Stewart McKelvey

Vol 3 Issue 3 Fall 2013

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PHIA also applies to the agents of a custodian. An agent is a person who, with the authorization of the custodian, acts for or on behalf of the custodian in respect of personal health information. Agents include an employee of a custodian or a volunteer who deals with personal health information, a custodian's insurer, a lawyer retained by the custodian's insurer or a liability protection provider. Consent Is Key Under PHIA, custodians are required to obtain consent from an individual before collecting, using or disclosing the individual's personal health information, unless explicitly stated that consent is not required. To ensure that consent is valid under PHIA, it must meet four necessary characteristics: 1. It must be given by the individual receiving the service, or by their substitute decision maker if the person lacks capacity to consent. 2. It must be "knowledgeable". 3. It must be related to specific information at issue. 4. It must be voluntary. Any individual with capacity, regardless of their age, may consent, or withdraw consent. PHIA allows individuals to request to limit or revoke consent but this revocation is it is not retroactive. There are two basic methods for a custodian to obtain consent from an individual: express consent or implied consent. Whether consent is express or implied, it must be knowledgeable consent. To be knowledgeable consent, the individual must be informed of the purpose of the collection, use or disclosure of their information to allow them to properly decide whether to provide or withhold their consent. A custodian may assume that the individual is knowledgeable by: a) Posting a notice describing the purposes why the individual's health information is being collected, how it is being used, and in what circumstances it would be disclosed. b) The right's of the individual to refuse consent. c) Where to locate more information about PHIA. d) How to initiate a complaints process under PHIA. This "notice of purposes" must be posted where it is likely to come to an individual's attention. Posters and notices in waiting rooms in plain view and in clear font would allow the custodian to assume that an individual is knowledgeable. The assumption that a patient is knowledgeable can be made unless it would not be reasonable in the circumstances. PHIA requires express consent of the individual in cer- tain circumstances, such as when disclosure is between a custodian to a non-custodian. However, when a custodian discloses personal health information to another custodian for the purpose of providing healthcare, the consent of the individual may be implied, unless the individual has specifically withheld or withdrawn the consent. PHIA provides for certain circumstances where personal health information may be collected, used or disclosed without consent. These include disclosure to a legal guardian and disclosure where required to by law (i.e. pursuant to a court order). Collection, Use & Disclosure of Personal Health Information There are two guiding principles that limit the collection, use and disclosure of personal health information: • A custodian cannot collect, use or disclose personal health information where other information will serve the custodian's purpose. • A custodian must collect, use and disclose the minimum amount of personal health information necessary to achieve the custodian's purpose. Custodians may use personal health information for the purpose for which the information was collected or created and for all functions reasonably necessary for carrying out that purpose. There are also circumstances where personal Doing Business in Atlantic Canada FALL 2013 7

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