Federal Court of Appeal Upholds Insured Party's Right to Access Personal Information Contained in Doctor's Notes

The Federal Court of Appeal has ruled in Wyndowe v Rousseau, 2008 FCA 39 (Wyndowe) that an insured person has the right under the Personal Information Protection and Electronic Documents Act (PIPEDA) to access personal information contained in the handwritten notes of a doctor taken during an independent medical examination (IME) of the insured person, conducted at the request of an insurance company. The dispute in question arose before Ontario's Personal Health Information Protection Act, 2004 (PHIPA) came into force. The Federal Court of Appeal decision affirms in part, the Federal Court ruling of Justice Teitelbaum, which granted access to the doctor's notes in their entirety. The decision differs from the Federal Court ruling, because it grants access only to the "personal information" in the notes, rather than to all the information. This difference arose largely because the respondents conceded on appeal that they were seeking access only to the parts of the notes that recorded the insured party's answers to the doctor's questions, and the parts that recorded the doctor's observations of the insured party's behaviour. This concession had not been made at the trial level. As in the Federal Court ruling, the Federal Court of Appeal held that in the context of the PIPEDA, it was clear that "personal health information" is a subset of "personal information". It went even further to hold that notes taken by a doctor in the course of an IME form part of the medical records of the insured party. The appellate argued that the notes taken were "work product information" that should be excluded from the definition of "personal information". While not ruling whether the notes were "work product information", the Court held that currently under the PIPEDA, "work product information" is not excluded from the definition of "personal information". Having reached these conclusions, the Court held that the insured party was entitled to access the portions of the notes taken by the doctor, which constitute his personal information. More specifically; [The insured party] has a right of access to the information he gave the doctor, and to the final opinion of the doctor in the form of the report to the insurer….this enables [the insured party] to correct any mistakes in the information he gave the doctor or which the doctor noted, as well as any mistakes in the doctor's reasoned final opinion about his medical condition. From this passage it is unclear if the Court considers the doctor's observations in his notes of the insured party's behaviour, to be "personal information". The Court seemingly limits the insured party's "personal information" to the party's answers to the doctor's questions and the doctor's final opinion in the form of the report to the insurer. The Federal Court of Appeal's affirmation of a right of access is important, because it is unlikely that an insured party would have a right of access under the PHIPA. Under the PHIPA, an individual is given a general right of access to a record containing personal health information about the individual, when the record is in the custody or under the control of a "health information custodian". It is unlikely that a doctor performing an IME would be classified as a "health care custodian". The definition of "health care custodian" in the PHIPA requires that the custodian provide "health care". This is defined as an "observation, examination assessment, care service or procedure that is done for a health related purpose". In the context of an IME, the observations and examinations are not performed for a "health related purpose", but rather for a commercial purpose (i.e. the assessment of whether benefits should be paid out). Thus, without the right of access granted by PIPEDA, which was affirmed by the Federal Court of Appeal in Wyndowe, an individual in Ontario who undergoes an IME would be without a right of access to notes collected during that IME. For the full reasons for judgement, see: http://decisions.fca-caf.gc.ca/en/2008/2008fca39/2008fca39.pdf Summary by: Michael Migus