The treatment of children raises questions with respect to consent and capacity. This article outlines what allied health professionals should know about their record-keeping obligations, including when they can disclose records to parents of a minor client. Please note that this article focuses on Ontario legislation; however, similar legislation exists in other provinces. Please contact us if you have questions with respect to other jurisdictions.
The Protection of Health Records
The Personal Health Information Protection Act, 2004, S.O. 2004 ("PHIPA") governs health information custodians in Ontario. PHIPA defines health information custodians ("HICs") as persons or organizations who have custody or control of personal health information, this includes health care practitioners and other entities such as a long-term care facility, hospital or centre that provides health services. As an allied health professional working within an organization, it is important to understand who (you or the organization) is the HIC.
PHIPA establishes the rules and requirements of collecting and disclosing personal health information. It provides Ontario patients with a right to access their records or to gain access to another person's records, when permitted by law.
As a HIC, you should be aware of your record-keeping obligations set out by your respective regulator; however, you should also be mindful of the obligations to clients set out in PHIPA. For example, when you receive a request for personal health information, you must respond within 30 days. An extension may be available based on the circumstances.
When you receive a request, you have three (3) options:
- Make the record available to your client;
- Let them know it does not exist after completing a reasonable search; or
- Refuse the request, in whole or in part, due to a provision of PHIPA and inform the individual about their ability to make a complaint to the Information and Privacy Commissioner of Ontario.
In considering what to send to your client, remember that standardized test materials are subject to copyright. They cannot be shared with your client. Raw data is exempt from PHIPA rules; however, you may produce it to a client when it is reasonable and appropriate to do so. The College of Psychologists of Ontario recommends that psychologists write out the answers of the questions from the standardized test materials on a new document in order to keep the test material confidential – this recommendation is found in the "Practical Application" commentary at section 10.8 of the Standards of Professional Conduct (2017).
Capacity and Consent
At the outset, allied health professionals should know that their clients are presumed to have capacity to consent to the "collection, use and disclosure" of their personal health information. PHIPA outlines the test to determine whether an individual is "capable". You must evaluate whether your client can:
i) understand the information that is relevant to the decision; and
ii) appreciate the foreseeable consequences of the consent.
When evaluating your client's capacity to consent, keep in mind that a client's capacity to consent can change depending on what the issue is and when the issue is raised. As a health professional who is tasked with collecting, using and disclosing health information of a client, you should be aware of the ongoing legal requirement to consider (and re-consider) capacity and consent.
PHIPA sets out who may be capable to consent to the collection, use or disclosure of information. The list includes:
- the individual (16 years old or older);
- a person authorized by the individual;
- if the individual is under 16 years old, a parent, a children's aid society, or other person that is lawfully entitled to consent in the place of a parent; or
- if the individual is incapable, a person authorized to consent on their behalf.
Clients who are at least 16 years of age are presumed to have capacity to consent. This is also the age at which patients may consent to health procedures under the Health Care Consent Act, 1996, S.O. 1996. However, clients under the age of 16 may be able to consent on their own, provided they (a) understand the information that is relevant to the decision; and (b) appreciate the foreseeable consequences of the consent.
Under section 23(3), PHIPA states that where there is a conflict between a child who is "less than 16 years of age and who is capable of consenting" and a person entitled to act as their substitute decision-maker (e.g. a parent) then the child's decision prevails. Therefore, if you assess that the child (less than 16) is able to (a) understand the information that is relevant to the decision; and (b) appreciate the foreseeable consequences of the consent – then the child's decision prevails over that of their substitute decision maker. The answer will vary based on the child in question, the context of the decision being made and the timing of the decision.
Example of Capacity and Consent of Minors:
To illustrate the importance of the two (2) key factors, consider the following example:
A psychologist's client is 12 years old. Her parents have requested access to her records. The records include a series of comments regarding the child's negative feelings towards her mother.
In order to determine whether the child has capacity to consent to the disclosure of their personal health information, the psychologist must ensure that the child understands the information relevant to the decision and appreciates the foreseeable consequences of disclosing it. To do so, the psychologist must ensure that the child understands what information will be disclosed and how that information may affect the child.
In this example, the relevant information is that the child's mother will find out that the child has negative feelings about her. The foreseeable consequence is that the mother may be hurt by these comments and may react to those feelings. If the child demonstrates an ability to make this connection and understand the potential effect, then the child has the capacity to consent or refuse the disclosure request.
It may be that a subsequent request for disclosure arises with this same child but regarding a different fact scenario with different consequences. Should that occur, the psychologist will need to repeat the evaluation process to determine whether the child has the ability to consent.
Remember that if you decide that your 12-year old client has capacity, the child's decision takes precedence over the parents' decision if they are in disagreement (see: s. 23(3) of PHIPA). This can be especially challenging when the parent paying for your services is making the request for their children's records.
Children who are at least 16 years old are presumed to have capacity. However, clients who are younger than 16 may also have capacity to make their own decisions about the collection, use and disclosure of their personal health information. This is demonstrated in the example above, which is a common issue where the parents are in a custody battle and are requesting records from their child's visits.
At all times, allied health professionals need to be aware of both the context and consequence of the decision their client is making. When in doubt, remember to keep good notes that outline your decision-making surrounding consent and capacity at the time you are making the decision and consider seeking legal advice.