Solicitor General of Canada, et al. v. Royal Commission (Health Records)

to review all legislation administered by the Minister of Health (for example, The Public Hospitals Act, The Health Disciplines Act, 1974, The Health Insurance Act, 1972, and The Mental Health Act), together with any other relevant legislation administered by other Ministers, and any Regulations passed thereunder, to determine whether proper protection is given to the rights of persons who have received, or who may receive, health services, to preserve the confidentiality of information respecting them collected under that legislation;

to review the legality of the administrative processes under the above Acts;

to investigate, inquire into and consider any misconduct, and any negligent or other improper activities, practices or conduct by any person, firm, corporation or organization in relation to the above Acts and Regulations and the administration thereof, including any non‑compliance by any person, firm, corporation or organization with any of the above Acts and Regulations, and any activities, practices or other conduct by any person, firm, corporation or organization which coerced, induced, persuaded or otherwise

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prompted any such misconduct, negligence or other improper activity, practice or conduct, or which constituted an attempt or an agreement to coerce, induce, persuade or otherwise prompt any such misconduct, negligence or other improper activity, practice or conduct; and

to report thereon to the Minister of Health with any recommendations for necessary amendments to the legislation and the Regulations passed thereunder.

The present appeal, which is here by leave of this Court, arises out of a case stated by the Royal Commission which posed two questions for the Divisional Court of Ontario. The questions were these:

(a) Was I correct in ruling that the law recognizes no privilege which operates so as to prevent the disclosure to the Commission of the identity of those physicians and hospital employees who divulged medical information to members of the R.C.M.P. without the patient’s authorization?

(b) Was I correct in requiring the witnesses to answer the questions seeking the disclosure of the identity of the physicians and hospital employees in question?

The Divisional Court, speaking unanimously through Osler J., answered the first question in two parts:

(i) “Yes” with respect to the identity of those physicians and hospital employees and other persons under the control and direction of the Board of a hospital who divulged information from a medical record to members of the Royal Canadian Mounted Police without the patient’s authorization;

(ii) “No” with respect to physicians and members of other self-governing professions with regulations regarding professional conduct and who at the time were acting in a professional capacity on their own responsibility and not under the direction or control of the Board of a hospital…

Its answer to the second question was that, in accordance with the answer to the first question, there could be no encompassing response, and it must depend upon the classification into which the informant falls in each case.

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On appeal to the Ontario Court of Appeal, the majority of the Court (Dubin J.A., Wilson J.A. concurring) and Brooke J.A., who dissented, disagreed in different respects with the judgment below. Dubin J.A. answered both questions in the affirmative; Brooke J.A. answered them in the negative.

It is not in dispute that the terms of reference of the Royal Commission make the identity of the persons who divulged medical information about patients relevant to the inquiry. What is in dispute is whether, in the circumstances attending the disclosures and having regard to the police duties of those to whom the disclosures were made, namely officers of the Royal Canadian Mounted Police, there is a privilege in such persons, as witnesses in the inquiry, to withhold the identity of their informants, albeit the informants were, even to the knowledge of the police witnesses, in breach of a duty of confidentiality with respect to medical information about hospital patients.

Powers of the Royal Commission

It is conceded that the Royal Commission was validly appointed and that the inquiry, both as to its nature and scope, was within the competence of the Legislature and Government of Ontario. There are a number of provisions of The Public Inquiries Act, 1971 which must be brought into account for the purposes of the present case. Section 4 states the general principle of openness of hearings to the public

…except where the commission conducting the inquiry is of the opinion that,

(a) matters involving public security may be disclosed at the hearing; or

(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public;

in which case the commission may hold the hearing concerning any such matters in camera.

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Sections 7(1), 9, 10 and 11 of the Act are as follows:

7.—(1) A commission may require any person by summons,

(a) to give evidence on oath or affirmation at an inquiry; or

(b) to produce in evidence at an inquiry such documents and things as the commission may specify,

relevant to the subject matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.

…

9.—(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or may tend to establish his liability to civil proceedings at the instance of the Crown or of any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence.

(2) A witness shall be informed by the commission of his right to object to answer any question under section 5 of the Canada Evidence Act.

10. A commission may admit at an inquiry evidence not given under oath or affirmation.

11. Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.

Confidentiality of Health Records

It was the breach of confidentiality of the health records of patients, particularly hospital patients, that brought about the inquiry. Hundreds of instances of the disclosure of such information without the consent of the patients were admitted during the course of the inquiry. In his reasons for the Ontario Court of Appeal, Dubin J.A. expressed the duty of confidentiality as between doctors and their patients in the following terms:

Members of the medical profession have a duty of confidentiality with respect to their patients. They are under restraint not to volunteer information respecting the condition of their patients or any professional services performed by them without their patient’s consent. In the absence of such consent, members of the medical

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profession breach their duty if they disclose such information unless required to do so by due process of law.

That duty is reinforced by legislative policy reflected in The Health Disciplines Act, 1974, 1974 (Ont.), c. 47, and in The Public Hospitals Act, R.S.O. 1970, c. 378, and is given precision by regulations under the respective Acts, especially by O. Reg. 577/75 under the former Act. Section 26 of the Regulation defines “professional misconduct” to mean, inter alia,

26. …

21. giving information concerning a patient’s condition or any professional services performed for a patient to any person other than the patient without the consent of the patient unless required to do so by law;

Regulation 729 under The Public Hospitals Act provides in s. 48(1) that subject to certain exceptions, not material here, “a [hospital] board shall not permit any person to remove, inspect or receive information from a medical record”. The reasons of the Divisional Court state, quite properly, that the prohibition (which is fortified by a penalty provision under s. 36 of The Public Hospitals Act) is directed only to a hospital board but the Court goes on to say that “it would result in an absurd position if individual members of the board, employees of the board or employees or servants of a hospital under the control of the board are to be permitted with impunity and in secrecy to remove, inspect, or receive information from a medical record when such acts are forbidden to the board itself”.

The Stated Case

The circumstances which gave rise to the stated case are recited in the case by Justice Krever, and I reproduce them as follows:

2. On the 8th day of June, 1978, at a public hearing of the Commission, certain members of the Royal Canadian Mounted Police (“R.C.M.P.”) were called upon to testify by Commission counsel.

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3. Superintendent Donald Harold Heaton (“Heaton”), and Chief Superintendent Michael Spooner, (“Spooner”) testified that, to their knowledge, medical information had been received by the R.C.M.P. on approximately 368 occasions from physicians and hospital employees in Ontario without the prior consent of the patient.

4. Corporal Glen Allan Gartshore, (“Gartshore”) testified that in January, 1976, he approached an employee of the Ontario Health Insurance Plan, (“O.H.I.P.”) and obtained without the patient’s consent, medical information in the form of the diagnostic codes submitted by the patient’s physician to O.H.I.P.

Commission counsel requested Heaton and Spooner to name those physicians and hospital employees from whom the R.C.M.P. had received medical information.

Commission counsel also requested Gartshore to name the O.H.I.P. employee from whom he had received medical information in January, 1976.

Counsel for the Federal Solicitor-General and the R.C.M.P. (“counsel”) objected to the questions set out in paragraphs 5 and 6 being answered.

Counsel reconsidered his objection as it related to the question set out in paragraph 6 and directed Spooner to disclose to me the name of the O.H.I.P. employee who delivered medical information to Gartshore in January, 1976. Spooner then did so.

The basis of the objection to the questions set out in paragraph 5 were as follows:

(a) in both civil and criminal litigation, the “police informer privilege” permits, in certain circumstances, a police officer to refuse to disclose the identity of an informant;

(b) physicians and hospital employees provided medical information to R.C.M.P. members without the authorization of the patient on the understanding that their identity would not be disclosed;

(c) the “police informer privilege” applied to the identity of these physicians and hospital employees; and

(d) this “police informer privilege” justified a ruling that the questions need not be answered because of the provisions of Section 11 of The Public Inquiries Act, 1971, which reads as follows:

“Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.”

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Counsel conceded that the identity of the physicians and hospital employees in question was clearly within my terms of reference and relevant to the inquiry undertaken.

Evidence was adduced by counsel that if the R.C.M.P. were required to identify the physicians and hospital employees from whom medical information had been obtained without the patient’s authorization, difficulty would be encountered in the future in obtaining from physicians and hospital employees medical information without the consent of the patient.