Under section 104 of the Health Information Act (“HIA”) the rights and powers conferred on an individual by the Act may be exercised by that individual or on their behalf by the following people:
An individual who is 18 years of age or older may exercise his or her own rights under the Act.
Individuals under 18 years of age will be able to exercise their own rights or powers under the Act if they are a “mature minor.” To determine whether a minor meets this definition it must be demonstrated that the minor understands the nature of the right or power to be exercised and the consequences of exercising such a right.
This provision leaves determination of whether an individual is a mature minor in the hands of AHS. In Order F2003-017 and H2005-001 the Privacy Commissioner states that factors that must be considered to determine whether a person under 18 is a mature minor is the individual’s age, maturity, independence, level of understanding and the nature and complexity of the HIA rights or powers. It is indicated that the level of understanding required for an individual to understand the nature and consequences of exercising rights or powers under HIA is not a particularly onerous one.
If an individual is under 18 years of age and has AHS determined that the individual is not a mature minor a guardian can exercise that individual’s rights and powers under the Act.
A “guardian” is a person who is legally responsible for the care and custody of the minor. This definition may not extend to the biological parents of a child in all circumstances. Other guardians may be the Director of Child, Youth and Family Enhancement or other individual who has been granted a guardianship order by the courts. If circumstances dictate, the document demonstrating the authority of the guardian should be reviewed.
If an individual is deceased and was 18 years of age or over immediately before death, the individual’s personal representative (e.g.-executor or administrator of the individual’s estate) can exercise the right of access or other right or power of the individual under HIA.
However, the personal representative’s right is limited to requesting the health information or records that relate to the administration of the individual’s estate. For example, information in the individual’s medical record about the individual’s health prior to death may be needed to assist the executor in a legal action related to the death and settlement of the estate.
Proof of the right to act on behalf of the deceased is normally a copy of the signed and attested will or a court document naming the representative to act in matters related to the estate (e.g.-probate or letters of administration).
The right to access health information for an individual who was under the age of 18 immediately before death would be exercised by the individual’s guardian (as in section 104(1)(c)).
If a guardian or trustee has been appointed for the individual under the Adult, Guardian, Trustee Act (AGTA) the guardian or trustee may exercise the individual’s rights under the Act.
The document (usually a court order) governing the nature of the guardianship or trusteeship provides the authority for the representative to act. Examination of the order should take place to ensure the exercise of any powers under HIA relates to the powers and duties set out in the court order.
If an agent has been designated under the Personal Directives Act, the agent can exercise the individual’s rights. The exercise of such rights is limited to the rights or powers given to the agent under the personal directive. Personal directives cannot provide authority over financial matters.
Examination of the personal directive will be necessary prior to any disclosure. It will also be necessary to confirm that the subject of the directive is in fact incapacitated and that the “triggering event” which enables the directive to become effective has in fact occurred.
A power of attorney is an authority given to one person (named the attorney) to do certain acts in the name of, and personally representing, the person granting the power (called the donor). A power of attorney may come into effect in the event of the mental incapacity of the donor, provided it complies with the provisions of the Powers of Attorney Act. The death of a donor usually revokes a power of attorney.
The exercise of any rights or powers under HIA must relate to the powers and duties conferred by the power of attorney. It will be necessary to verify the identity of the person holding the power of attorney and ensure that the power allows for the disclosure requested or any other power or right being invoked.
A power of attorney is an authority given to one person (named the attorney) to do certain acts in the name of, and personally representing, the person granting the power (called the donor). A power of attorney may come into effect immediately or in the event of the mental incapacity of the donor, provided it complies with the provisions of the Powers of Attorney Act. The death of a donor usually revokes a power of attorney.
The “nearest relative” of a “formal patient” as defined in section 1(1)(e) of the Mental Health Act may exercise the right of access of an individual if the exercise of the right or power is necessary to carry out the obligations of the nearest relative under that Act.
A “formal patient” under the Mental Health Act means a patient detained in a facility on the basis of two admission certificate or two renewal certificates. “Nearest relative” is defined in section 1(i) of that Act.
For certified (or formal) patients of various psychiatric facilities who do not have a legal representative or agent, the nearest relative may make specified decisions in the patient’s best interest.
Any individual can provide authorization to another person to act on his or her behalf. Such authorization must be in writing, and can provide authority to the representative to exercise any right or undertake any power, including the right to provide consent under various provisions under HIA or the right to access the individual’s health information. The authorization must be signed by the individual and preferably witnessed.
This section provides that any notice required to be given to an individual under HIA may be given to the person entitled to exercise the individual’s rights and powers referred to in section 104(1).