On July 1, 2019, Ontario’s Missing Persons Act came into force. Broadly speaking, the new legislation expands the tools available to police in investigating missing persons.
Certain provisions are directly relevant to healthcare organizations because they provide avenues through which police officers can make demands for records, including hospital records. As was always the case, police officers may obtain a Court order for records. The legislation, however, gives police officers the power to make an “urgent demand” for records, without an order, if the officer is satisfied that prescribed conditions are met (see below). The person or entity receiving the “urgent demand” must comply with the request as soon as possible.
Who is a Missing Person?
The legislation defines a missing person as someone whose whereabouts are unknown and a member of the police force is unable to locate the person after making reasonable efforts to do so.
The first criteria, unknown whereabouts, is satisfied when the person has not been in contact with people they are likely to be in contact with, or it is reasonable in the circumstances to fear for the person’s safety because of the circumstances surrounding their absence or because of another prescribed consideration.
Requests for Records
Police have two avenues for obtaining records in the context of a missing person, including records containing personal health information (PHI) as defined by the Personal Health Information Protection Act, 2004 (PHIPA)
1. Apply for an Order
An order may be granted by a Justice, which means a provincial judge or a justice of the peace. A Justice may grant an order for the production of records where the Justice is satisfied, on the basis of information provided by the police officer under oath, that there are reasonable grounds to believe that, (a) the records are in the custody or under control of the person or entity, and (b) the records will assist in locating a missing person.
The Ministry of the Solicitor General has approved a form for a police officer to provide the required information and a form for the order. These forms can be downloaded from the Ontario Government’s website, here and here.
The order shall only be issued if the Justice is of the opinion that the public interest in locating the missing person outweighs the privacy interest of any person whose information may be contained in a record specified in the order.
The Justice may also impose terms on the order, including specifying a timeframe for production of the records and requiring the production of a log detailing the efforts that have made to locate any records that cannot be found.
2. Urgent Demand for Records
A police officer may make an urgent demand in writing for production of records, if the officer is satisfied that there are reasonable grounds to believe the following:
- The records are in the custody or under the control of the person or entity;
- The records will assist in locating the missing person; and
- In the time required to obtain an order from a Justice,
- The missing person may be seriously harmed, or
- The records may be destroyed.
The Ministry of the Solicitor General has approved a form for the urgent demand. The form can be downloaded from the Ontario Government’s website here./p>
A police officer shall not make the urgent demand unless the officer is of the opinion that the public interest in locating the missing person outweighs the privacy interest of any person whose information may be contained in a record specified in the demand.
A police officer who makes an urgent demand must, within 30 calendar days, provide a written report to a designated member of the police force outlining the records specified in the demand, the reasons why the officer was of the view that the requirements for an urgent demand were met, and any other prescribed information. The form for this report can be downloaded here.
The police officer must also make reasonable efforts to notify the person whose information has been produced. This must be done as soon as practical, unless doing so would interfere with the police force’s ability to locate the missing person, pose a risk to any persons’ safety or interfere with a law enforcement matter or investigation. In those circumstances, the notice must be given at a time where it would not cause such an interference or pose such a risk.
Duty to Comply
The person or entity receiving an urgent demand from a police officer must, as soon as reasonably possible, produce copies of the records specified in the demand that are in their custody or control to the police force.
Where the police officer consents, the information contained in the record may be provided orally, instead of producing a copy of the record. This is also permitted when the demand is made by way of order issued by a Justice, again subject to the consent of a member of the police force.
Takeaway for Health-care Organizations
As custodians of medical records, health-care organizations will likely encounter requests made pursuant to this new legislation. It will be important for organizations to ensure the requests made are in the proper forms as designated by the Ministry in discharging their duty to comply, and that copies of the forms are obtained for the health record.
It is worth noting that currently under PHIPA there are a number of permissible disclosures, including section 40, under which a custodian may disclose if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons. Practically speaking, the Missing Persons Act does not change what organizations have likely already been doing in response to police requests; the legislation is helpful in that it provides a more formal and structured process for requests from police for health records in certain circumstances.