|February 14, 2014|
Previously published on February 10, 2014
Schools and school administrators are very experienced in managing confidential information about their students. School administrators maintain a variety of records concerning their students, from academic performance to behavioural conduct. As more private schools begin to provide students with access to on- campus health clinics, the question becomes: how does the school manage the health records generated through the clinic? Are the health records treated in the same fashion as other school records? The answer is a resounding “no”. This article provides a brief overview of relevant privacy laws that pertain to the management of health information and how they apply to the disclosure of students’ personal health information.
The short answer is that personal health information is confidential. It is information that is generally only shared with other health care providers for the purpose of providing health care. A school administrator may have great interest in the information, particularly if the student about whom the information relates resides on-campus. However, great interest in the information does not lead to a legal right to access. A legal right to access exists when the student, the person about whom the information relates, or his or her decision maker (parent or guardian) has provided express consent for the information to be shared with the school administrator, teacher, coach or other school official.
In Ontario, personal health information is confidential and can only be disclosed if permitted by law or with the consent of the patient. This consent is presumed when it comes to disclosure to the health practitioners involved in providing a student’s care. However, this presumption does not automatically extend itself to the school that houses the health clinic. The law requires that a school and its administration receive express consent before accessing students’ health information for any reason. It is important for school administrators to understand that regulated health providers, including nurses and physicians, are mandated by their professional obligations to maintain the confidentiality of health information and to ensure it is only disclosed in accordance with the law. Breach of confidentiality provisions could place the disclosing health practitioner’s professional license in jeopardy and subject the individual accessing the information to fines.
Consent is the key to ensuring appropriate information flow between an on-campus health clinic and a school. Of course, one of the primary reasons schools offer such services is to ensure students have timely access to health care and to ensure that the school community is equipped to manage the health needs of the student. It is likely that many parents would expect the school to know precisely what care has been provided to a child in the health clinic. The health issue could impact on the student’s school performance, behaviour or participation in school activities. As such, it is very important to establish consent procedures to properly manage student health information.
Many schools will already have a process in place for requesting background medical information from its students upon enrollment. This is common and expected practice. In our view, it could also become common practice to obtain written consent authorizing designated school officials to have access to a student’s health information from an on-campus health clinic. If the school explains in writing to parents and students what information it will be seeking, why the information will be sought, and how it will be used, then the school can obtain written consent authorizing it to receive students’ health information.
Parents and students mature enough to make their own health decisions ought to be asked to sign a written consent form confirming the consent for the health clinic to share information with school administrators. This form would need to set out what information is being collected about the student, who will have access to that information, who gets to decide if additional people should have access to the information and how newly acquired information will be managed through the on-site health clinic. The form can be drafted such that it provides consent for the clinic to share information that comes to its attention over the course of the school year.
Given that it is very reasonable and appropriate for a school to insist that certain information be shared, if such consent were denied, the school would be able to decide whether it could still support that student’s enrollment in the activity for which the information is being sought, or if necessary, the school itself. The school would want to talk to parents or students who refuse to consent to understand the rationale for the refusal and to ensure it explains to the parent and student the implications of the refusal.
If a school is seeking to obtain consent, it must also consider who to ask. For a student who is 16 years of age or older, consent should generally be obtained directly from him or her. Alternatively, for a student under 16, consent should generally be obtained from his or her parent or guardian. Both of these rules are subject to exception based on a student’s mental capacity to consent (i.e. the ability to understand and appreciate what it means to disclose that information). While not required by law, it is reasonable to ask both parents and students to sign the consent when the student is over age 12 and can generally understand the nature of the request. This assists in ensuring that both the parents and students understand the implications of signing the consent form.
Legally, it is within a school’s prerogative to request consent for unfettered access students’ health care records at an on-site clinic. However, prior to instituting such a policy, a school’s administration should consider the implications of making such a request of its students and parents. There may be a concern that students with serious challenges would avoid the health clinic and seek care elsewhere (or not at all) in order to keep that information away from the school. As such, it is important for a school to consider balancing its need for such information and the potential chilling effect that such disclosure may create for some students.