We rely on doctor-patient confidentiality and the privacy of our health information.
A recent arbitration decision focused on the high degree of privacy and confidentiality accorded personal health information and what a consent form from your employer may or may not include, Ontario Public Service Employees Union (Union) v Ontario (Treasury Board Secretariat), 2017 CanLII 52709 (ON GSB). What follows is a summary of information relevant to QUFA Members, mostly from the decision but also additional.
To release health information to your employer, your health care provider must have your written and knowledgeable express consent. ‘Knowledgeable’ includes knowing that you are allowed to withhold or refuse consent and that you may withdraw consent that has been given at any time.
The competing rights of employer and employee create a tension that must be reasonably balanced. The employee has a right to privacy and confidentiality and also a right to the Sick Leave benefit under our Collective Agreement. The employer has a legitimate business interest in administering Sick Leave and also a duty to accommodate.
In the OPSEU v Treasury Board decision, Arbitrator Dissanayake points to leading arbitral jurisprudence regarding consent to health information which says that “the employer is legitimately entitled to … “sufficient information” for the particular purpose, and that the extent of the entitlement would depend on the stage of the process the employer is engaged in, as well as circumstances of the particular case.”
First, who will provide the medical information and to whom?
Second, what health information is being requested?
Third, for what present and particular purpose is the information being sought?
Who. Names of the health care professional(s) and the HR specialist must be given and only those persons should be involved in the information exchange. Sometimes the HR specialist, Sydney Downey at Queen’s, might be temporarily absent and must be replaced. The employer should inform you of this and give the replacing person’s name and title to give you the opportunity to revoke your consent. Likewise if the HR Specialist needs to share information with anyone else, for example legal services or senior management, you must be informed even if they were named by title or office on the form you signed and you consented to their inclusion on a “need to know” basis.
What. This must be very specific and related to the present situation, not to some prospective situation. If clarification or additional health information must be requested of the same health care professional in connection with the same situation, then you should be advised beforehand what it is and why to give you an opportunity to revoke your consent should you choose to do so.
Why. The employer must explain why the information is required, for what particular purpose relevant to the present situation. More than one purpose could be stated on the same form, such as a checklist, but the form must clearly identify for which of these potential purposes the information is being sought and the information cannot be used for any other purpose(s). A listing of potential situations is unacceptable.
No contact with your health care professionals should take place without at least your knowledge. You should also know what health information has been shared. You may prefer to have all exchanges in writing and copied to you, or you may ask for notes of any conversations right after they take place.
Consent is not open ended in duration. Queen’s forms specify a year and also that you may revoke consent at any time.
Should different information be required, or should information be required from a different health care professional, or should the purpose for which the employer needs the information change, a new consent form must be provided to you for review and signature in each of these situations in order to keep you in the confidential medical information loop. This is necessary for informed and knowledgeable consent.
The forms I have seen at Queen’s do not comply with these restrictions and best practices. It is open to you to cross out and initial the parts that you do not consent to. You may also add in specific names rather than agree to a blanket consent of health care professionals. Stricter control over access to your health information might be cumbersome in practice, and it is up to you to decide how strict you wish to be. Know that best practices in access to health information are generally restrictive rather than liberal and you have the right to push in that direction. The Ministry of Health and Long-Term Care and the Information and Privacy Commissioner of Ontario provide additional resources.
27 February 2018
Ramneek Pooni can be reached at email@example.com
 Article 33 lays out the Sick Leave benefit which is the equivalent of Short Term Disability at other places.
 Queen’s pays your salary when you are on Sick Leave and monitors your return to work. http://www.queensu.ca/humanresources/policies/time-away/sick-leave/sick-leave-administrative-guidelines