Question: Recent news reports suggest that U.S. border security agents have access to medical records of Canadians. This is beyond outrageous and nullifies the entire basis of trust in a doctor-patient relationship. Effectively a government spy is in every examining room!
Why would I even go to a hospital or doctor in Ontario if the result is going to be public disclosure of my medical records to any government agency (Canadian or foreign), or insurance company, or employer, or police force? I now have no medical care, not without tremendous risk of disclosure of my highly personal medical information.
Answer: There are many troubling issues that have been raised by the media reports. But new details are emerging and the situation may be different than you were originally led to believe.
For the benefit of those who have not being following the story, I will briefly re-cap what’s happened.
On November 25, Ellen Richardson went to Toronto Pearson International Airport to board a plane for New York, the starting point of a 10-day cruise to the Caribbean.
A U.S. Customs and Border Protection agent turned her away, apparently citing the fact she had been hospitalized in June 2012 for “a mental-health episode”. Ms. Richardson was told, if she wanted to enter the United States at some future date, she would need a “medical clearance” from a U.S.-approved doctor.
The incident seemed to suggest border agents, working for the U.S. Department of Homeland Security, are able to access personal medical files on their computer screens at the airport.
Ontario’s Information and Privacy Commissioner Ann Cavoukian has launched a probe into the matter. However, a spokesperson for provincial Health Minister Deb Matthews says border officials don’t have access to the medical or health records of Ontario residents.
In recent days, several legal experts have speculated that the information about Ms. Richardson’s hospitalization likely came through Canadian police – not the Ministry of Health.
Even Ms. Richardson’s lawyer, David McGhee, now thinks police were the likely source.
Ms. Richardson suffered from depression in 2012, following the break-up of a relationship. She made what she reportedly described as a “half-hearted” suicide attempt by consuming some pills. Her mother called 911 and an ambulance took her to hospital.
“When people have a problem they call 911. They don’t know that 911 is operated by the Toronto Police Department,” says Barry Swadron, a prominent Toronto lawyer.
He explains the police routinely make notes of these events, including suicide attempts and mental-health episodes. Some of this information is then added to the RCMP-operated Police Information Centre (CPIC) database, which is accessible to the U.S. Federal Bureau of Investigation and other American agencies such as the Department of Homeland Security.
Mr. McGhee confirmed in a telephone conversation with me that “police did attend” when the 911 call was made at the time of Ms. Richardson’s attempted suicide. “The local police relay the information to the RCMP and the RCMP then shovel it over to U.S. authorities. That appears to be the way it works,” he says.
Mr. McGhee is still seeking additional information to verify that this was what happened to his client.
But even if the Ministry of Health was not involved, that’s cold comfort to mental-health advocates who are worried about the type of non-criminal data that are often collected by the police and shared with foreign governments.
“It’s discriminatory,” says Abby Deshman, a lawyer and program director with the Canadian Civil Liberties Association.
“The minute you put mental-health information into police data bases, you run the risk of people making decisions based on that information,” she adds.
“There is frequently a wrong association made between mental health and violence … and that can lead to direct discrimination against an individual.”
In Ms. Richardson’s case, an apparent police record of her hospitalization for depression was enough to bar her from the United States, and she ended up missing the departure of her cruise ship.
Under the U.S. Immigration and Nationality Act, border agents can reject travellers who are considered to have a physical or mental disorder that could pose a threat to property, safety or welfare of themselves or others.
Ms. Richardson has sought treatment for her depression and her condition is stable, according to media reports. (Ms. Richardson is paralyzed below the waist as a result of a failed suicide attempt in 2001 when she jumped off a bridge.)
This was not the first time U.S. border agents have turned back Canadians because of mental-health information contained in police files. Two years ago, the CBC reported that more than a dozen Canadians had told the Psychiatric Patient Advocate Office in Toronto they were kept out of the U.S. in circumstances that resemble what happened to Ms. Richardson.
So when it comes to border crossings, the key issue seems to be what’s in the police files.
But it’s still worthwhile reviewing the measures that are meant to keep your medical records confidential because that is the main focus of your question.
The first thing to know is that the Ontario Ministry of Health doesn’t actually have a complete copy of your medical records – those files are retained by your doctors and the hospitals you visit.
At Sunnybrook Health Sciences Centre, for example, patients can see their own medical records through a secure online service called MyChart. The patients themselves have the ability to grant access to third parties such as other doctors and family members.
Other hospitals and physicians’ offices have adopted, or are in the process of creating, other electronic medical records. That essentially means there is not a single and complete record system for the entire province. However, all health-care providers must abide by the Personal Health Information Protection Act, which contains rules for ensuring the privacy of the medical records under their control.
What the province does collect is billing information. So, if you’re treated by a psychiatrist, the Ontario Health Insurance Plan will have a record of the date of your visit and your diagnosis, but not the substance of your conversation. Still, much can be learned about the state of your health by a list of your medical appointments. The treatments you receive, if they are covered by OHIP or the provincial drug benefit plan, would also be on file. So the province has adopted various security precautions to protect that information.
I asked David Jensen, a ministry spokesperson, to paint a picture of those safeguards.
In an email, he replied:
The Ministry of Health and Long-Term Care has a number of databases that contain different types of information about the health services received by individuals. Each database is organized differently. Most databases, however, do not contain the names of individuals, and are organized by Health Card number. The Ministry protects the privacy of individuals by not including the name and Health Card number together. If a person inadvertently or improperly accessed an individual’s record from a database containing Health Card numbers and a description of health services, the individual’s identity would not be revealed. A separate Ministry database that specifically links Health Card number with name and date of birth – and has separate and independent security processes –would also have to be accessed by the person in order for them to identify the individual who received the services described in the other database.
This explanation helps show why it’s highly unlikely U.S. border agents tapped into Ministry of Health records to learn about Ms. Richardson’s medical history.
I hope this overview will ease your concerns about your own medical records – at least as they pertain to the files kept by your health-care providers and the health ministry.
The police are another matter. “It would be extremely troubling if people felt they couldn’t phone the police or an ambulance because they were worried about the implications down the road of having it on record,” says Ms. Deshman.
