|
|
PIPEDA Case Summary #306
Physician refuses to provide access to individual's personal information
(Section 2; Principles 4.9, 4.9.1, paragraphs 9(3)(a) and 9(3)(d))
Complaints
An individual alleged that a doctor, who conducted an independent medical examination of the individual on behalf of an insurance company, refused to provide him with access to his personal information.
Summary of Investigation
The complainant wrote to the doctor, asking for a copy of the report the doctor sent to the insurance company. He also asked for a copy of the questions the doctor asked and the complainant's answers. The doctor provided the complainant with a copy of the report that he prepared. As he had
not kept a record of the questions that he asked during the examination or the answers, he could not provide those.
The complainant then requested that the doctor provide him with the notes that he had taken during the examination. The doctor refused, indicating that in his view, they did not form part of the complainant's medical record, and were therefore not his personal information. The doctor
stated, however, that if the Privacy Commissioner's Office determined that this information was the complainant's personal information, he would rely on two exceptions under the Personal Information Protection and Electronic Documents Act (the Act) to refuse access, namely, solicitor-client privilege and information generated in the course of a formal dispute resolution process.
Findings
Issued March 17, 2005
Application: Section 2 defines personal information as
"information about an identifiable individual"; Principle 4.9 states that upon
request, an individual shall be informed of the existence, use, and disclosure
of his or her personal information and shall be given access to that
information; and Principle 4.9.1 provides that an organization may choose to
make sensitive medical information available through a medical practitioner.
Exceptions to the right of access cited by the doctor include paragraph 9(3)(a),
which states that an organization is not required to give access to personal
information only if the information is protected by solicitor-client privilege;
and paragraph 9(3)(d), which states that an organization may not give access
only if the information was generated in the course of a formal dispute
resolution process.
In making her determinations, the Assistant Privacy Commissioner deliberated as follows:
- The Assistant Commissioner determined that the notes taken by the doctor in support of his report were the complainant's personal information, as defined in section 2.
- The doctor argued that the independent medical
examination took place in the context of a litigious situation, and that
access could therefore be denied because the information was protected by
solicitor-client privilege. In the doctor's view, his role was analogous
to that of an objective third party retained as an expert in the context
of ongoing litigation. He contended that an expert's report, as well as
his or her notes and drafts, are confidential and protected by
solicitor-client and litigation privilege.
- The Assistant Commissioner, however, noted that, in the
circumstances of this complaint, the doctor had not been retained by the
insurance company as an expert in the context of ongoing litigation.
Rather, he had been retained as an expert to assist the company in
determining its obligations under a group insurance policy. She therefore
did not accept the doctor's reliance on paragraph 9(3)(a) to deny the
complainant access.
- As for the other cited exception, paragraph 9(3)(d),
the doctor stated that the need for a physician's assessment in the
circumstances of an independent medical examination arises because of a
dispute between the insurer and insured about the insured's continuing
entitlement to benefits. The doctor maintained that if there was no
dispute about the extent of the coverage, no assessment of the insured
would be required.
- However, nothing in the documents provided to the
complainant (such as the claim form, the short- and long-term disability
benefits descriptions, or the notification that his benefits were being
terminated) suggested that the role of the independent medical examiner
arises in the context of resolving a formal dispute. In fact, the benefits
documents indicated that the insured must report for a medical examination
as often as may reasonably be required by a licensed doctor of the
insurer's choice. Even the letter notifying the complainant that his
benefits were being terminated made it clear that the examiner's role was
to assist the insurance company in determining its position with respect
to the complainant's continuing claim for benefits. It also informed the
complainant that he could initiate a dispute resolution process if he was
not happy with the decision. Such a process, noted the Assistant
Commissioner, would have been engaged after the independent medical
examination, not before.
- Thus, the Assistant Commissioner determined that the
notes were generated in the process of conducting a medical evaluation,
intended to assist the insurer in determining the complainant's
eligibility for benefits, not in the course of a dispute resolution
process. Since the doctor could not rely on the exception set out in
paragraph 9(3)(d) to deny access, she found that he had denied the
complainant access to his personal information, contrary to Principle 4.9.
- The Assistant Commissioner recommended that the doctor
provide the complainant with access, indicating that he could do so under
the circumstances set out in Principle 4.9.1 by making the information available
through a medical practitioner.
The Assistant Commissioner concluded that the complaint was well-founded.
|