "psychiatricfacility" as one designated as such by regulation under that statute. I amsatisfied that the hospital in question is so designated. I am also satisfiedthat the appellant was a patient of the hospital when the records were created. The appellant submits that the requested information is not "clinical"information, but deals specifically with criminal law matters, and should not besubsumed under the classification of a clinical record. Based on the reference to " the clinical record compiled in a psychiatric facility" (emphases added) inthe definition of "clinical record" in section 35(1) of the MHA ,there must be some logical connection between a document and the patient inorder for it to be part of that individual's clinical record within the meaningof section 65(2)(a) of the Act and section 35(1) of the MHA . Based on my review of the record, it is clear to me that granting aninvoluntary patient day passes or temporary releases is part of the care and/ortreatment of the patient. While the decision to grant a day pass or temporaryrelease rests with the hospital Administrator, the request for a pass or releaseis made through the treatment team. It is apparent that one of the key aspectsto the exercise of the Administrator's discretion is the information he receivesfrom the treatment team. Accordingly, I find that the records which consist of reports by theclinical team or correspondence between the hospital Administrator and membersof the clinical team qualify as clinical records, and fall outside of the scopeof the Act by virtue of section 65(2). In order P-1213, Inquiry Officer John Higgins referred to a decision of theOntario Court (General Division) in Everingham v. Ontario (1992), 7 O.R.(3d) 291 (leave to appeal to the Court of Appeal denied at (1992), 9 O.R. (3d)478) and found that a record does not lose its status as a "clinical record"just because it has been copied and forwarded to another institution. In Everingham , the applicants were residents of a mental healthfacility. The Court considered whether information derived from the applicants'clinical records could be introduced into evidence, in affidavit form, by therespondents. Parts of this evidence derived from information which hadoriginated in the clinical record but had subsequently been provided to theLieutenant Governor's Board of Review. The Court found that the informationtaken directly from the clinical records, and the information from the clinicalrecords obtained from the Board of Review materials, should all be struck fromthe affidavit. In other words, the Court found that the fact that some clinical records hadleft the psychiatric institution and were in the possession of some other body,did not alter their character as clinical records and the prohibitions againstdisclosure in section 35 of the MHA would still apply. This would alsobe the case for information taken from clinical records which appears in anotherdocument. In my view, the Everingham case is relevant to the interpretation ofsection 65(2)(a) as it relates to the copies of the correspondence between thehospital Administrator and the police. While these records do not directlyinvolve the members of the treatment team, they do contain information which wasderived from records which I have found to be clinical records. Accordingly, Ifind that these records also fall within section 65(2)(a), and are excluded fromthe scope of the Act . In summary, I find that all of the records at issue in this appeal are notaccessible under the Act pursuant to section 65(2)(a). CANADIAN CHARTER OF RIGHTS AND FR
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Legislation
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Oct 07, 1996
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Type
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Order
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