Treating Experts Cannot Meet with Insurer To Prepare to Give Evidence at a Hearing: by Nathan Fabiano

Nov 18, 2019

Background
On April 24, 2004, the plaintiff was seriously injured in a motorcycle accident. Primmum was his accident benefits insurer. 

On December 20, 2010, the plaintiff applied for a determination that he was catastrophically impaired as a result of the accident. Primmum initially denied his application, but then conceded that the plaintiff met the statutory criteria for catastrophic impairment and was therefore eligible to receive CAT benefits. To establish the existence of the plaintiff’s catastrophic impairment since the accident and his need for benefits from the date of loss and forward, the plaintiff relied on a retrospective Form 1 reports prepared by the plaintiff’s current treating occupational therapist. 

In support of its contention that the plaintiff was not eligible for any additional benefits for the period between April 24, 2004 and December 20, 2010, Primmum relied on Form 1 reports by three different treating occupational therapists who Primmum also engaged to assess the plaintiff’s needs concurrent to events as they were recorded between April 2004 and December 2005. Each prepared assessments of his ability to perform the activities of daily living at the time of their involvement, at Primmum’s request pursuant to the section 42 IE rights, separate and apart from their role as treating OTs.  These Form 1 reports differed from the views of the OT who did the retroactive Form 1 assessment relied upon by the plaintiff for trial. 

Issue:
At the trial management conference held the day before the trial of this dispute was to commence in Ottawa, Primmum advised that it wished to speak to the three occupational therapists to prepare them for their testimony. Plaintiff counsel took the position that defense counsel could not communicate with these occupational therapists because they were Mr. Roy’s treating occupational therapists. 

Despite the general rule that there is no property in a witness, Ontario courts have long recognized that special rules apply where counsel for one party seeks to interview a physician who treated another party. 

In Burgess (Litigation guardian of) v. Wu, [2003] O.J. No. 4826, Justice Ferguson identified the rules concerning access to confidential medical information outside the courtroom, which can be summarized as follows:

1.    Unless the patient consents, counsel for another party may not have any communication at all with the patient’s health care professionals concerning the patient. A patient’s health care professionals have a corresponding duty to refuse to disclose information about their patient unless required to do so by law. 
2.    In the absence of consent, access to confidential medical information before trial can be obtained in only two ways: (a) by obtaining pre-trial discovery pursuant to the rules of the court, notably rule 31.10, or (b) by seeking a special disclosure order from a judge exercising inherent jurisdiction.
3.    Even where access is permitted, the person under a duty of confidentiality cannot be asked for opinions beyond those formed during treatment of the patient unless this is specifically consented to or ordered. 


The rules set out in Burgess (Litigation guardian of) v. Wu have been consistently applied by Ontario courts where counsel has sought authorization for pre-trial communications with treating health care providers. 


Primmum did not suggest that these rules are inapplicable where the health practitioner involved is an occupational therapist, as opposed to a physician. It argued that they should be free to communicate with the three occupational therapists about their proposed evidence. 

A motion was brought to deal with this issue.

At the motion, Primmum advanced two arguments in favour of it’s position. 

Argument 1: The Duty of Confidentiality Does Not Apply
The first argument was that the duty of confidentiality recognized in Burgess (Litigation guardian of) v. Wu does not apply, because the occupational therapists are merely being called to testify about what they observed during their earlier assessments. Primmum argued that by participating in the section 42 insurer examination process and signing consents, the plaintiff waived his right to object to the disclosure of confidential information by the occupational therapists.

Primmum argued that, in at least one other case, counsel for the defendant insurer was authorized to meet with section 42 assessors to prepare them prior to calling them to the stand (see Lacroix v. Federation Insurance Co. of Canada, 2014 ONSC 6002 (CanLii)).

Justice Gomery did not accept this argument.

Justice Gomery stated that the three occupational therapists played dual roles. On one hand, they provided therapeutic services to the plaintiff, and assisted him by completing Form 1s so he could get funding for attendant care. On the other hand, two of the three occupational therapists were also retained, on several occasions, to perform section 42 assessments for the insurer.

Justice Gomery stated that the dual role played by the occupational therapists does not give the plaintiff fewer rights, nor does it give the insurer greater rights. This treatment relationship gave rise to a patient/health practitioner relationship, where confidential information is provided by the patient with the expectation that it will be kept confidential. 

Justice Gomery ruled that Primmium’s decision to retain treating occupational therapists as section 42 assessors cannot and does not imply that the patient suddenly loses the protection that the law otherwise extends with respect to the relationship between patients and health care professionals.

Although the plaintiff was required, under section 42 of the Statutory Accident Benefits Schedule (“SABS”), to attend assessments reasonably required by his insurer, Justice Gomery ruled that in doing so he was not required to waive his right to the confidentiality with his treating health practitioners, nor can such waiver be implied.

Justice Gomery concluded that by participating in the section 42 assessments, the plaintiff did not waive his right to confidentiality with respect to information they obtained during such assessments.

Argument 2: The Plaintiff Consented To Disclosure
The plaintiff signed three types of consents: a consent to a treatment plan, a consent to an evaluation, and a permission to report medical and employment information (which is, in essence, an authorization form).

The consents to a treatment plan all said that the plaintiff consents to the collection and disclosure of information in compliance with the Personal Information Protection and Electronic Documents Act (“PIPEDA”), and that a report on his progress would be completed by the Occupational therapists.

Primmum argued that the plaintiff agreed to disclosure of information by his treating therapists through executing written consents. Primmium argued that this meant that the plaintiff waived any objection to pre-trial communications between them and defence counsel in the event of a lawsuit.

Justice Gomery ruled that this argument was unsuccessful for two reasons. First, this argument only applied to disclosure with two of the three occupational therapists, as a written consent had not been produced with one of the occupational therapists. Second, the written consents were limited in scope. They did not permit Primmum to obtain information from the occupational therapists beyond the assessment reports they prepared, they were limited in time, and they were revocable. 

The consents to an evaluation largely reproduced the terms of the consents to treatment. Only one of these consents explicitly mentioned section 42. However, for one of the occupational therapists, the consent did not state that their report would be disclosed to anyone, and there was no reference to Primmum or to any other form that might identify Primmum. 

The plaintiff signed two authorization forms. The first authorization form provided that the plaintiff consented to the disclosure of one of the occupational therapists’ report to all of the parties listed on the authorization form. Primmum was not specifically mentioned on either form. The authorized disclosure was limited to only one of the three occupational therapists’ reports.

The second authorization provided that the plaintiff consented to the transmission of information by Primmum, his family physician, his physiotherapist, and the Ottawa Civil Hospital to one of the occupational therapists. This authorization also provided that the plaintiff consented to the disclosure of all this information to Primmum or any other agency, institution or individual involved in the plaintiff’s rehabilitation program. 

Primmum urged Justice Gomery to take a holistic, rather than technical view of the consents and authorizations. Justice Gomery found that in doing so, Primmum effectively conceded that the forms did not explicitly provide for communication between the occupational therapists and Primmum beyond transmission of written reports. 

Justice Gomery ruled that neither of the authorizations explicitly permitted the occupational therapists to disclose information to Primmum.

Conclusion
Justice Gomery ruled that defence counsel was not asking for the right to examine the occupational therapists, but rather was seeking to engage in off-the-record discussions with them. He stated that our law protects the confidentiality of the relationship between individuals and treating health professionals, even where this relationship limits a defendant in a lawsuit from engaging in otherwise standard witness preparation. 

Citing Flynn v. Wijay, 2004 CanLii 16485 (ON SC), Justice Gomery ruled that even though the defendant maintained that he was not seeking confidential information, it is the confidentiality of the relationship that must be respected. He also ruled that a defendant’s natural desire to ensure that witnesses will say what they expect (or want) them to say is not a justification for authorizing unsupervised access to the information gained during that relationship. 

Justice Gomery concluded that the plaintiff did not consent to the communication of information by the occupational therapists and Primmum, beyond the sharing of any written reports. 

The defendant’s motion was accordingly dismissed. 

Takeaway
This case demonstrates that the act of an insured participating in section 42 assessments under the SABS does not, in and of itself, waive confidentiality between the assessors and the insurer where that assessor has a concurrent treating role. Where an insurer may think it is being scrupulously fair in asking a treating OT who best knows the claimant’s function and limitations to do a Form 1 assessment, rather than retaining a stranger to the file to do so, the insurer may be hamstrung from relying on that assessor’s opinion later on if it is unable to meet with the assessor to prepare them to give evidence at any subsequent hearing.

Nathan Fabiano is the author of this blog and a student-at-law at the firm. If you have a question about this blog or a similar file, please contact Nathan at 416-777-2811 ex 7975

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