It is not unusual for hospitals and health care providers to have to deal with the police and police investigations. The authority of the police to demand patient information has been in the news quite a bit recently, particularly in relation to patients presenting in the emergency department with gunshot wounds. Toronto's Police Chief has advocated that hospitals and health care providers should be required to report gunshot wounds to the authorities, from a public interest perspective.

Of course, hospitals and health care providers have a legal duty to protect patient confidentiality, and in the absence of a law requiring such disclosure or a search warrant, patient information cannot be disclosed without patient consent. Interestingly, the Ontario Medical Association has identified that the lack of a law requiring disclosure of gunshot wounds creates conflict between health professionals and the police, and has called for the Ontario government to introduce legislation to resolve this conflict.

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.

Background

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 search warrant:

1. In the application for the warrant, the police should disclose whether the documents to be seized may include health records.
   
2. 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 evidence.)
   
3. 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:

1. 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.
   
2. 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.
   
3. 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.

Conclusion

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.

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