Law & Governance
FAQs : PHIPA
How can we tell whether we have a patient's "implied consent"? The elements of implied consent are two-fold:
The hospital must post a notice, where the patient is likely to see it, describing how it intends to collect, use and disclose the patient's personal health information; and
The notice must give the patient the option to withhold consent. For example, "Unless you tell us not to, we will tell anyone who calls the hospital or visits the hospital asking about you that you are in the hospital (room #, extension #). We will also share your basic health condition."
We regularly allow chart reviews (for research purposes) to be conducted by our physicians without patient consent. Will PHIPA change this? Yes. Any research, including chart reviews, conducted without the patient's consent must follow the detailed Research Ethics Board review process outlined in PHIPA (section 44 and further elaborated upon in Regulation 329/04).
Under PHIPA, can we report gunshot wounds to the police? No. There is other legislation that has been introduced by the Ontario government that, if and when passed, will require hospitals to report the fact of a gunshot wound victim to the local police. However, until that legislation (Bill 110) is passed, there is still a requirement to obtain patient consent to disclose a gunshot wound to police, unless disclosure is "necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons" (section 40).
How will our hospital's relationship with our foundation change? PHIPA and its regulations dictate that only the name of the patient and the patient's mailing address (or the name and mailing address of the patient's substitute decision-maker) can be disclosed to the foundation without the patient's consent (express or implied), for fundraising purposes. Even with the patient's consent, the following conditions apply to the disclosure of personal health information to a foundation for fundraising purposes:
- The patient must be given notice that his or her personal
health information will be disclosed to the foundation for
fundraising purposes and given the chance to withhold consent for
- All further solicitations must provide the patient with an easy
way to opt out of receiving the solicitations; and
- The communications cannot include any information about the individual's healthcare or state of health.
Our foundation regularly sends out campaign contribution requests to the community at large. Will this be a violation of PHIPA if a recipient has recently been discharged from the hospital?
No, as long as the foundation is sending a general mailing and that mailing is not based on names and contact information received from the hospital. If the mailing is based on names and contact information received from the hospital, the foundation must not target any patients who were admitted to or treated at the hospital less than 60 days ago.
About the Author
Kathy O' Brien is a partner at Cassels Brock LLP. She practises corporate
and commercial law, focusing on healthcare issues for not-for-profit and
charitable corporations. She can be reached at firstname.lastname@example.org
AcknowledgmentReprinted with permission.
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