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Document
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P-215
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File #
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900199
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Institution/HIC
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Ministry of Health
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Summary
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O R D E R
INTRODUCTION:
This appeal was received pursuant to subsection 50(1) of the
Freedom of Information and Protection of Privacy Act, 1987, as
amended (the "Act") which gives a person who has been given
notice of a request for a record under subsection 28(1) a right
to appeal any decision of a head to the Commissioner.
On January 5, 1990, the undersigned was appointed Assistant
Commissioner and received a delegation of the power to conduct
inquiries and make Orders under the Act.
The facts of this case and the procedures employed in making
this Order are as follows:
1. On March 19, 1990, the Ministry of Health (the
"institution") received a request from an individual as
follows:
I am requesting access to two (2) documents.
The first is a letter written to the then
Administrator of the Mental Health Centre,
Penetanguishene, Ontario, Mr. L.W. McKerrow
on October 22, 1984, by [a named
individual].
I would also like Mr. McKerrow's response to
[a named individual] dated October 23, 1984.
- 2 -
[IPC Order P-215/January 28, 1991]
2. On April 6, 1990, the institution issued notice to a person
(the "affected person") whose interests might be affected
by the disclosure of the records, in accordance with
subsection 28(1)(b) of the Act. The head received
representations from the affected person as to whether the
records should be disclosed.
3. On May 3, 1990, the institution wrote to the affected
person and to the requester advising that it had decided to
grant access to the requested records, but that it would
sever and
withhold the home address of the affected person contained
in the records, pursuant to section 21 of the Act.
4. By letter dated May 4, 1990, the affected person appealed
the decision of the head to disclose the records. The
appellant claimed that the following provisions of the Act
applied to cause the records to be withheld from
disclosure: Subsections 14(1)(e), 14(1)(f), 14(2)(d),
14(3), section 20, subsections 21(1)(a), 21(1)(f),
21(2)(e), 21(2)(f), 21(2)(h), 21(2)(i), 21(3)(a), 21(5),
65(2)(a) and 65(3). Notice of the appeal was given to the
institution, the appellant and the requester.
5. The records were obtained and reviewed by the Appeals
Officer assigned to the case. The Appeals Officer contacted
the institution, the appellant and the requester in an
effort to mediate a settlement of the appeal. During the
course of mediation, the appellant raised additional
exemptions as applying to the records: subsections 10(1),
10(2), 14(1)((d), section 19, subsections 21(2)(d), 42(a)
- 3 -
[IPC Order P-215/January 28, 1991]
and (b), section 43, subsections 49(a),(b), (d), (e) and
65(2)(b).
6. Settlement was not effected and the matter proceeded to
inquiry. Notice that an inquiry was being conducted to
review the decision of the head was sent to the
institution, the appellant and the requester. Enclosed
with the Notice of Inquiry was a report prepared by the
Appeals Officer, intended to assist the parties in making
their representations concerning the subject matter of the
appeal. The Appeals Officer's Report outlines the facts of
the appeal, and sets out questions which paraphrase those
sections of the Act which appear to the Appeals Officer or
any of the parties, to be
relevant to the appeal. The Appeals Officer's Report
indicates that the parties, in making representations, need
not limit themselves to the questions set out in the
Report.
7. Written representations were received from the appellant,
the institution and the requester. I have considered all
of the representations in making my Order.
PURPOSES OF THE ACT/BURDEN OF PROOF:
It is important to note at the outset the purposes of the Act as
outlined in subsections 1(a) and (b). Subsection 1(a) provides
a right of access to information under the control of
institutions in accordance with the principles that information
should be available to the public and that necessary exemptions
from the right of access should be limited and specific.
- 4 -
[IPC Order P-215/January 28, 1991]
Subsection 1(b) sets out the counter-balancing privacy
protection purpose of the Act. This subsection provides that
the Act should protect the privacy of individuals with respect
to personal information about themselves held by institutions
and should provide individuals with a right of access to their
own personal information.
PRELIMINARY ISSUE:
There is a preliminary matter which I will address prior to
considering the application of the exemptions to the requested
records. In his letter of appeal, the appellant stated that:
The record is contained in and is part of my Clinical
File as defined by clause 29(1)(a) of the Mental
Health Act and therefore this Act does not apply to
this record. Therefore access should be denied.
The Freedom of Information and Protection of Privacy Act, 1987,
as amended, expressly provides that it does not apply to certain
records. Specifically, subsection 65(2) provides as follows:
This Act does not apply to a record in respect of a
patient in a psychiatric facility as defined by clause
1 (p) of the Mental Health Act, where the record,
(a) is a clinical record as defined by
clause 29(1)(a) of the Mental
Health Act; or
(b) contains information in respect of
the history, assessment,
(c) diagnosis, observation,
examination, care or treatment of
the patient.
- 5 -
[IPC Order P-215/January 28, 1991]
In response to the question of whether the requested records
were "in respect of" a patient in a psychiatric facility, as
defined by clause 1(p) of the Mental Health Act, the institution
submitted that:
The Mental Health Centre, Penetanguishene, is a
facility within clause 1(p) of the Mental Health Act
for the "observation, care and treatment of persons
suffering from mental disorder" and it is designated
as a psychiatric facility under Ontario Regulation 609
under the Mental Health Act.
The "record" is not itself "in respect of a patient in
a psychiatric facility" because at the time the letter
was written the Appellant was not a patient in a
psychiatric facility.
I have reviewed the records at issue and agree that they were
written at a time when the appellant was not a patient in a
psychiatric facility. However, this fact alone is not
dispositive
of the issue. Both letters refer to events in which the
appellant was involved, and which occurred during the time when
the appellant was a patient in a psychiatric facility under the
Mental Health Act. Subsection 29(1)(b) of the Mental Health
Act provides that:
"patient" includes former patient, out-patient, and
former out-patient.
Accordingly, I am satisfied, that the records in issue are "in
respect of a patient in a psychiatric facility".
- 6 -
[IPC Order P-215/January 28, 1991]
I must now consider whether the requested records are clinical
records as defined by clause 29(1)(c) of the Mental Health Act.
I am advised that the records are contained in the appellant's
clinical file at the mental health facility. They also appear
to be contained in the files of the Administrator of the
facility. The fact that the records may be located in files
other than or in addition to the patient's clinical file is not
of itself dispositive of whether the record is a clinical
record.
Subsection 29(1)(c) of the Mental Health Act provides as
follows:
In this section,
(a) "clinical record" means the clinical record
compiled in a psychiatric facility in
respect of a patient, and includes a part of
a clinical record.
Regarding whether the records were "compiled" in respect of a
patient in a psychiatric facility, the institution submits:
The Appellant was a former patient, but a "clinical
record" can only be compiled with respect to a person
who is under the observation, care and treatment in a
psychiatric facility. The record was not therefore
compiled in a psychiatric facility nor was it compiled
in respect of a patient in the facility.
The definition of "clinical record" contained in the Mental
Health Act does not limit the class of records to those records
- 7 -
[IPC Order P-215/January 28, 1991]
which were created at the time the subject of the records was a
patient. It is possible that records created prior to the
subject's becoming a patient could have relevance to the care,
observation and treatment of a patient, and might therefore be
of assistance to health officials charged with treating the
patient.
The word "compile" is defined in the Concise Oxford Dictionary
as follows: "collect (materials) into a list, volume, etc.;
make up (volume etc.) of such materials; accumulate." In my
view, the records at issue in this appeal have been accumulated
or compiled in the appellant's clinical file by officials
charged with the care of a psychiatric patient.
Subsection 65(2)(b) of the Freedom of Information and Protection
of Privacy Act, 1987, provides a list of types of records which
are clearly treatment based in relation to a psychiatric
patient. However, I am of the view that this list does not
qualify or define what is to be considered a "clinical record"
under subsection 65(2)(a). The definition of "clinical record"
found in subsection 29(2)(c) of the Mental Health Act does not
define the content of a clinical record. It requires that such
a record be compiled in a psychiatric facility in respect of a
patient. In my opinion, the fact that the records at issue are
contained in the clinical file of a patient in a psychiatric
facility is prima facie evidence that the records are "clinical
records". This evidence is not rebutted by the fact that the
records may also be located in non-clinical files.
I find therefore, that the records at issue in this appeal are
"clinical records" within the meaning of subsection 65(2)(a) of
the Freedom of Information and Protection of Privacy Act, 1987,
- 8 -
[IPC Order P-215/January 28, 1991]
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Legislation
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Subject Index
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Signed by
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Tom Wright
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Published
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Jan 28, 1991
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Type
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Order
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Judicial Review
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Affected party's applications abandoned September 9, 1992
John Doe v. Ontario (Information and Privacy Commissioner), Newmarket Docs. 22381/92, 22382/92 (Div. Ct.)
Divisional Court Decision - Re: Affidavits
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