Abstract
Introduction
Physicians have an ethical, legal, and professional duty to maintain the confidentiality and privacy of personal and health information. Exceptions to this duty are limited and well-defined. In Ontario, psychiatric patients can appeal involuntary detention and findings of incapacity to the Consent and Capacity Board (CCB), which “is a quasi-judicial administrative tribunal…under the authority of the Health Care Consent Act.” 1
As CCB hearings are considered legal proceedings, transparency and accountability are paramount. As such, CCB hearings are open to the public. When either the physician or patient who has been party to the proceedings requests details of the decision, Reasons for Decisions documents are written by the presiding member of the CCB tribunal. These documents contain numerous details about the patient's identity, including sociodemographic information, mental and physical health status, and treatment.
In the past, these documents were only available in paper form and typically only accessed by those involved in the hearing, or by physicians or lawyers reviewing past decisions. However, with the advent of the Internet, Reasons for Decision documents are now published and easily accessible on the Canadian Legal Information Institute (CanLII) website. 2
Methods
We conducted an empirical study investigating patient information included in Reasons for Decision documents. All appeals of incapacity under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (Ontario) and involuntary detention under the Mental Health Act, R.S.O. 1990, c. M.7 (Ontario), where Reasons for Decisions were requested and therefore published by the CCB on the CanLII website, were reviewed.3,4 Other cases involving community treatment orders or corrigendums were excluded from the study. We reviewed 2 6-month periods (March to August) in both 2015 and 2019. There were 129 eligible appeals in 2015 and 213 in 2019. Reasons for Decision documents were then fully reviewed and analyzed.
For each document, we abstracted the presence or absence of the following potentially identifiable details: initials, age, gender, marital status, presence of children, housing type, employment status, specific occupation, hospital, clinical description, admission date, diagnosis, and past diagnoses. Descriptive statistics were used to explore the frequency with which these details were presented in Reasons for Decision documents.
Results
As shown in Table 1, in nearly all cases in both 2015 and 2019, the initials of the patient and the hospital in which the patient was admitted, were included. In the majority of cases, other details including age, gender, presentation to hospital, current diagnosis, and past diagnoses were also disclosed.
Proportion of Publicly Available Reasons for Decision Documents Containing Patient Identifiers and/or Health Information.
Discussion
We reviewed 342 (129 in 2015 and 213 in 2019) appeals of incapacity and involuntary detention where Reasons for Decisions documents were published online. Although the percentage of detailed information varies slightly between 2015 and 2019, the figures are similar. In each case, a substantial number of details that could be used to identify an individual were included in the document. These included initials, age, gender, family structure, occupation, etc. While a single piece of information may not be sufficient to identify a specific person, the cumulative nature of the information disclosed may be sufficient to do so. It is of concern that, in almost all cases, the details provided are sufficient for the person to be individually identified.
While disclosure for proceedings is permissible under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3 Sched. A (Ontario), we believe that the level of detail published is not necessary for legal transparency. 5 Considering that a large number of those patients appealing to the CCB have been declared incapable of treatment decisions, with this finding consistently upheld by the tribunal, we question whether these patients are able to understand and able to appreciate the privacy issues and potential consequences associated with the publication of a Reasons for Decision document. We are also concerned that these patients may not be adequately informed that their detailed personal information could be posted on the internet and propose that the tribunal consider new guidelines relevant to online publication to better protect the privacy of this potentially vulnerable population.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
