Medical Records
  
The rule of confidentiality that applies to the doctor-patient relationship may have to be balanced against the right of a respondent on a human rights complaint to provide a full answer and defence. A Tribunal decision has dealt with a request for access to medical records where a complainant was seeking an award for pain and suffering.¹⁵⁵ The Tribunal found that the confidentiality and privacy rights of an individual can be waived expressly or be implied by an individual's acts. It noted that the commencement of legal action in a court of law for personal injuries caused by the negligence of another renders a plaintiff's medical records of vital importance to a fair and just resolution of the dispute. Applying this reasoning to human rights proceedings, the Tribunal found that "...when claiming compensation for pain and suffering, a complainant implicitly accepts some intrusions upon his privacy as well as the possibility that the respondent will be able to access his medical records and files or, put more broadly, his personal health information. This does not, however, entail that the complainant grants the respondent a licence to delve into private aspects of his life which are not related to his claim or are not arguably relevant for the proper disposition of the litigation."¹⁵⁶ 

The Tribunal applied this rule of relevancy to the requested records in the case at bar and ordered access to various documents in the possession of named doctors and other health care officials. However, the Tribunal directed that any documents so produced be reviewed by the Chairperson in order to determine their admissibility in evidence. It also noted that the parties had agreed that the documents would be vetted by the Tribunal to determine which ones were actually related to the medical condition in question. This arrangement would "...ensure the proper protection of the privacy and confidentiality rights of the complainant without depriving the respondent of his right to have access to all relevant information and to present a full answer and defence. The agreed process will prevent unnecessary and vexatious infringements of the complainant's rights since the tribunal will be in a position to supervise and control the procedures that must be undertaken before the production of any relevant document."¹⁵⁷ 

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End Notes