Inability to Consent Due to Incapacity

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.

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CONFIDENTIALITY

CONFIDENTIALITY

In most cases, it is professional misconduct to give
information concerning the condition of a patient or
any services rendered to a patient to any other person
except with the consent of the patient.18 However,
there are some instances in which physicians are able
to, or are required to, disclose personal health information
without patient consent. Examples of these situations
are included below. For further detail, physicians
should consult the College’s Confidentialty of Personal
Health Information policy.

Withdrawal of Consent and Conditional
Consent
Physicians should be aware that patients are entitled to
withdraw their consent to the disclosure of their personal
health information. While this withdrawal will
not affect disclosures made prior to the withdrawal, it
will apply to any disclosures made after the withdrawal.
Physicians should exercise care and caution when disclosing
personal health information, once the patient
has withdrawn his or her consent regarding disclosure.
There may be some situations in which patients will
give their consent to the collection, use or disclosure
of their personal health information, but will impose
conditions or restrictions on the manner in which
their information is used or disclosed. Where patients
wish to give conditional consent, physicians should
ask patients to set out any and all restrictions in writing.
No restriction or condition imposed by a patient
shall prevent physicians from recording information
that is required by law, by standards of professional
practice, or by standards of instititutional practice.
The physician disclosing the record must indicate on
the record that clinically relevant information is missing
from it.

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