Union of BC Indian Chiefs v. Provincial Health Services Authority and others, 2024 BCHRT 300
Date Issued: October 24, 2024
File: CS-001385
Indexed as: Union of BC Indian Chiefs v. Provincial Health Services Authority and others, 2024 BCHRT 300
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Union of BC Indian Chiefs
COMPLAINANT
AND:
Provincial Health Services Authority, Vancouver Coastal Health Authority, and British Columbia Transplant Society
RESPONDENTS
REASONS FOR DECISION
APPLICATIONS FOR DISCLOSURE AND NOTICE TO A CLASS
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Jason Gratl
Counsel for the Respondents: Alon Mizrahi
I INTRODUCTION
[1] This is a class complaint brought by the Union of BC Indian Chiefs [ UBCIC ] on behalf of two classes of Indigenous people against the health care providers responsible for managing and delivering liver transplants in the province: Provincial Health Services Authority [ PHSA ], BC Transplant Society, and Vancouver Coastal Health [together, Respondents ]. UBCIC alleges that the process to determine access to a liver transplant discriminates against Indigenous people based on their race, ancestry, and physical disability, in violation of s. 8 of the Human Rights Code.
[2] Much of the information about members of the class – including who they are, and their relevant medical records – is private information held exclusively by the Respondents. This gives rise to issues about whether or how UBCIC can access information about potential class members from the Respondents, as well as how to notify class members about the complaint and their option to opt out of it. In this decision, I am asked to decide:
a. whether the Respondents must disclose redacted medical records of potential class members to UBCIC;
b. how members of the class must be advised of, and exercise, an option to opt out of the class complaint; and
c. whether to order the Respondents to confirm they have identified all members of the class.
[3] For the reasons that follow, I deny UBCIC’s application for disclosure of medical records. I direct the Respondents to refer all potential class members they are aware of to UBCIC for information about opting out of the complaint, but that opt out forms be sent to counsel for the Respondents. Finally, I deny the request to make an order at this stage compelling the Respondents to confirm they have identified all potential class members.
II APPLICATION FOR DISCLOSURE
[4] UBCIC brings the complaint on behalf of two classes of people defined as:
Indigenous persons who have been adversely impacted by a policy requiring six months of abstinence from alcohol before a liver transplant [ Abstinence Class ]; and
Indigenous persons with PBC who have been adversely impacted by the use of MELD-Na scores to determine their access to a liver transplant [ MELD-Na Class ]
[together, the Class ]
[5] The Respondents say that they have identified approximately 30 people who appear to be members of the Class. UBCIC seeks disclosure of their “redacted” medical records. It says these records are relevant to the issues in the complaint, and necessary to develop expert reports and prepare for cross-examination.
[6] The Respondents do not dispute that these records are relevant to the complaint. However, they oppose disclosure of these records without the consent of the Class members, on the basis that it would be an unjustified invasion of privacy. It proposes to notify the Class members of the complaint and disclose medical records for Class members who provide written authorization.
[7] In support of their position, the Respondents have referred me to case law governing the disclosure of medical records in the class action context. I agree these cases are helpful and their principles are equally applicable in the Tribunal’s proceedings for class complaints.
[8] The starting point is to recognize that a person’s medical records are confidential. They contain highly sensitive and private information. In this case, the Respondents say – and UBCIC does not dispute – that the medical records sought by UBCIC will often include: a thorough review of the patient’s medical and social history; past and present relevant diseases or infections, including sexually transmitted and hepatitis infections; the patient’s history of alcohol and substance use; an in depth social work review addressing the patient’s living circumstances, family supports, and social factors that may impact the success of the transplant; current symptoms and impact of cirrhosis; laboratory results; and commentary on a patient’s life expectancy. This type of information is “highly private and personal” and “goes to the personal integrity and autonomy of the patient”: McInerney v. MacDonald, [1992] 2 SCR 138 at 148.
[9] Given these privacy interests, medical information must not be divulged without consent of the patient, except in “limited circumstances” where there is “some paramount reason” to override the patient’s right to confidentiality: Halls v. Mitchell, [1928] 2 SCR 125 at 136; Logan v. Hong, 2013 BCCA 249 at para. 25. There is a “high test” for interference with the confidentiality of a patient’s medical records: Logan at para. 10.
[10] In Logan, the Court of Appeal considered whether a class proceeding about alleged harms suffered by patients who received a certain injection presented the type of “paramount reason” that would justify invading the patients’ privacy to disclose their contact information to the class representative. The Court concluded it did not, reasoning:
Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest . In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship. [at para. 11, emphasis added]
[11] The BC Supreme Court further developed these principles in Massie v. Provincial Health Services Authority, 2023 BCSC 1713. The case arose in a class action against PHSA for the conduct of an unlicensed nurse who had provided care to approximately 1,150 patients in gynecological surgical procedures. The representative plaintiff sought an order for the PHSA to disclose a complete list of the mailing addresses of class members who had interactions with the nurse. The Court, relying on Logan, dismissed the application.
[12] In doing so, the Court explained that a plaintiff seeking disclosure of confidential patient information in a class action bears an onus to “displace patient confidentiality”: para. 29. This includes demonstrating that alternative means of giving notice to the class, contemplated by the Class Proceedings Act, would be insufficient: para. 30. Ultimately, they must persuade a court that there are “serious concerns relating to health or safety” or that “the release of patient confidential information is in the public interest”: at para. 31, citing Logan at para. 11.
[13] In this case, UBCIC acknowledges the privacy interests in the medical records it is seeking, but simply says those interests can be addressed through redactions. While not specified, I take the reference to redactions to mean that the patient’s name and direct identifying information (e.g. address, health care number, phone number) would be removed. Elsewhere in their submission, they appear to argue, without referencing any legal authority, that s. 33(2)(m) of the Freedom of Information and Protection of Privacy Act and s. 18(2)(a) of the E-Health (Personal Health Information Access and Protection of Privacy) Act authorizes disclosure of private medical information to UBCIC’s legal counsel.
[14] To begin, I reject the suggestion that either FIPPA or the E-Health Act authorize disclosure of medical information to legal counsel representing a class of people in a human rights complaint. Rather, that legislation authorizes disclosure of personal information to “the Attorney General or legal counsel for the public body” (meaning the body holding the information) “for the purpose of preparing or obtaining legal advice for the government or public body” or “for use in civil proceedings involving the government or public body”. Class counsel is neither the Attorney General nor counsel for the Respondents, and so they are not entitled to disclosure under these provisions.
[15] Next, I am not satisfied that the privacy interests of Class members would be sufficiently safeguarded by simply redacting their names and personal identifiers. I agree with, and adopt, the Respondents’ argument on this point:
The information about one’s issues with alcohol and substance use varies from person to person. Information about family and living circumstances varies from person to person. The individuality inherent in every individual story is unique to the individual and there is no way to redact the patient’s life from the record.
Even if members of the public do not know who the Tribunal may be referring to in a final decision, that individual person does as it is their life story being examined. It is a gross breach of any individual’s autonomy over the story of their life for someone else to make the decision to put their story into a public record without their consent. This outcome could not be anticipated by any potential patient who decides to meet with health professionals regarding their medical concerns.
[16] I acknowledge the quasi-constitutional status of human rights legislation, and the important purposes of the Code. However, I am not persuaded that a human rights complaint is, on its own, the type of “paramount reason” that would justify invading the privacy of Class members by disclosing their highly sensitive medical information to a third party, without their knowledge and consent.
[17] In my view, the appropriate course of action here is the one proposed by the Respondents. The Respondents will contact all potential Class members they are aware of, and provide them with an authorization form giving consent to the Respondents to disclose their medical records to UBCIC’s legal counsel. The Respondents will disclose medical information where that disclosure is authorized by the individual. This is similar to the approach this Tribunal has taken in other class complaints which touch on personal and sensitive information of a class: see e.g. Kirchmeier and others v. University of British Columbia (No. 2), 2017 BCHRT 186 at paras. 53-57; Professor obo others v. The University and others (No. 2), 2018 BCHRT 48 at paras. 21-22.
[18] The Respondents have drafted a proposed authorization form. I understand that UBCIC takes issue with the following paragraph:
I understand by signing this Authorization that my personal medical information may be shared with experts that are retained by either UBCIC or the Respondents for the purposes of prosecuting or defending the Complaint. Any such sharing of information will be carried out [with care] to ensure … a minimal invasion of any complainant’s privacy.
If I understand its submissions correctly, UBCIC objects to the authorization granting the Respondents access to the Class members’ private medical information. In its proposed authorization form, it has removed this paragraph.
[19] In my view, this paragraph is not necessary. The authorization form is clear that the patient consents to the release of their medical records to UBCIC for the purpose of evidence in this human rights complaint. UBCIC counsel can advise individuals, and answer questions, about how this may unfold.
[20] UBCIC’s application for disclosure of redacted medical records, without the consent of the patient, is denied. The Respondents must provide potential Class members with their proposed authorization form, with the paragraph cited above removed. They must disclose medical records where the individual has provided their authorization.
III NOTICE TO THE CLASS AND OPT OUT INFORMATION
[21] The Respondents drafted a proposed notice to deliver to potential members of the Class, which includes information about the complaint, how to opt out, and how to authorize disclosure of medical records. UBCIC objected to several aspects of that notice. As I understand it, some of UBCIC’s initial concerns have been addressed by consent of the parties – namely, Class members are directed to contact UBCIC’s legal counsel for information about the complaint and to authorize disclosure of their medical records. Further, although UBCIC says it objects to language directing potential class members to Respondents’ counsel for legal advice, I do not know what language this refers to and I see no basis for concern that Respondents’ counsel may be giving legal advice to Class members.
[22] The outstanding dispute relates to the manner and timing by which Class members are given the option to opt out of the complaint.
[23] The Respondents propose to include opt out information, including an opt out form, with their package of materials giving notice to the Class. They propose a deadline of July 1, 2025 – one month before the hearing of the complaint – for Class members to opt out. They propose that opt out forms be provided to Respondents’ counsel, in order to preserve the confidentiality of potential Class members.
[24] UBCIC agrees to provide opt out information to the Class, and has long expressed an intention to do so: UBCIC obo Indigenous persons v. Ministry of Health and others, 2020 BCHRT 144 at para. 27. It says, however, that this information can be provided later in the process and should be exclusively provided by UBCIC. It says that Class members should be directed to contact UBCIC’s counsel for information and to submit an opt-out form.
[25] The Tribunal’s Rules do not direct whether and how opt out information should be provided to members of a class complaint. Depending on the circumstances, the Tribunal may decline to impose an opt out option at all: C.S.W.U. Local 1611 v. SELI Canada and others (No. 3), 2007 BCHRT 423 [ SELI ] at para. 89. In considering whether and how to provide class members an option to opt out, the Tribunal aims to further the just and timely resolution of the complaint and the purposes of the Code.
[26] In my view, UBCIC’s proposal that it should be the party to provide Class members with opt out information is a reasonable one. UBCIC’s counsel is best placed to advise Class members of their rights, and any potential legal implications of opting out. This can be achieved by UBCIC publishing information about the complaint, including opt out information, on a platform accessible to members of the public. This platform should be referenced in the notice materials that will be delivered by the Respondents. UBCIC advises that it intends to present a comprehensive and detailed communication strategy to the Tribunal before November 30, 2024. I am satisfied that it is reasonable to give UBCIC the opportunity to develop this strategy, including opt out information, though the timing may need to be adjusted.
[27] However, I agree with the Respondents that, given the significant privacy interests engaged in this complaint, there must be a way for a person to opt out of the complaint and maintain privacy over their medical information. As in Kirchmeier, “the nature of the allegations in the complaint, and the means by which [the Respondents] came to be in possession of the identities of the class members, supports valuing the protection of privacy over the facilitation of the representative complaint”: para. 54. This goal would not be achieved if potential Class members had to identify themselves to UBCIC in order to opt out.
[28] Here, I respectfully disagree with UBCIC that, by identifying themselves on an opt out form, a person is not disclosing private medical information. They are. At a minimum, they are disclosing that they are Indigenous, they have sought access to a liver transplant, and they may have issues with alcohol use. Both Logan and Massie contemplated only the disclosure of patient names, without underlying medical records. In both cases, the courts held that this was highly confidential information that should not be disclosed merely to serve the purpose of a class action. In Logan, the Court of Appeal expressly rejected a distinction between the disclosure of potential class members and their underlying medical records, reasoning that where someone is identified as a potential class member, that information alone “discloses the fact of a particular medical treatment, in addition to the address and contact information, all of which the patient may choose not to broadcast”: para. 12. This analysis was not affected, the Court held, by the prospect that “nearly 95% of the patients whose names are expected to be produced under the order will notbe members of the class”: para. 17 (emphasis in original). This is a complete answer to UBCIC’s argument that disclosure of a Class member’s identity is minimally invasive of privacy because it merely conveys that the person may be a member of the Class.
[29] Aside from their general objection to having Class members communicate at all with counsel for the Respondents, UBCIC has not identified any countervailing interests that would weigh against Class members delivering their opt out notices to the Respondents. There is no evidence, for example, that the Respondents are putting “undue pressure on class members to opt out and thereby threatening the viability of the complaint”: Kirchmeier at para. 62, referring to the situation in SELI. Class members will be clearly and exclusively directed to UBCIC’s counsel for legal advice, including about the implications of opting out of the complaint.
[30] If, later in the process, it becomes necessary to identify people who have opted out of the complaint, then the parties and Tribunal can address how to do this while maintaining – as much as reasonably possible – the privacy of potential Class members. I do not consider it a foregone conclusion, as UBCIC argues, that the Respondents will have to share opt out forms with UBCIC. The issue can be addressed if or when it arises.
[31] In sum:
a. The Respondents should modify their notice to potential Class members to remove the sections about opting out of the class and the opt out form, and refer potential Class members to UBCIC for more information about the complaint, including options to opt out of the complaint.
b. UBCIC must make information about the complaint, including information about how to opt out of the complaint, publicly available on a platform that can be accessed anonymously. I do not agree with UBCIC that there is a basis to delay opt out information until later in the process; this information should be available at the front end.
c. The opt out forms should be delivered to counsel for the Respondents.
[32] The timing of these steps will have to be coordinated to ensure that the notice package to Class members can refer people to the appropriate place for information. This should happen as soon as possible, to ensure that Class members can provide authorization forms and contact UBCIC counsel well in advance of next year’s hearing. If the parties need assistance developing a reasonable timeline, they can request a case management conference.
IV ORDER FOR RESPONDENTS TO CONFIRM CLASS MEMBERS IDENTIFIED
[33] The UBCIC seeks an order requiring the Respondents to confirm that all Class members have been identified. It argues that there are likely many more than 30 affected patients, including patients who were never referred to an endocrinologist or the transplant clinic. In response, the Respondents say that they do not have access to the identities and/or medical records of persons who never attended their facilities.
[34] At this stage, there is an insufficient basis to make this order. Based on how UBCIC has described the potential scope of the Class, it is not clear to me how the Respondents would be able to identify potential Class members that were never referred to the transplant clinic. The Respondents say they have reviewed the records in their possession and identified 30 potential Class members. At this stage, I have no reason to go behind that assertion and make a further order.
V CONCLUSION
[35] UBCIC’s application for disclosure is denied. The parties should proceed with notice to potential Class members, including information about opting out, in the manner I have set out above. If there are issues outstanding, or the parties cannot agree on a timeline to deliver notice to the Class, they may request a case conference.
Devyn Cousineau
Vice Chair