SABS Privacy Consent Scores

Does the privacy consent on the last page of Ontario’s prescribed Application for Accident Benefits (OCF-1) form hold water?

In Economical v. Fairview Assessment Centre, the insurer claimed fraud and misrepresentation against an assessment centre and various (alleged) treatment providers associated with the clinic (more information about the case’s background is available here). In the action, the insurer sought production of medical documentation containing personal health information of certain non-party SABS claimants.

The defendants resisted producing the medical information, arguing that the various non-party claimants had not given their consent to produce the personal health information to the insurer in the context of an action, in which their medical documentation may become part of a public record. The insurer argued, among other things, that the claimants had given their consent to disclose the information when they applied for accident benefits.

By way of background, all accident benefits claimants must complete and submit to the insurer an Application for Accident Benefits (OCF-1). The OCF-1 is a prescribed form that is approved by the Superintendent of Insurance. The form has gone through a number of revisions over the years (the most recent revision goes into effect on June 1, 2016). For our purposes, the last section of the OCF-1 (now Part 11 but previously Part 12) is where the claimant certifies that the information in the application is true. The section also contains a consent for the collection, use, and disclosure of the claimant’s personal information:

I UNDERSTAND that you, and persons acting for you, will collect and use personal information and personal health information about me that is related to my claims for accident benefits arising out of the accident described in this application, and that all such information will be collected directly from me, or from any other person with my consent.

I ALSO UNDERSTAND that this information will be collected and used only as reasonably necessary for the purposes of …

*            Preventing fraud, and detecting fraud where there are reasonable grounds to suspect fraud

By signing the form, the claimant also acknowledges that their personal information may be disclosed to others without their knowledge or consent.

In Economical, the defendants argued that because the consent at Part 12 does not specifically refer to disclosure in the context of civil litigation in a public forum in which the claimants are non-parties, they have not provided informed consent.

The Master disagreed, finding that the consent was “sufficiently broad” to encompass disclosure within the context of the present action:

In this action the plaintiffs allege, inter alia, that the defendants conspired to defraud the plaintiffs by submitting medical assessment reports purportedly authored by physicians when they were not so authored, submitted assessment reports and treatment plans purportedly authorized by physicians that were not so authorized and submitted invoices for medical services that were not in fact performed for the SABs claimants. The plaintiffs claim damages as a result of the alleged fraudulent claims. In their counterclaim the moving defendants Fairview and Pacific claim damages for services performed and devices provided that have not been paid. The provisions of Part 12 of the OCF-1 concerning fraud and recovery of payment from others liable in law are applicable.

This decision adds some teeth to the privacy consent that insurers receive very early in the claim. I’ve been involved in many cases where insurers are reluctant to produce any personal information in their accident benefits files without obtaining another consent from the claimant, which can be often difficult to obtain. Hopefully this case will provide some comfort to worried insurers.

That said, insurers must always make sure that they are collecting, using, and disclosing any personal (health) information pursuant to the terms and scope of the consent.

Finally, this is a good time to remind all insurers of the new investigation and disclosure tools that the Digital Privacy Act provides (see Digital Privacy Act Brings Hurrahs, Headaches to Insurers).

See Economical v. Fairview Assessment Centre, 2016 ONSC 3169 (CanLII)