Inability to Consent Due to Incapacity

A determination of incapacity with respect to the consent
to collection, use or disclosure of personal health
information may be different from a determination of
incapacity with respect to consenting to health care
under the Health Care Consent Act, 1996.
With respect to substitute consent in the case of an
incapable patient, physicians should consult section
23 of PHIPA to determine who may be capable of giving,
withholding or withdrawing consent.

Patient Access to Records
Generally speaking, all information contained in the
record must be released to patients upon request,
including letters from consultants, even when such
letters are stamped or indicated as confidential documents.
However, in very limited circumstances, physicians
can use their discretion and refuse to provide
patients with access to their records. Physicians should
consult section 52 of PHIPA for a comprehensive list
of such circumstances. Examples include situations
where the information was collected for use in a proceeding
(e.g., a proceeding in a Court or before a
committee of the College), or where granting access
could reasonably be expected to result in a risk of serious
bodily harm.
Physicians cannot refuse to grant a patient access to their
records for the purpose of avoiding a legal proceeding.
If a physician has refused a patient access to his or her
medical record, the patient has the right to challenge
the physician’s decision in Court under subsection
54(8) of PHIPA.