Legislative amendments put health privacy at risk
On March 5, 2024, the Nova Scotian Minister of Finance introduced clauses in the province’s Financial Measure Act to would amend the Personal Health Information Act (PHIA). These amendments greatly expand the access of the Minister of Health to Nova Scotian’s private health records. The new powers extemd to the whole health department.
Lawyers provided by the Justice Centre filed a Notice of Application on November 29, 2024 challenging those amendments.
The lawyers are acting on behalf of applicants Dr. Chris Milburn, Dr. Aris Lavranos, Shelly Hipson, Valerie Henneberry, Susan Kaiser and the Nova Scotia Civil Liberties Association. The applicants represent a cross-section of stakeholders uniting around the issue of medical privacy.
Government officials can access private medical records without consent
These amendments give the provincial government the power to force doctors and other health care providers to disclose private medical records to government officials without their patients’ consent, for three broad, stated purposes.
Two of the government’s three broad purposes – (1) planning and management of the health care system, and (2) resource allocation – do not require actual patient medical records with identifying information to be disclosed to the government. In both cases, statistical or anonymous information would be enough. Yet, for reasons unknown, the government is insisting on getting its hands on actual patient records complete with names, birthdates, etc.
The third broad purpose – (3) creating or maintaining electronic health record programs and services – was included because the Nova Scotia government is planning on creating an “app” for Nova Scotians that will allow them to see their own personal health information (i.e. patient records, test results, etc.) more conveniently.
The proposed app could be based on informed consent, if the government wanted it
While this last broad purpose may sound good, there is no reason why the proposed “app” cannot be based on informed consent and personal choice. Nova Scotians should have the ability to opt out of a program that requires the government to gain access to their private medical information.
Not all Nova Scotians will feel comfortable disclosing their private medical information to the government. Yet, the new amendments to the PHIA will force disclosure of medical records to the government without requiring patient consent. Under the amended regime, Nova Scotians are currently unable to stop the government from forcing their doctors to disclose their private information.
The court application alleges that this forced disclosure by the medical community to politicians and government bureaucrats violates Sections 7 and 8 of the Canadian Charter of Rights and Freedoms and must be struck down. Section 7 protects the “right to life, liberty and security of the person.” Section 8 protects the “the right to be secure against unreasonable search or seizure.”
Citizens’ privacy rights are put in significant doubt
According to lead counsel, James Manson, the amended legislation seriously compromises Nova Scotians’ freedom to decide for themselves who gets to see their private medical information. Mr. Manson says that the amended regime puts Nova Scotians’ privacy rights, as guaranteed by the Charter, into significant doubt. “No one in Nova Scotia should lose control over who gets to see their private medical information,” he says. “That information should stay between them and their health care team.”
Mr. Manson continues, “The Supreme Court of Canada says that respect for individual privacy is an essential component of what it means to be free. The Court also says that Canadians have the right to personal autonomy, where individuals can make private choices free from state interference.”
It is expected that the application will take several months to get to a hearing.
Health privacy case heads to Nova Scotia Supreme Court
Lawyers will appear before the Nova Scotia Supreme Court on September 2 and 3, 2025, to help applicants gain standing to challenge amendments to the province’s Personal Health Information Act (PHIA). The amendments, passed in the spring of 2024 as part of an omnibus budget bill, require physicians, hospitals, and clinics to disclose patient records to the Minister of Health and Wellness without patient consent. The government intends to create an electronic database containing the medical histories of all Nova Scotians.
The applicants — including Dr. Chris Milburn, Dr. Aris Lavranos, Shelly Hipson, Valerie Henneberry, Susan Kaiser, and the Nova Scotia Civil Liberties Association — argue that these changes violate Nova Scotians’ rights to medical privacy under sections 7 and 8 of the Canadian Charter of Rights and Freedoms.
Constitutional lawyer Chris Fleury warns that granting a political officeholder access to personal health records without consent sets a dangerous precedent, undermines trust in the healthcare system, and risks turning private medical data into a political tool. While this case focuses on Nova Scotia, its outcome could have significant national implications as other provinces consider similar measures.
“Health care records contain among the most private and personal details of an individual’s life,” said Chris Fleury. “They deserve the highest level of protection from the intrusion of the state. Consent of the patient must be required before a government can obtain the records of a physician or other health care provider. It is astonishing that consent is totally absent from the current regulatory regime,” he added.
Court grants standing to group of doctors and patients
The Supreme Court of Nova Scotia has granted public interest standing to a group of physicians and patients in a major constitutional challenge to the province’s Personal Health Information Act (PHIA). The applicants are challenging 2024 amendments that compel doctors and other healthcare providers to disclose patients’ private medical information to government officials without consent.
The contested amendments, introduced through the province’s Financial Measures Act, authorize the Minister of Health and Wellness to obtain identifiable medical records for purposes such as healthcare planning, resource allocation, and the creation of electronic health record systems. The government’s goal is to develop a centralized electronic database containing the personal medical histories of all Nova Scotians—a move the applicants say undermines patient autonomy and confidentiality.
The applicants argue that these measures violate sections 7 and 8 of the Charter, which protect liberty, security of the person, and the right to be secure against unreasonable search or seizure. Constitutional lawyer Chris Fleury emphasized the sensitivity of the issue, noting that “health care records contain some of the most private and personal details of an individual’s life. Health records deserve the highest level of protection from the intrusion of the state.”
In her decision, Justice Denise Boudreau ruled that the applicants’ challenge raises a serious constitutional question and serves the public interest. The Court recognized that the physicians and patients bringing the case have a genuine and legitimate stake in the matter and that their application provides a reasonable and effective way to bring this issue before the Court.
The case will now move forward to a full hearing on the constitutionality of the PHIA amendments.