Law & Governance
New Rules For Health Record Search Warrants
Until this issue is addressed by the government, hospitals and health professionals can only disclose patient information to the police when presented with a validsearch warrant. Recently, an Ontario court established new rules for obtaining a search warrant that involves health records. Importantly, the case recognized that a patient's right to privacy can, in some circumstances, supersede the interests of the police in obtaining information relating to an investigation.
In R. v. Serendip Physiotherapy Clinic, Justice Ferguson of the Ontario Superior Court faced the issue of balancing the competing interests of a police investigation with patient privacy rights. In this case, the police had obtained a search warrant pursuant to an ongoing investigation into allegedly fraudulent claims for automobile insurance benefits. Included in the alleged fraud were physiotherapy treatments that the police considered either unjustified or never provided. The police warrant authorized the seizure of patient records from Serendip Physiotherapy Clinic. Two clinic physiotherapists made an application to quash the search warrant. They specifically sought to have the court read additional requirements into the Criminal Code's search warrant provisions that would take into consideration their patients' right to privacy.
The two main issues addressed by Justice Ferguson were,
- whether the physiotherapists had a legal right to challenge the
search warrant; and
- what additional factors should be considered, if any, under the Criminal Code when police wish to seize and search health records?
The Physiotherapists' Right to Challenge the Search Warrant
Justice Ferguson determined that the physiotherapists had a legal right to challenge the search warrant. In reaching this conclusion, he noted the duty of health practitioners to protect their patients' health information that is reflected in the Regulated Health Professions Act ("RHPA"). The RHPA defines professional misconduct to include:
Giving information about a patient to a person other than the patient or his or her authorized representative except with the consent of the patient or his or her representation or as required or allowed by law.
Justice Ferguson further supported his conclusion by drawing an analogy between solicitor-client privilege and health care provider-patient privacy. The two professions share a "common fundamental principle (that) the guardian of the document has an interest in the document and the standing to protect it."
Additional Factors to be Considered
The Criminal Code authorizes a Justice of the Peace to issue a search warrant where there are reasonable grounds to believe that evidence of the commission of a crime will be found at the location. However, it is also important to consider privacy interests - as the Supreme Court of Canada noted in a 1995 case, "once privacy is invaded, it can seldom be regained." Towards that end, Justice Ferguson concluded that additional requirements should be read into the Criminal Code section that authorizes search warrants in situations where the Criminal Code does not adequately consider Charter rights (including the right articulated by the Canadian Charter of Rights and Freedoms that individuals have the "right to be secure against unreasonable search and seizure").
Justice Ferguson makes reference to a 1982 Supreme Court of Canada decision that dealt with solicitor-client privilege and which he found to be analogous to the physiotherapy clinic's situation involving health care provider-patient confidentiality. The conclusion of the Supreme Court in that case was that privilege (and therefore privacy) must be impaired minimally, and only where necessary.
The Ontario court gave specific directions with respect to
search warrants for health records. Justice Ferguson concluded that
the following steps should be taken when the police apply for a
- In the application for the warrant, the police should disclose
whether the documents to be seized may include health
- If the documents to be seized include health records, the
justice of the peace should determine if there is a patient privacy
interest at risk. (He gave the following examples as situations
where no privacy interest would be at stake: where a valid consent
is obtained from the patient, or where the patient in question is
an undercover police officer attempting to gather
- If the conclusion of the first two steps is that a patient's privacy interest is at risk, then the following guidelines should be followed:
- The warrant should require the sealing of the records immediately on seizure and they should be sealed continuously until a judicial officer holds a hearing.
- Where feasible, notice should be given to the possessor of the records and to those with a privacy interest in the records in order for them to make submissions on their interests.
- The judicial officer must weigh the competing interests considering the following facts:
- Is the record relevant to the alleged crime?
- Is the record necessary for the police investigation?
- What is the probative value of the record?
- What is the nature and extent of a reasonable privacy expectation with respect to the record?
- What is the potential prejudice to the patient's privacy?
The judicial officer should consider examining the records in order to make a determination. The judicial officer should also consider any conditions that may be imposed in order to restrict disclosure and mitigate the invasion of privacy. The conditions may vary depending on the type of record, and the degree to which there is a privacy expectation. Ultimately, each case must be determined on its facts.
A final condition suggested by the court is that the police give notice to the professional body (i.e., College) governing the particular health care practitioner from whom the records are sought. The rationale for this condition is that it may not always be possible to give notice to the patient and it is essential that someone represent the patient's interests.
The decision concluded with the warrant quashed and an order to return the seized records to the Clinic. However, the order was put on hold for 20 days, with the records sealed, to permit police to make another application for a warrant.
About the Author(s)
Kathy O'Brien is a lawyer practising exclusively with health care clients in the Health Law Group of Cassels Brock. Tracey Rynard is an articling student with Cassels Brock.
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