Court application filed against province change to medical privacy laws

The Justice Centre for Constitutional Freedoms filed a Notice of Application Nov. 29 in the Supreme Court of Nova Scotia, challenging the provincial government’s recent amendments to its medical privacy legislation under Sections 7 and 8 of the Charter of Rights and Freedoms.

The Act states its purpose to “govern the collection, use, disclosure, retention, disposal and destruction of personal health information in a manner that recognizes both the right of individuals to protect their personal health information and the need of custodians to collect, use and disclose personal health information to provide, support and manage health care”. But a group of doctors and lawyers say this right to protect individual health information is now being violated.

The changes to the Personal Health Information Act (PHIA) came under Houston’s Conservatives during the 2024 budget process. The amendments now give the provincial government the power to compel doctors and other health care providers to disclose patient information and medical records to government officials without patients’ consent.

The government can compel the disclosure of this information for three sweeping reasons: planning and management of the health care system, resource allocation, and creating or maintaining electronic health record programs and services. The Justice Centre says that the first two reasons do not require the disclosure of personal information; anonymous or statistical information can support these goals.

The third reason – creating or maintaining electronic health record programs and services – was included because the province isplanning the creation of an app for citizens to access their own personal health information and records. But the Justice Centre argues that this app should be based on consent and personal choice. If someone wants to opt out of the program, they should be able to.

“Not all Nova Scotians will feel comfortable disclosing their private medical information to the government,” a press release from the Justice Centre states. “Under the amended regime, Nova Scotians are currently unable to stop the government from forcing their doctors to disclose their private information.”

The application alleges the forced disclosure violates Section 7 and 8 of the Charter. Section 7 protects the “right to life, liberty and security of the person.” Section 8 protects the “the right to be secure against unreasonable search or seizure.”

“No one in Nova Scotia should lose control over who gets to see their private medical information,” James Manson, lead legal counsel, said in a press release. “That information should stay between them and their health care team.”

Once formally commenced, it is expected that the application will take several months to get to a hearing.