Canada: Alberta Health Services v Farkas: Balancing The Interests Of Freedom Of Information And Solicitor-client Privilege

This decision of the Court of Queen's Bench of Alberta sets forth the scope of solicitor-client privilege with respect to legal advice provided to government organizations, public bodies, and agencies, and the ability of those involved in our medical system to consult with lawyers to properly perform their duties and inform their decisions.

Elizabeth Farkas was a patient at the South Health Campus Hospital in Calgary from July 2, 2014 until her death on July 2, 2015. In the month prior to her death, Ms. Farkas' condition began to deteriorate rapidly. Her health care team wished to change her goals of care designation to exclude lifesaving resuscitation.

Ms. Farkas' son, Frank Farkas, was involved in making health care decisions for Ms. Farkas. He disagreed with the proposed change in designation. Despite his disagreement, her care designation was changed, and Ms. Farkas passed away without life saving measures being attempted.

Following the death of his mother, Mr. Farkas applied for disclosure of records held by Alberta Health Services ("AHS") under Alberta's Freedom of Information and Protection of Privacy Act. AHS provided the requested records, but redacted portions thereof. One basis cited for such redactions was solicitor-client privilege. Dissatisfied with this disclosure, Mr. Farkas submitted a request for review to the Office of the Information and Privacy Commissioner (the "OIPC").

The OIPC Decision

The adjudicator with the OIPC found that the majority of the redacted communications were health information under the Health Information Act (Alberta) ("HIA)" because the records included information about Ms. Farkas' physical and mental health, and found that there were no provisions of the HIA that permitted AHS to withhold the communications. She also found that the common law of solicitor-client privilege did not apply to prevent disclosure of the redacted information, because, she held, the communications were not confidential in relation to the patient whose health and treatment were the subject of the communications. In the result, she ordered AHS to disclose most of the redacted records. AHS brought an application for judicial review of the adjudicator's decision. This case is the result of that application.

What constitutes "health information" under the HIA?

Section 7 of the HIA sets out an individual's right to access "any record containing health information about the individual". Health information is defined in the HIA as "diagnostic, treatment and care information" or "registration information". The definitional sections of the HIA are silent on whether or not health information should include privileged information. The adjudicator found that it should. By contrast, Justice deWit, who heard AHS's application for judicial review in this matter, accepted AHS's submission that in its silence, the HIA should not be interpreted to include solicitor-client privileged information in the definition of health information. The HIA makes no reference to solicitor-client privileged records, or privileged records of any type. Justice deWit followed the Supreme Court of Canada's guidance in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44, that: "[o]pen textured language governing production of documents will be read not to include solicitor-client documents". Moreover, Justice deWit noted, Blood Tribe holds that legislation must be interpreted to give effect to solicitor-client privilege unless there is a clear and unambiguous intent to abrogate the privilege.

Privilege aside, Justice deWIt disagreed with the adjudicator's characterization of the redacted information as health information under the HIA. He said simply because a record contains information about a person's health does not mean the record is a health information record under the HIA. In this case legal counsel engaged with AHS staff to answer their questions about a legal issue. She was giving advice to AHS and AHS staff. She was not directing clinical care or making clinical decisions. He held that whether or not the legal advice given to a health care provider influences the health care provider's decision, does not change the legal advice itself into a health service.

What about the common law relating to solicitor-client privilege?

In the course of his decision, Justice deWit spent a great deal of time highlighting the importance of solicitor-client privilege. He noted the Supreme Court of Canada decision in Descôteaux et al v Mierzwinski [1982] 1 SCR 860, that solicitor-client privilege must not be interfered with unless absolutely necessary in the circumstances, and that this covers all communications made within the framework of the solicitor-client relationship. Justice deWit called this a "continuum of communications".

He held that even if the records in this case did constitute health information under the HIA, the HIA did not contain the clear and unambiguous language necessary pursuant to Blood Tribe to abrogate the solicitor-client privilege attached to the records. Section 11(1)(d) of the HIA permits a custodian to refuse to disclose health information if the disclosure could reasonably be expected to reveal advice, proposals, recommendations, analysis or policy options. "Advice", in this context, he held, can include solicitor-client privilege. The OIPC adjudicator, he held, erred in her interpretation of section 11(1)(d), but more importantly, "she failed to give solicitor-client privilege the near absolute protection it is meant to receive at common law".

Justice deWit acknowledged that a portion of patient information may be sent to a lawyer by a health care team in order to obtain legal advice, but he held that this becomes part of the protected continuum of communications between solicitor and client. He also clarified that AHS legal counsel does not owe a duty to the patient, but to AHS, as their client. He found that the adjudicator had therefore erred in finding that the communications were not confidential in relation to the patient whose health and treatment were the subject of the communications.

Medical Privilege vs. Solicitor-client Privilege

The adjudicator in this case relied on McInerney v McDonald, [1992] 2 SCR 138, for the general propositions that a physician-patient relationship is a fiduciary relationship, and medical privilege belongs to the patient such that a physician cannot withhold records containing legal advice since the patient owns the confidentiality. Justice deWit noted that Supreme Court Justice, Justice La Forest held in McInerney that a patient's general right of access to his or her records is not absolute, and the court has discretion to refuse access to records where non-disclosure is appropriate. Justice deWit opined that this was one such circumstance where non-disclosure is appropriate.

Implications

This decision highlights the importance of the solicitor-client relationship, particularly in the context of legal advice provided to government organizations, public bodies, and agencies. Justice deWit noted in his decision that government organizations and public bodies will often require legal advice and their right to solicitor-client privilege should not be viewed as being of lesser importance. He further noted that those involved in our medical system need the ability to consult with lawyers to properly inform their decisions and perform their duties. While patient information may by sent to a lawyer by a health care provider in order to obtain legal advice, that disclosure of patient information does not abrogate the solicitor-client privilege attached to that communication, despite a patient's right under the HIA to access records containing health information about the individual.

View the full decision on Canlii.

Originally published 07 May 2020

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