Healing, not Squealing: Recent Amendments to Alberta's Health Information Act

This short article examines recent legislation in the Canadian province of Alberta giving health care professionals the discretion to release patients' confidential medical information to police without disclosure or consent. A 2006 amendment to the Health Information Act permits such disclosure when the practitioner reasonably believes that: (i) the information relates to the possible commission of an offence; and (ii) that the disclosure will protect the health and safety of Albertans. We argue that the amendment is both unwise and unconstitutional. The amendment violates one of our most cherished ethical and legal principles; namely, that in the absence of either a judicial order or circumstances of imminent danger, health information must remain confidential. Without this assurance of confidentiality, people may refrain from obtaining critical treatment because they fear that their personal information will be turned over to the police. This concern may be particularly acute for members of certain disadvantaged groups, who are more likely than others to fear that sensitive information (such as addictions to illegal drugs or HIV status) could be disclosed to the authorities. Moreover, if people fail to report and seek treatment for health issues such as mental illness, addictions or infectious diseases, the health and safety of the general public could be placed at greater risk. The amendment is not only bad policy, it is also very likely unconstitutional. Its purpose and effect are to give police enhanced investigative powers, which the Constitution permits only the federal Parliament to do. It also probably violates s. 8 of the Charter, which gives everyone the right to be secure against unreasonable search or seizure. The Supreme Court has repeatedly stressed that this right prohibits police from obtaining confidential health information from health care workers in the absence of a warrant or exigent circumstances. As the Court has stated, health care providers ought not to be made part of the law enforcement machinery of the state. The amendment should be repealed. If it is not, its constitutionality should be challenged in the courts. In the meantime, professional associations and health authorities should adopt directives and implement procedures to strictly limit the disclosure of health information to police. The amendment gives health care providers the discretion to turn over their patients' information - it does not require them to do so. Given the myriad legal and ethical obligations on health professionals to protect their patients' privacy, from a strictly legal perspective this discretion should be exercised only rarely, if ever. In the absence of clear guidelines, however, many front-line practitioners are likely to succumb to pressure from police to disclose without fully considering their ethical and legal obligations. They should therefore be instructed never to release health information to police under the authority of this amendment. Such a policy is in the best interests of patients, the general public, and health care workers themselves, who may face liability for failing to adhere to their duties of confidentiality.

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