In Logan v. Hong, the British Columbia Court of Appeal considered whether third party doctors across Canada were required to provide plaintiff’s counsel with the names and contact information of patients the doctors had injected with defendants’ product.  Class counsel argued this was necessary to ensure potential members of the class were notified so that they could exercise their rights to opt-in or opt-out of the class.  The British Columbia Court of Appeal disagreed and held that the order compelling the production of the information was an unwarranted invasion of the physician patient relationship.

The Court’s Decision

The Court of Appeal found that as laudable as the plaintiff’s intention might be to seek redress for class members, it did not justify an invasion of the privacy inherent in the physician-patient relationship.  A patient’s privacy rights trumped the right to access in the class proceeding, with the Court finding that “[e]ach patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest.”

The order that was being appealed from required the disclosure of the fact of a particular medical treatment, in addition to the address and contact information, which the Court agreed might be something that an individual patient would not wish to broadcast.  While the treatment in question was only cosmetic, the applicable principle relevant to the analysis protected patients in any situation, just as it would were the treatment for other more personal medical conditions.

The Court accepted that there is a “special place of confidentiality” in the physician-patient relationship, which is long standing, accepted in the relevant case law and reflected in the Code of Ethics of the Canadian Medical Association under the heading Fundamental Responsibilities.  In concluding that privacy trumped access, the Court stated that “giving full weight to the principle of privacy and confidentiality inherent in the physician-patient relationship, the limited circumstances that call for breaching the patients’ privacy are not present here.”

The Court’s decision confirms the importance of the confidential physician-patient relationship, and clearly signals that absent serious concerns relating to health or safety, or an express legislative provision, the confidential nature of the relationship will not be interfered with.