A recent order of the BC Information and Privacy Commission reaffirmed that without a Representation Agreement (RA), a person will not be allowed to access the medical records of their spouse.
In this case, a husband asked for all the medical records of his wife’s time at Peace Arch Hospital (PAH). He believed the Enduring Power of Attorney she made, appointing him, gave him the right to act on his wife’s behalf to receive her medical records.
However, the adjudicator at the Privacy Commission said no. The adjudicator found that the husband did not have the authority to act for his wife to access her medical records under s. 4(1)(b) of the FIPPA Regulation. The reason was that the Enduring Power of Attorney only covered financial affairs and legal matters—not health care. The request was outside the authority of the husband, as his wife’s attorney.
The case didn’t say whether the wife had a Representation Agreement (RA). If she did, and included the authority for health care, he likely would have been allowed to receive the full medical records. According to the law, someone with an RA has the right to the same records as the adult has rights to, as long as they are requesting those records on behalf of the adult in their capacity as representative, and they relate to the incapability of the adult, or an area of authority given under the RA.
The case was unclear about the wife’s level of capability at the time the request for records was made by her husband using the Enduring Power of Attorney. Even if she was incapable of managing her health care and/or financial affairs on her own at that time, it would not have legally stopped her from making a Representation Agreement with health and personal care authorities under s.7 of the Representation Agreement Act (an RA7H+P). If she made an RA7H+P appointing her husband as representative, he likely would have been allowed to receive the full medical records. And of course, if she had learned about Representation Agreements in advance of any of this happening, she could have made a Section 9 Representation Agreement when she met the traditional capability requirements earlier in her life.
What about the husband being a Temporary Substitute Decision Maker (TSDM) for his wife? Would he have access to the records in that role? It is true that if the wife did not have an RA for health care, the husband would be the wife’s first-ranked TSDM for health care matters. But a TSDM does not have the same rights to medical records as a Representative under an RA. A TSDM can only see the information they need to make the specific health decision before them.
The takeaway: Do you want people you trust to support you in health care and personal care decision making when needed, or to make those decisions for you when you cannot? Would you want them to have access to your fulsome medical history to be able to make those decisions? If so, make a Representation Agreement (RA).
You don’t need a lawyer or notary to make an RA! Nidus offers free RA forms and information to help you do it yourself.