New police powers affect confidential medical records
The Missing Persons Act was recently passed without publicity and apparently without opposition from MLAs. However a close look at the wording of the law raises concerns about possible consequences, especially for the practice of psychotherapy, that seem to have been overlooked.
I have explained my concerns at https://www.therapytorontotherapist.ca/pp2.htm
Beth Mares RP
Thank you for raising this issue.
Regards
Natasha Graham
Psychthearpy notes require hightened privacy protection. To voice this legal misstep in the Missing Person Act, write to Attorney General directly. Write to opposition legal critic. If can get Ontario and Canadian Psychological Assn support, get them to write. If signatures can be collected, RP or otherwise, send them along. Canada has fallen behind on keeping higher privacys of the clinic notes for over a decade.
In US, American Psychology Association, has been promoting the hightened privacy requirement on psychotherapy notes. APA categorizes psychotherapy records into 2 parts: general records and 'clinic note'. I copied some on 'clinic notes'. Details on what's 'general' and the whole article, follow the link at the bottom.
"Psychotherapy notes, which may include more detailed or sensitive client information, must be kept separately from the general record in order to be afforded heightened protection under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. For example, health insurers cannot obtain them without a completely voluntary patient authorization. "
I reseached on this becase an incidence (one of many) that a labour arbitrator ordered a sexual harassment victim to release 5 year psychothreapy notes to prove the claim of stress was credible. Even after proof that HR already confirmed the stress a long time before, the order was not withdrawn. This practice was frequently and successfully used to silence the victims.
The link to APA on ecord keeping:
https://www.apa.org/monitor/2012/02/ce-corner
Thanks, Jenny. Employers being allowed to deter sexual harassment complaints by claiming they need the employee's therapy notes and retraumatizing them, though no great surprise, is creepy. The unions should be up in arms about this.
Thanks also for the info about the APA privacy practices.
Great list of people to contact. I have my own list, but if you and other concerned people could each pass this information along to even a couple of people or organizations, it would really help to get something done.
Beth
Hi Beth, surely i will pass to others. Please count me in if collecting signatures. In the mean time, changeorg or survey monkey can still be used for this purpose.
While labour arbitrators can still order release clinic notes, actually case law requires 'absolutely necessary and least invasive'. In addition employer DO NOT HAVE the right to access by labour law, writing to Ministry of Labour contact confirmed this.
We can ignore the issues and RETRAUMATISE, but we will not be able handle the endless creation of mental injuries.
Best wishes!
Jenny Tang
I am still concerned about the large number of people who have no knowledge of this ACT and the Police Powers. The government’s flagrant disregard for Consent, Privacy and Professional Judgement, is dangerous. It’s also alarming how low-key the Powers of the Act still remain. Surprisingly, professional colleges and associations seemed to have meekly accepted it, with little fight. I understand it’s umbrella intent, however whose wellbeing is it truly serving, person versus “organization”. Another threat by “big brother “ to personal choice and privacy ?
I agree, this is worrisome. If therapy notes are easily accessible, people who need CBT will hesitate to go. Without patients' complete openness therapist can not effectively work with them.
Hi Jenny. Yes, it can be a deterrent to therapy and/or honest disclosure. At the onset of counselling clients are made aware of the therapists obligations to report harm to self or others, and any aspects of abuse (children, elderly, etc). And if we receive a court subpoena for clinical notes; although any lawyer will advise to only provide notes regarding the specific issue requested, not the entire file.
The ACT brings into question what therapists would now also be obligated to tell clients upfront ? This next example will sound sarcastic but can be a real occurrence. “ There is a new Missing Persons Act that gives the Police new powers. If you are reported missing to the Police, they can show up on my doorstep and demand my clinical notes on you. So if you, as a competent healthy adult of legal age, decide to ‘takeoff’ without telling anyone, I need you to know that this may happen.”
Now I can see this being legit if the client is underage, a ward of the court, been formed, or under court sanctioned power of attorney due to being psychologically/medically incapacitated.
It’s a quagmire that will likely be clarified when someone or some group takes it to court. Not a great way to establish and have to clarify our individual freedoms and human rights. There is one lawyer I can think of consulting about all of this, however I am unable to do so. His name is Robert Solomon. Some of you may be familiar with him, as he also presents workshops on legal requirements and aspects of clinical practice. No harm if anyone wants to contact him, I guess.
Sorry, I didn’t expect to be so lengthy, but it is an unknown. Take care, Randi