News | October 03, 2014

By Karen Kleiss, Edmonton JournalEDMONTON - In a precedent-setting decision, Alberta’s Court of Queen’s Bench has ruled the province’s Health Information Act protects any information broadly connected to a patient’s care, even if that information is about another person.The sweeping decision from Justice Thomas Wakeling last month overturned a ruling from Alberta’s Information and Privacy Commissioner, and called the earlier decision “irrational” and “unreasonable.”

“Openness is not the goal of the Health Information Act,” Wakeling wrote in the 40-page decision. “The preservation of the privacy of an individual’s health information is … the unequivocal direction set out in (the law).”

For example, Wakeling said, if a wife tells her doctor she is having trouble sleeping in part because her husband snores, the law protects the fact that the husband snores — even though that information is not about the patient.

Jonathan Rossall, a lawyer with Edmonton firm McLennan Ross and a leading authority on health care law, said Wakeling’s decision significantly expands the type of health information protected from prying eyes under Alberta’s health privacy law.

It means the law also covers “third-party information that is relevant to the care of the patient,” he said.

Edmonton’s Shauna McHarg had wanted to see Covenant Health documents that explain why she had been banned in the past and now has restricted visitation hours to see her parents, both of whom are residents at the Edmonton General Continuing Care Centre.

“Covenant Health employees have concluded some of Ms. McHarg’s acts pose a threat to the well-being of her parents,” Wakeling wrote. “She has fed them in an unsafe manner and interfered with the provision of health services to her parents.”

McHarg said the ruling was “devastating” and rejected Wakeling’s findings.

“It has been terrible. My parents are in care because they’re older and they have health problems. It’s natural the family be involved.”

McHarg’s case has been held up as an example of a larger problem in Alberta, where families banned from health facilities have no way to challenge those bans.

Bill Moore-Kilgannon of Public Interest Alberta said at least 10 people have come forward with similar complaints.

He fears Wakeling’s decision will silence those who want to advocate for loved ones in the health-care system, for fear they will be banned or restricted from visiting their loved ones.

“What Shauna’s case has proven is there is no recourse,” he said. “All of the current processes have failed her.”

The government gave no indication Friday it is considering changes to any avenues of recourse in that situation.

During a five-year battle, McHarg won support from Alberta’s Ombudsman and the Information and Privacy Commissioner, both of whom said she should be allowed to see the documents. Wakeling’s ruling supersedes both earlier rulings.

McHarg maintains she is banned from seeing her father, can only visit her mother for an hour a day, and does not know why.

The whole truth about her case, however, remains unclear. Covenant Health is bound by health privacy laws, but released a statement Friday from the parents’ “agent” — the person McHarg’s parents asked to make health decisions for them in the event they became unable to do so.

“Shauna is able to visit her mother and her father under the current visitation conditions,” said the agent, who was not named. “Both Covenant Health and the agent have provided reasons.”

Nobody provided a complete set of facts to the Journal on Friday.

A spokeswoman for Information and Privacy Commissioner Jill Clayton said her office cannot appeal Wakeling’s decision under the terms of a separate Court of Queen’s bench decision that prohibits her from appealing when a judge has overruled her.

That separate ruling is now under appeal at the Supreme Court of Canada.

kkleiss@edmontonjournal.com

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