Group files court challenge to Nova Scotia's personal health information law
Legislative change made this year gave government greater access to personal health records
A group of individuals and the non-profit Nova Scotia Civil Liberties Association are asking the Nova Scotia Supreme Court to quash recent changes to a law that give the province greater access to personal health records.
"We have serious concerns about the constitutionality of what's happened," said James Manson, a lawyer representing the groups, in an interview on CBC Radio's Information Morning.
The application to the court argues that parts of Nova Scotia's Personal Health Information Act and corresponding regulations infringe on the Canadian Charter of Rights and Freedoms.
The province amended the act earlier this year so that it now compels doctors and other health-care providers to disclose patients' personal health information to the health minister or her surrogate.
It gives three purposes for which the information could be used: planning and management of the health system, resource allocation, and creating or maintaining electronic health record programs and services.
Michelle Thompson, who was health minister when the amendments were made, said she was interested only in aggregate, anonymized data to help improve the health-care system, not in individualized records. She said personal information would be used only for the purpose of populating the province's health-care app, YourHealthNS, so people can access their own health records.
Manson said the level of access granted through the province's amended law isn't necessary for getting aggregate, anonymized data. He said he doesn't understand why the province would need patient charts with names and birthdates in order to plan and manage the health-care system or allocate resources.
As for collecting health records to release it back to people through the app, Manson said it should only be done with permission, not by default.
"It might be a good idea, it might be useful for people to have patient information at their fingertips so that when they go around Nova Scotia, they can have that information ready for new doctors and things like that."
But the problem, he continued, "is that this entire system is not predicated on consent."
Manson said his clients would like the court to strike down the new clause in the Personal Health Information Act.
The province has not filed a response to the application. A spokesperson told CBC News on Thursday there would be no comment while the matter is before the courts.
Past complaints
These are not the first complaints levelled against the Houston government's changes to Nova Scotia's health records law. Shortly after the amendments were tabled in March, Doctors Nova Scotia said they were too broad and could compromise doctor-patient relationships.
Dr. Colin Audain, president of Doctors Nova Scotia, appealed to the province through the law amendments committee to make changes before passing the law.
He said he was confident in assurances from Premier Tim Houston and senior government officials that parameters would be put in place to safeguard patient privacy, but he wanted the government to go a step further.
"We would like to see greater protection within the legislation to ensure the legacy of this government's intentions and the safeguards that will be in place will be honoured in the future," he told the committee.
Audain proposed that the government add a stipulation to the new clause stating that disclosure of personal health information would happen only "when the requirements are consistent with terms negotiated with affected custodian professional associations."
The Houston government did not make the proposed change.
Who are the applicants?
The Nova Scotia Civil Liberties Association is a local non-profit that formed in 2021. It has focused primarily on government policies related to the COVID-19 pandemic and what it describes as unjustifiable harms caused by lockdowns and mandates for vaccines and masks.
The other plaintiffs are Chris Milburn and Aris Lavranos — both physicians — and Shelly Hipson, Valerie Henneberry and Susan Kaiser.
The individuals all argue in the application that they have not consented to the disclosure of their own health information. Lavranos and Milburn add that disclosing their patients' information would put them in violation of their "duties of confidentiality," and undermine their abilities to effectively care for patients.
The court challenge is being paid for by the national non-profit Justice Centre for Constitutional Freedoms.
ABOUT THE AUTHOR
