Children’s Mental Health Records Part 2: Court Proceedings

In Part 1 of this series, we discussed the assessment of capacity of young clients to consent to the release of personal health information (“PHI”) records and how to respond to requests from a parent or guardian for access to a capable child’s PHI records where the client refuses consent to their disclosure. In Part 2, we will discuss court proceedings through which a parent may seek access to their children’s PHI records, and how health professionals may advocate for their young clients in these circumstances.

Where a client’s parents are embroiled in a high-conflict family law proceeding, denying one parent’s request for access to their child’s health record may result in the parent seeking production of the records through a motion to the court. This is permitted under the Family Law Rules.

Applications for Records in Family Law Proceedings

Section 20(5) of the Children’s Law Reform Act (“CLRA”) permits a parent who is entitled to parenting time (formerly known as “access”) to make inquiries and to be given information about their child’s well-being, including in relation to the child’s health and education. A parent may seek to enforce this right by requesting information in the context of family law proceedings. The Family Law Rules apply to all family law cases in the Superior Court of Justice and Ontario Court of Justice. Rule 19(11) allows for a court to order that a non-party to the proceedings (such as an organization that provides children’s mental health services) produce records to the parties (such as the child’s parents) where three criteria are met:

(a)   the records are relevant,

(b)   the records are not protected by a legal privilege, and

(c)    it would be unfair to a party to go on with the case without the records.

The Personal Health Information Protection Act, 2004 (“PHIPA”) does not govern the production of PHI records in these circumstances. Indeed, the case law is clear that despite PHIPA, a court may order production of PHI records contrary to the wishes of the person to whom the records relate, and the custodian is required to comply with any production order made by a court. However, the principles of PHIPA, including the right of a capable young person to determine who can use and see their PHI records and the preference of a young person’s wishes over the decision of their parent, may be relevant considerations for a court in determining the issues on a motion for production of a young person’s PHI records. 

Recent Case Law

This issue was recently contemplated in L.S. v. B.S., a 2022 decision of the Ontario Superior Court of Justice. The parties in this case had two children. The children had a broken relationship with their father. The parents were enmeshed in a long, high-conflict family law dispute about parenting issues. Both children had been attending counselling from a family services organization while in the care of their mother. One of the primary issues facing the Court was whether the father should be granted the children’s counselling records pursuant to r. 19(11) of the Family Law Rules.

The children expressly refused to provide consent to the production of their records. However, the Court noted that while the children’s views are important and would factor heavily into the outcome of the motion, they were not determinative of the final outcome in the family law context. Ultimately, the Court determined that the children’s counselling records, while likely relevant to the family law proceedings, were protected by a legal privilege. The information respecting the circumstances under which the counselling was put in place, however, was not protected. Having regard to the CLRA, PHIPA, and the unique facts of the case, the Court decided that releasing this information, along with general descriptive information about the services being provided to the children, would not trample on the children’s privacy.

The Court also noted the many risks of disclosing a child’s sensitive mental health records, referencing the private nature of counselling and the chilling effect that disclosure may have on similar therapy in the future. The Court added that for children who are experiencing high-conflict situations, there is an “extremely important, strong public interest in protecting and fostering counselling” for these children. This factored into the Court’s decision to withhold the contents of the records themselves from the children’s father.

Conclusion

Advocating as a non-party in a family law proceeding can be complicated and is still a developing area of law. At Rosen Sunshine, we are experienced in and equipped to assist you in advocating for your young client’s privacy. Please contact us and ensure you get the advice of an experienced lawyer before proceeding.