Police Experience with the Health Information Act: The Edmonton Police Service's Submissions to the Select Special Health Information Act Review Committee

The purpose of this article is to identify the issues and concerns that have been raised by members of the Edmonton Police Service (EPS) with respect to the Health Information Act (1) (HIA) and to provide a summary of the submissions made by the EPS to the Select Special Health Information Act Review Committee this past summer. This article is not a critical assessment or analysis of the EPS position. Nor is it intended as a response to criticism of the Committee's law enforcement recommendations. The EPS welcomes this opportunity to explain the effect the HIA has had on the ability of its members to perform their duties as police officers, and further, to advocate for what law enforcement agencies believe is a more appropriate balance between respecting patient privacy rights and the ability of peace officers to conduct lawful investigations. Since the inception of the HIA, police services in Alberta have consistently advocated for more effective law enforcement disclosure provisions. Privacy law in Canada is a patchwork of legislation at both the federal and provincial level. Invariably, federal and provincial privacy legislation that applies to both the public and private sectors allows for the disclosure of personal information to law enforcement agencies for investigative purposes. Provincial public sector privacy legislation across the country provides for disclosure of personal information to law enforcement agencies, without the consent of the individual to whom the information relates, for the purpose of assisting with an investigation. (2) The federal Privacy Act permits the release of personal information, without consent, to investigative bodies or law enforcement agencies for the purpose of carrying out a lawful investigation or administering or enforcing any law. (3) The federal Personal Information Protection and Electronic Documents Act provides that private organizations governed by the Act may release personal information without consent to government institutions. This includes law enforcement agencies for the purposes of enforcing any law or carrying out an investigation related to the enforcement of any law. (4) Alberta's Personal Information Protection Act permits the disclosure of information, without consent, to a law enforcement agency to assist in an investigation. (5) Alberta's Health Information Act stands apart from the privacy regime that exists throughout Canada. The HIA currently only allows for disclosure of health information to a police service in two limited circumstances: * for the purpose of investigating an offence involving a life-threatening personal injury to the individual only where such disclosure is not contrary to the express wishes of the individual (s. 35(1)(j)); or * where the custodian reasonably believes that the disclosure may avert or minimize an imminent danger to the health or safety of any person (s. 35(1)(m)). The circumstances in which the imminent danger exception will apply are limited. Examples include a situation in which a patient vocalizes an intention to harm someone upon release. The HIA provisions impede police efforts to investigate criminal activity that has resulted in injury, particularly where the injured party has engaged in criminal activity and does not want police involvement. Examples cited include organized crime and gang violence as well as impaired driving situations. Where an individual indicates that they do not want the police involved, the health care provider must not disclose any information to police unless the imminent danger exception applies. Generally, the EPS seeks amendment to the HIA such that custodians could disclose information to law enforcement agencies where the custodian reasonably suspects that a person seeking medical attention has been involved in some form of criminal activity. Both the Edmonton and Calgary Police Services have suggested that the HIA be amended to resemble Alberta's Freedom of Information and Protection of Privacy Act (6), which allows for the disclosure of information to law enforcement agencies for the purposes of assisting with an investigation. …

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