In general ‘consent is a very important facet of Privacy laws and under PHIPA consent is discussed from section 18 to 28. Now in this article we will discuss consent under following heads-
1) Essentials of Consent: the provisions under PHIPA require the consent of an individual for the collection, use or disclosure of personal health information by a health information Custodian.
- It mandates that the consent must be a consent of an individual, (means a physical human body and not of any artificial entity).
- The consent must be knowledgeable, it means an individual giving consent must know what he/she is consenting to/for. Section 18(5) puts more light to this by providing further clarification here and states that the consent of an individual is knowledgeable if it is reasonable in the circumstances to believe that the individual knows the purpose of the collection, use or disclosure and he/she knows that he/she can withhold the same.
- The consent must be related to the information, it means that the consent should be with respect to the information and nothing else.
- The consent must not be obtained through deception or coercion, this is very important to note that if the consent is taken by accepting an illegitimate mode it will render such consent as no consent and have potential to bring penalties for such deception or coercion.
2) Implied Consent: the consent under PHIPA can be expressed or implied. Implied consent is usually obtained by an Individual’s actions, facts & circumstances.
Although, implied consent is accepted under PHIPA but u/s.18(3) there is a situation under which only expressed consent is valid and mandated to obtained and such situation is –
- An information about which a custodian is to make disclosure to a person is not personal health information.
- An information about which a custodian is to make disclosure is not for the purposes of providing health care or assisting in providing health care.
The above two situations form an exception under which only express consent is required and not Implied.
PHIPA clarifies that once the consent is obtained as per the provisions of these sections it is valid consent and in case if an Individual is willing to withdraw its consent he/she may do so by providing a notice to health information custodian but such consent strictly shall not have a retrospective effect it means it shall have a prospective effect.
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