Physician refuses to provide access to individual's personal information

PIPEDA Case Summary #2005-306

(Section 2; Principles 4.9, 4.9.1, paragraphs 9(3)(a) and 9(3)(d))

Complaints

An individual alleged that a doctor, who conducted an independent medical examination of the individual on behalf of an insurance company, refused to provide him with access to his personal information.

Summary of Investigation

The complainant wrote to the doctor, asking for a copy of the report the doctor sent to the insurance company. He also asked for a copy of the questions the doctor asked and the complainant's answers. The doctor provided the complainant with a copy of the report that he prepared. As he had not kept a record of the questions that he asked during the examination or the answers, he could not provide those.

The complainant then requested that the doctor provide him with the notes that he had taken during the examination. The doctor refused, indicating that in his view, they did not form part of the complainant's medical record, and were therefore not his personal information. The doctor stated, however, that if the Privacy Commissioner's Office determined that this information was the complainant's personal information, he would rely on two exceptions under the Personal Information Protection and Electronic Documents Act (the Act) to refuse access, namely, solicitor-client privilege and information generated in the course of a formal dispute resolution process.

Findings

Issued March 17, 2005

Application: Section 2 defines personal information as "information about an identifiable individual"; Principle 4.9 states that upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information; and Principle 4.9.1 provides that an organization may choose to make sensitive medical information available through a medical practitioner. Exceptions to the right of access cited by the doctor include paragraph 9(3)(a), which states that an organization is not required to give access to personal information only if the information is protected by solicitor-client privilege; and paragraph 9(3)(d), which states that an organization may not give access only if the information was generated in the course of a formal dispute resolution process.

In making her determinations, the Assistant Privacy Commissioner deliberated as follows:

• The Assistant Commissioner determined that the notes taken by the doctor in support of his report were the complainant's personal information, as defined in section 2.
• The doctor argued that the independent medical examination took place in the context of a litigious situation, and that access could therefore be denied because the information was protected by solicitor-client privilege. In the doctor's view, his role was analogous to that of an objective third party retained as an expert in the context of ongoing litigation. He contended that an expert's report, as well as his or her notes and drafts, are confidential and protected by solicitor-client and litigation privilege.
• The Assistant Commissioner, however, noted that, in the circumstances of this complaint, the doctor had not been retained by the insurance company as an expert in the context of ongoing litigation. Rather, he had been retained as an expert to assist the company in determining its obligations under a group insurance policy. She therefore did not accept the doctor's reliance on paragraph 9(3)(a) to deny the complainant access.
• As for the other cited exception, paragraph 9(3)(d), the doctor stated that the need for a physician's assessment in the circumstances of an independent medical examination arises because of a dispute between the insurer and insured about the insured's continuing entitlement to benefits. The doctor maintained that if there was no dispute about the extent of the coverage, no assessment of the insured would be required.
• However, nothing in the documents provided to the complainant (such as the claim form, the short- and long-term disability benefits descriptions, or the notification that his benefits were being terminated) suggested that the role of the independent medical examiner arises in the context of resolving a formal dispute. In fact, the benefits documents indicated that the insured must report for a medical examination as often as may reasonably be required by a licensed doctor of the insurer's choice. Even the letter notifying the complainant that his benefits were being terminated made it clear that the examiner's role was to assist the insurance company in determining its position with respect to the complainant's continuing claim for benefits. It also informed the complainant that he could initiate a dispute resolution process if he was not happy with the decision. Such a process, noted the Assistant Commissioner, would have been engaged after the independent medical examination, not before.
• Thus, the Assistant Commissioner determined that the notes were generated in the process of conducting a medical evaluation, intended to assist the insurer in determining the complainant's eligibility for benefits, not in the course of a dispute resolution process. Since the doctor could not rely on the exception set out in paragraph 9(3)(d) to deny access, she found that he had denied the complainant access to his personal information, contrary to Principle 4.9.
• The Assistant Commissioner recommended that the doctor provide the complainant with access, indicating that he could do so under the circumstances set out in Principle 4.9.1 by making the information available through a medical practitioner.

The Assistant Commissioner concluded that the complaint was well-founded.