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.