Commissioner upholds Psychotherapist’s denial of access to records due to risk of harm

A recent decision from the Information and Privacy Commissioner (“IPC”) provides insight into the application of section 52(1)(e) of the Personal Health Information Protection Act, 2004 (“PHIPA”), which permits denial of an individual’s request to access their personal health information (“PHI”) where:

granting access could reasonably be expected to result in a risk of serious harm to [the requester’s] treatment or recovery, or a risk of serious bodily harm to [the requester] or to others.

 This case upheld the decision of a custodian of PHI records (a psychotherapist), to deny the complainant (a former patient) access to his records under section 52(1)(e) of PHIPA.

In considering the application and interpretation of this provision, IPC Adjudicator Jaime Cardy noted that the purpose of this provision is to protect the treatment, recovery and physical security of a patient and others, and that this exemption must be approached in a sensitive manner given the difficulty of predicting future events. The Adjudicator made clear, however, that custodians seeking to rely on this provision must provide evidence of a risk of harm that is “well beyond the merely possible or speculative, although it need not prove that disclosure will in fact result in such harm.” The amount and type of evidence necessary will depend on the type of issue and seriousness of the consequences.

If a reasonable risk of harm is established, the IPC will then consider if any of the PHI can be severed from the part of the record that the individual does not have a right to access, and provided to the individual.

A. PSYCHOTHERAPIST’S REPRESENTATIONS

Adjudicator Cardy noted that most of the representations provided by the psychotherapist were confidential, as permitted under section 18 of the IPC’s Code for Procedure for Matters under PHIPA. This section permits a party to request that representations be kept confidential from other parties, which the IPC can grant for a number of reasons enumerated in this section (including that sharing the information would reveal the substance of the record claimed to be exempt from access, which is likely why the representations were confidential in this case). These confidential representations could not be summarized in the decision, but they were considered by the Adjudicator.

The psychotherapist submitted that she treated the complainant for complex mental health issues from October of 2014 to October of 2016. She terminated her treating relationship with the complainant as a result of his abusive and threatening behaviour. She provided excerpts from the record, such as emails from the complainant, that illustrated the complainant’s history of violence, and the harassment and threats that he has made towards herself and others. There was also evidence that the complainant  was “triggered” when he communicated with the psychotherapist or reviewed paperwork with respect to his treatment with her. The psychotherapist submitted that if the complainant is triggered, he would likely misinterpret the record and potentially incorporate its contents into delusional beliefs, which may result in violence against himself, the custodian, or others. She presented specific examples when he had misinterpreted communications in the past, and viewed them as threatening and an attack on his health, safety, and well-being.

The psychotherapist also submitted that the record contained information and documents that the complainant was not aware of, because he had provided them to the psychotherapist while he was in a dissociative state.

The psychotherapist offered to transfer the record to his current therapist, but the complainant did not respond to this offer. Moreover, the complainant’s current therapist advised her that the transfer was not necessary, as the records were of no therapeutic value and would not impact his treatment.

Finally, the psychotherapist noted that the complainant had been arrested and charged as a result of his threatening behaviour towards her, and that she had also involved the police on several other occasions, such as to escort her to her vehicle outside of her office.

B. Complainant’s Representations

The complainant submitted that it had been more than two years since he has been seen by the psychotherapist, and she therefore had no idea how the complainant has progressed on his mental health journey. He advised that he had not had a dissociative episode in the last year. The complainant suggested that a third party could assess him concerning the alleged harms that may result from obtaining access to the records at issue.

The complainant submitted that he is currently working on moving on from his experiences with the psychotherapist, and obtaining access to his records is the only outstanding item in doing so. He submitted that being denied access to this information would cause harm to his recovery and treatment.

C. IPC’s Decision

Adjudicator Cardy concluded that the psychotherapist had presented sufficient evidence to raise a risk of harm that was well beyond merely possible or speculative. She concluded that the evidence showed that the complainant had acted in harmful ways against himself and others as a result of communications relating to his past treatment, and that there was a reasonable prospect that reviewing the records may result in similar harm.

In response to the complainant’s submission that denying him access will negatively impact his treatment or recovery, Adjudicator Cardy noted that PHIPA does not contemplate scenarios in which access should be granted, despite the conclusion that an exemption to access applies. PHIPA grants an individual a general right to access their information, without the need to provide any reason, unless an exemption to access applies, as she found one did in this case.

Adjudicator Cardy also accepted that no part of the record could be severed and provided to the complainant. However, the IPC relied largely on confidential submissions in support of this finding, and accordingly the decision’s reasoning in support of this conclusion is very sparse.

As section 52(1)(e) of PHIPA is not often relied upon, this case provides a rare and helpful illustration into the kind of evidence that can be submitted in support of a reasonable expectation of a risk of harm.

Custodians concerned about granting access to PHI records should contact us for assistance in determining whether an exemption applies.

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