Information and Privacy Commissioner Considers Whether One Family Member Can Access Family’s Therapy Records
A former client (the “Client”) of a child and youth mental health centre (the “Centre”) participated in family therapy sessions at the Centre in the 1980s and 1990s. She and her family attended therapy to address the challenges in the family relationships that arose in connection with her parents’ separation.
In Decision 158, the Information and Privacy Commissioner (IPC) considered the Client’s request to access her family and individual therapy records from the Centre. She initially submitted a request to the Centre under the Personal Health Information Protection Act, 2004 (PHIPA) and stated in her request:
I would like my entire file, including letters to lawyers and anything else you have on me, my mother, father, and/or brother that would help me understand my childhood family dynamics.
In particular, the Client wanted to access records that relate to her family’s group therapy sessions even though the record related to some sessions where the whole family was not involved. For example, some sessions involved the Client, her mother, father, and/or brother. The records consisted of assessments, progress notes, the reasons for the family’s referral to family therapy, the family history, treatment plans and outcomes, the practitioner’s observations and opinions in relation to the family and the family dynamic.
The Centre provided the Client with partial access to the records. It withheld personal health information (“PHI”) that it believed belonged to other people or included “historical information” that was shared by the Client’s parents about the reasons for the family’s continued conflict (and attendance at therapy).
The Client further requested that all records be released including court files that had been concluded and PHI that related to her mother who had passed. The Client argued that section 38(4)(c) of PHIPA supported her request for her mother’s personal health information. This provision permits a health information custodian [1] to disclose personal health information about a deceased person to their child (or spouse, partner or sibling), if the person making the request for information requires it to make a decision about their own health care.
The Centre responded with another decision and released additional records, including intimate details shared by the Client’s brother, which were redacted. The Centre stated that it would not release any other information because it released all information that pertained directly to the Client’s own personal health information. It would not release information that did not relate specifically to the Client.
The Client complained to the IPC. She believed additional records existed which were not identified by the Centre.
The IPC decision is significant in that it addresses the novel and important questions of to whom family (group) therapy records relate and whether PHIPA allows one family member the right to access all family therapy records. Given the significance of the novel request and application of PHIPA, the IPC invited “interested organizations” to provide their views on the Client’s right to access her family’s therapy records.
The interested parties that participated and provided their submissions on the issues included representatives from the College of Physicians and Surgeons of Ontario (CPSO), the College of Psychologists of Ontario (CPO), the College of Registered Psychotherapists of Ontario (CRPO), the Ontario Association of Social Workers (OASW), the Ontario College of Social Workers and Social Service Workers (OCSWSSW) and the Ontario Medical Association (OMA) (collectively, the “Interested Organizations”).
We will discuss one of the key issues the IPC considered: whether the records created during family therapy sessions contain personal information and if so, whether they were dedicated primarily to personal health information about the Client. [2]
Do family therapy records contain personal health information and if so, to whom do they relate?
According to PHIPA, “personal health information” includes information about a person’s physical or mental health, including information about the health history of the person’s family and the provision of care to the person. [3] The parties agreed that family therapy records contain PHI. The question is then, to whom does this PHI relate.
The Centre argued that the records contain the PHI of the Client as well as her brother, mother and father. However, it did not explain how it distinguished between each person’s personal health information.
The Client argued that given her family history, her story included her family members’ stories and that her family’s history and dysfunction related to the family unit. She was entitled to her family health history so she can make decisions about her own health.
The Interested Organizations also made submissions. The CRPO, OCSWSSW and the OMA submitted that personal health information of one family therapy participant does not constitute the personal health information of the other participants. The CRPO noted that this position promotes individuals’ autonomy over their own personal health and prevents the misuse of joint therapy records.
The OCSWSSW expressed a concern that providing the Client with all the information discussed during family therapy as part of each participant’s PHI would broaden the right of access outlined in PHIPA and could affect participants’ trust and willingness to candidly engage in family therapy sessions. The CPO took the position that even in the context of family therapy, it is reasonable for participants to expect that PHI collected will remain confidential from other participants.
The CPSO, however, maintained that PHI may include information about their family members. The general expectation would be that any PHI collected during family therapy sessions is PHI of all participants, unless the family therapy session focuses on one person, in which case the PHI in the record would be that person’s PHI alone.
Generally, the Interested Organizations all agreed that determining whose PHI is included in family therapy records is a determination that must be made on a case-by-case basis.
The IPC accepted as a presumption that PHI of each family therapy participant is theirs alone and does not constitute PHI of the other therapy participants. However, this presumption is “subject to certain nuances”.
Family therapy records may contain “communal” or “shared” information of the family that can form part of each participant’s PHI. The IPC described communal information as information that is collected in the context of the therapeutic relationship that relates to the family as a whole (and not focused on one participant). Identifying communal information in the family therapy records must be done on a “case-by-case and record-by-record basis”. Because communal information relates to the personal health information of each family therapy participant, each participant can independently access this personal health information under PHIPA. The IPC identified that in the context of family therapy records, communal information includes: information relating to family health history; information relating to the overall family relationship or dynamic; and general themes that arose in the course of family therapy. This information would be considered the personal health information of each family therapy participant.
Applying this principle, the IPC found that all records at issue contained the Client’s personal health information and included the practitioner’s observations of the client’s well-being and recommendations for further care.
Other records were collected during the therapeutic relationship of the family including, notes about the reasons the family attended therapy, information about the family structure and history, treatment plan and recommendations for therapy, opinions and observations about the family’s progress and the impact of therapy. The IPC found this information to be communal information because they related to the overall family dynamic or general themes that were uncovered during therapy. Accordingly, this communal information was the Client’s own personal health information, and she has a right to access it under PHIPA.
This decision is significant, in that it considered a novel issue regarding the right to access information created in the context of group family therapy. It also invited Interested Organizations to make submissions and consider their positions about whether personal health information of one therapy participant is the personal health information of the other participants. Additionally, some Interested Organizations provided useful guidance on how organizations such as the Centre can manage these concerns. For example, the OMA and CRPO highlighted the importance of documenting the informed consent process at the outset of family therapy to establish and manage participants’ expectations with respect to whom personal health information belongs and who can access it.
Best Practices for Group or Family Therapy Records
Health information custodians providing group therapy and family therapy sessions should consider this decision and implement strategies to ensure that family therapy participants understand at the outset how their personal health information will be treated and to whom it belongs. Having these open discussions will also provide participants the opportunity to share their concerns about whether they want their information disclosed with the other participant, which may reveal important information about the group dynamic. Best practices include:
At the outset of therapy, establish ground rules for what can be discussed, what information will be recorded, and who will have access to the records.
Document this understanding in the health record.
Identify documents (including chart notes) that relate to one participant and those that relate to all participants.
When considering requests to access family or group therapy records, refer to documented informed consent and other records to identify participants’ expectations, and categorize records as communal or relating to one or more participants before granting access to any records.
If you are faced with a request for access to family or group therapy records, contact us for guidance on your response.
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[1] Health Information Custodian is defined in s.3 of PHIPA as a person or organization that has custody or control of personal health information as a result of or in connection with performing the person’s or organization’s powers or duties or work.
[2] Note the IPC considered other questions that are not discussed in this blog post.
[3] section 4(1)(a) and (b).
