Commentary On Roy c. CISSS de Chaudières-Appalaches - Access To The Deceased's

Summary

The author comments on a Superior Court judgment overturning the defendant's decision and granting the deceased's spouse access to her medical record.

INTRODUCTION

During a succession, an heir or liquidator may often find it necessary to access documents concerning the deceased. The facts in Roy c. CISSS de Chaudière-Appalaches1 are unusual, but provide a good explanation of the principles on access to medical records.

I - THE FACTS

Both the applicant and his deceased wife were Jehovah's Witnesses. The wife signed a form refusing any blood transfusion during the upcoming birth of their first child. The applicant was authorized to consent to or refuse any care, and to consult the medical record.

The delivery did not go well and the deceased had to undergo a hysterectomy. Despite several requests by the medical staff, the applicant refused to consent to a blood transfusion and the deceased died one week following the birth.

The media learned of the news, and a connection was made between the refusal to allow the transfusion and the death. A criminal charge was filed against the applicant and a coroner's inquiry opened.

This was the context in which the applicant requested access to the deceased's entire medical record. The request was denied and the applicant applied for a review before the Superior Court.

II - DECISION

First note that pursuant to section 27 of the Act respecting health services and social services (the "AHSSS"), the plaintiff was entitled to ask the Commission d'accès à l'information, the Court of Québec, or the Superior Court to review the decision.

The decision does not mention why the Superior Court was chosen, but the Commission d'accès à l'information may not have been chosen because of the backlog in processing times.

Given the options available to the applicant, the Superior Court concluded that the action was not a judicial review, but more similar to an action normally launched before the Commission d'accès à l'information (de novo).

The Court recalled the principle that medical records are confidential. Section 23 of the AHSSS, however, sets out an exception:

23. The heirs, legatees by particular title and legal representatives of a deceased user are entitled to be given communication of information contained in his record to the extent that such communication is necessary for the exercise of their rights in such capacity. The same applies to the person entitled to the payment of a benefit under an...