PRIVACY LEGISLATION
Health care providers, of all disciplines, are presently in a real squeeze play. On the one hand when we receive an ICBC request for information, along with a copy of a signed Medical Authorization Release, we have been required by Section 28, of the Revised Motor Vehicle Act, to fill out and submit a CL-19 form and /or release clinical records. Sounds simple so far doesn't it. After all that is what has always been done and never a problem, right?
Well all that has changed with the introduction (January 1, 2004), and is now the law of the land, by way of "PIPA" (Personal Information Protection Act SBC 2003, c.63). PIPA is provincial law, applying to all private organizations involved in `commercial activity`) while PIPEDA applies to private organizations that are federally regulated. Basically, PIPA trumps Section 28, period!
It all comes down to what is called Deemed Consent and Expressed Consent. Deemed consent is what an average person would typically expect a health care practitioner to do with the personal information you give us (i.e. for our records, pass onto another health care provider for say a referral, etc.). Expressed consent is what you the patient must give when the personal information, you have given the health care practitioner, is used for something other than what it was deemed for, ie. passing on information to an insurance provider such as ICBC.
PIPA sections 10 (1)(a) and 17(a) are the only 2 instances where one can release personal information to a third party. In the case of 10 (1)(a) you have to inform the patient (verbally or in writing) why you are collecting the information. 17(a) is more in line with the deemed consent aspect. That being that sharing your personal information based on what a reasonable person considers appropriate. The last point would appear to have a degree of latitude the degree of which I have no doubt will vary practitioner to practitioner.
The bottom line is getting permission, in writing, by YOU, the patient, is what is required should the care giver feel they must release your personal information to ICBC, or any other third party for that matter even with a photocopied release of information form accompanying it (which typically have a specific mention of PIPA, but not always).
When you initially meet with your insurance providers representative it is more the norm than the exception that they attempt to have you sign what is called a Medical Authorization Form. In the case of ICBC it is form CL-145. I am not dispersing legal advice by informing you of your rights that you do not have to sign that form. The form can be signed at any time. By not signing it your insurance provider has to approach you first to get your permission, in writing, in order to get information about your case (ie. health care providers clinical notes in your file, etc.).
If you have already signed it then the insurance provider simply has to photocopy it and send it to your care giver(s). Upon receiving it the care giver(s) are legally required by Section 28 (of the provincial Motor Vehicle Act) to release copies of the contents of your file to them. Such correspondence can happen long after the collision with you never knowing about it. I have yet to ever have an insurance provider contact the patient/client and inform them that they have just contacted your care provider(s) and have copies of your file, after you have signed the release form.
Therefore, if you don't want anyone associated with your claim/case releasing any of your information to a third party you best inform them of your wishes and make sure they have recorded it (ie. written it in your chart notes). That said, if you have withdrawn your Medical Authorization Form (something not a lot of people are aware they can do at anytime after having signed it) it is not a bad idea to get it in writing from your insurance representative on their employer's stationary.