Long Term Care Law Newsletter

Disclosure of Residents’ Personal Health Information to Family Members

Autumn 2020

It goes without saying that long term care facilities have a duty to protect residents’ personal health information. Sometimes family members may request a long term care facility, or its employees, to disclose confidential personal health information about a resident. This newsletter explores important considerations for long term care facilities with respect to what personal health information can be disclosed and to whom.

What is Personal Health Information?

Our Summer 2020 Long Term Care Newsletter outlined key considerations for long term care facilities with respect to nursing notes and the legal requirements to retain and create medical records (https://www.wickwireholm.com/nursing-notes-key-considerations-for-long-term-care-facilities). This newsletter follows up on this topic to clarify when a resident’s health information can be disclosed to family members.

Nova Scotia’s Personal Health Information Act (“PHIA”) outlines the legal requirements for the collection, use, disclosure, retention, and destruction of personal health information.  Personal health information is information that custodians collect to help make decisions about an individual’s health care. This can include health conditions, treatment, family health history, or even financial information related to the individual’s eligibility for services and benefits.

Who can Consent to the Disclosure of Personal Health Information?

Generally, under the PHIA, long term care facilities have an obligation to keep a resident’s personal health information confidential unless there is consent to disclose. Consent for the collection, use or disclosure of personal health information must meet the following requirements:

  1. It must be given by the individual;
  2. It must be knowledgeable;
  3. It must be related to the specific information at issue; and
  4. It must be voluntary.

For consent to be valid, the individual must have capacity to consent. Capacity is defined in section 3(b) of the PHIA as follows:

…the ability to understand information that is relevant to the making of a decision related to the collection, use or disclosure of personal health information and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

Further, the capacity of an individual must be considered in each instance where consent is being sought.

Consent for disclosure of personal health information may become more complicated when a resident loses capacity. In such instances, a substitute decision maker (“SDM”) may make decisions with respect to the collection, use or disclosure of personal health information of that resident. Section 21(2) of the PHIA sets out the following hierarchical list of individuals who can become the SDM:

  1. a person who is authorized by or required by law to act on behalf of the individual;
  2. the individual’s guardian appointed by a court of competent jurisdiction;
  3. the spouse of the individual;
  4. an adult child of the individual;
  5. a parent of the individual;
  6. a person who stands in loco parentis to the individual;
  7. an adult sibling of the individual;
  8. a grandparent of the individual;
  9. an adult grandchild of the individual;
  10. an adult aunt or uncle of the individual;
  11. an adult niece or nephew of the individual;
  12. any other adult next of kin of the individual;
  13. the Public Trustee.

The following criteria also applies when determining the appropriate SDM:

  1. the person must have been in contact with the individual within the last 12 months (or a court order has been granted to waive this requirement);
  2. the person is willing to act as SDM;
  3. the person knows of no person of a higher category on the hierarchical list who is willing and able to make the decision; and
  4. the person certifies (in writing) their relationship to the individual and the facts that meet the criteria set out above.

Once the appropriate SDM is determined, that person must make decisions based on the individual’s prior expressed wishes, if any. In the absence of any instructions, the SDM should make decisions based on their understanding of the individual’s values and beliefs, if known.  If the individual’s values and beliefs are unknown, the SDM must make decisions in the individual’s best interests.

Key Considerations in Situations of Family Conflict

Long term care facilities are sometimes faced with difficult decisions about the disclosure of a resident’s personal health information in situations of family conflict. Consider the following example. A resident has a Personal Directive which names one child as the resident’s delegate to make personal and health care decisions for the resident; due to family conflict, that child requests that the long term care facility limit its disclosure of health information to the resident’s other children. What happens if the other children ask about the resident’s health condition?

The resident’s personal health information cannot be disclosed without the resident’s consent. If the resident lacks capacity to make this decision, the long term care facility must determine who can provide consent for disclosure. The child appointed under the Personal Directive is a person authorized by law to act on behalf of an individual (#1 on the hierarchical list above). A such, this child is the resident’s SDM with respect to consent for disclosure of personal health information. If this child refuses to consent to the disclosure to the other children, the long term care facility should not disclose the resident’s health condition to the other children.

Depending on the situation and the different children’s relationships with the resident, the long term care facility should remind the SDM of their obligations under the PHIA. Specifically, the SDM must make decisions based on the resident’s beliefs and values; if the SDM thinks the resident would want their health condition disclosed to the other children, the SDM may agree to provide consent in that context. If the SDM refuses consent, this should be in writing. In certain circumstances it may be prudent for the long term care facility to request the SDM to outline their reasons, in writing, why disclosure to other family members is not in the resident’s best interests.

Conclusion

Long term care facilities must keep a resident’s personal health information confidential unless they receive consent to disclose it. When a resident lacks capacity and cannot consent to this disclosure, the long term care facility must determine who can consent on the resident’s behalf. In situations of family conflict, it is important for long term care facilities to ensure the resident’s records are clear on this issue regarding what personal health information can be disclosed and to whom.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter. If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.