"Consent and the Personal Health information ... - Miller Thomson

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–13 – A child or parent of the individual, or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of the parent. This paragraph does not include a parent who has only a right of access to the individual. If a children’s aid society or other person is lawfully entitled to consent in the place of the parent, this paragraph does not include the parent. A parent of the individual with only a right of access to the individual. A brother or sister of the individual. Any other relative of the individual. Section 26(6) sets out that, as a last resort, if no person falls under a description set out in s. 26(1), then a decision can be made by the Public Guardian and Trustee. Children There is no minimum age of consent under PHIPA. As a result, if a child meets the test for capacity, he or she is entitled to make his or her own decisions with respect to the collection, use or disclosure of PHI. If the child is over the age of sixteen, then those provisions that are applicable to any individual apply equally to the child. In other words, a child who is capable and aged sixteen years or older may consent on his or her own behalf or may authorize another capable person who is at least sixteen years of age to provide consent in his or her place. 60 If a child is capable and less than sixteen years old, a custodial parent, a Children’s Aid Society, or a person lawfully entitled to stand in the place of a parent may also consent the collection, use or disclosure of PHI on the child’s behalf, as may the child. Such persons cannot exercise this authority if the PHI relates to treatment about which the child has made a decision on his or her own pursuant to the HCCA or counselling in which the child has participated under the Child and Family Services Act. 61 Finally, if the child is capable and less than 16 years of age, and there is a person who is entitled to act as the substitute decision-maker as set out above, a decision of the child prevails over that person in the event of a conflict. Thus, both the child and the substitute decision-maker may potentially be involved in the particular decision, however, ultimately, the child’s decision must be complied with. 62 60 PHIPA, s. 23(1)1 61 PHIPA, s. 23(1)2i. and ii. 62 PHIPA, s. 23(3)
–14 – Deceased Persons Consent for deceased individuals for the collection, use or disclosure of information of PHI may be provided by the deceased’s estate trustee. If there is no estate trustee, the person who has assumed responsibility for the administration of the estate may give or refuse consent. 63 Where the deceased individual had a will or where it is necessary to probate an estate, it can be expected that there is documentation relating to the appointment of an estate trustee. Where possible, a HIC should verify the authority of the estate trustee by obtaining a notarized copy of the will, a “Certificate of Appointment with a Will”or a “Certificate of Appointment of Estate Trustee without a Will”for its records. Where the HIC is obtaining consent from a “person who has assumed responsibility for the administration of the deceased’s estate”, a HIC may obtain consent from this individual if it is reasonable for to rely on the accuracy of the assertion made by that person, regarding their identity. 64 Depending upon the circumstances, some HICs may request additional documentation to support this contention, such as a notarized letter from the individual stating that he or she has assumed this responsibility and has no knowledge of any other individual who is or may claim to be the estate trustee of the individual. Relying on the Assertions of Those who Claim Authority to Consent PHIPA permits a HIC to rely upon the assertions of a person who claims authority to give consent under the Act “unless it is not reasonable to do so in the circumstances” 65 . A HIC may rely upon the assertion of another person that consent is granted with respect to access to, or the collection, use or disclosure of PHI, and specifically that: The person is entitled to consent to the collection, use or disclosure of PHI for that individual; The person is over the age of sixteen; The person is not prohibited by a court order or separation agreement from having access to the individual; No other person ranked higher or equally exists or if they exist, they would not object to the person making the decision. Notwithstanding the above, where authority is derived pursuant to a legal document, it is prudent for a HIC to request a copy of the document for its records. Furthermore, a HIC may also ask questions to establish the individual’s authority and document the answers provided. Where there is a question about the individual’s authority, a HIC must make reasonable efforts to determine the appropriate substitute decision maker before taking action on those instructions. 63 PHIPA, s. 23(4) 64 PHIPA, s. 20(1) 65 PHIPA. s. 71(4)
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"Consent and the Personal Health information ... - Miller Thomson

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