The author comments on a Superior Court judgment overturning the defendant's decision and granting the deceased's spouse access to her medical record.
During a succession, an heir or liquidator may often find it necessary to access documents concerning the deceased. The facts in Roy c. CISSS de Chaudière-Appalaches1 are unusual, but provide a good explanation of the principles on access to medical records.
I – THE FACTS
Both the applicant and his deceased wife were Jehovah's Witnesses. The wife signed a form refusing any blood transfusion during the upcoming birth of their first child. The applicant was authorized to consent to or refuse any care, and to consult the medical record.
The delivery did not go well and the deceased had to undergo a hysterectomy. Despite several requests by the medical staff, the applicant refused to consent to a blood transfusion and the deceased died one week following the birth.
The media learned of the news, and a connection was made between the refusal to allow the transfusion and the death. A criminal charge was filed against the applicant and a coroner's inquiry opened.
This was the context in which the applicant requested access to the deceased's entire medical record. The request was denied and the applicant applied for a review before the Superior Court.
II – DECISION
First note that pursuant to section 27 of the Act respecting health services and social services (the "AHSSS"), the plaintiff was entitled to ask the Commission d'accès à l'information, the Court of Québec, or the Superior Court to review the decision.
The decision does not mention why the Superior Court was chosen, but the Commission d'accès à l'information may not have been chosen because of the backlog in processing times.
Given the options available to the applicant, the Superior Court concluded that the action was not a judicial review, but more similar to an action normally launched before the Commission d'accès à l'information (de novo).
The Court recalled the principle that medical records are confidential. Section 23 of the AHSSS, however, sets out an exception:
23. The heirs, legatees by particular title and legal representatives of a deceased user are entitled to be given communication of information contained in his record to the extent that such communication is necessary for the exercise of their rights in such capacity. The same applies to the person entitled to the payment of a benefit under an insurance policy on the life of the user or under a pension plan of the user.
The spouse, ascendants or direct descendants of a deceased user are entitled to be given communication of information relating to the cause of death of the user, unless the deceased user entered in writing in his record his refusal to grant such right of access.
The Court at the outset rejected the applicant's argument based on the consent form, namely because the form is interpreted as only applying while the deceased was alive.
The Court then recalled the three cumulative conditions required for exceptional access pursuant to section 23 of the AHSSS:
1. The request must be made by an heir or successor;
2. The request must be made in relation to such capacity;
3. The information requested must be necessary.
The first condition is satisfied: the applicant is the heir and liquidator under the will.
The Court analyzed the second condition in detail. Relying on the Supreme Court's decision in Frenette,2 the Court observed that access to documents in order to assess the chances of a successful action is [TRANSLATION] "an important (and sometimes essential) part of the exercise of the client's right".
It is important to reproduce paragraphs 47 to 50 of the decision in their entirety, where the Court invites health care institutions to facilitate the exercise of access rights:
 Something should be said about the interpretation of the exercise of a right, a concept that should simply be identified and justified.
 Ignoring for a moment the very specific facts of the case at bar, the Court believes that an heir who has lost his spouse after a very minor operation, for example, should be granted unobstructed access to the patient's medical record in order to discover the precise cause of death and determine if any action should be taken.
 Moreover, nowhere is it written that the exercise of a right by an heir must necessarily end in judicial proceedings being instituted. In the Court's opinion, the fact of wanting to shed light on the precise cause of death in exceptional circumstances, such as those in this matter, is itself the exercise of a right by a liquidator, who has a duty to fulfill his office with diligence.
 Last, remember that there can be no assessment or evaluation of the rights that the applicant intends to exercise at this stage of the proceedings. Some would say that Mr. Roy mortgaged any future action for medical liability by preventing the physicians from treating Ms. Dupuis as they wished, but this discussion has nothing to do with the issue under consideration. [References omitted]
The Court therefore agreed that the following justification was sufficient to justify access to the medical record in this case:
Further, as liquidator and sole heir to Ms. Dupuis' estate, the applicant wants to have Ms. Dupuis' medical record independently evaluated to determine each cause that contributed to her death, and to determine the recourse(s) available to the succession;
With respect to the third condition regarding the necessity of the information, the Court agreed that access to the medical record was necessary to evaluate the cause of death of the deceased.
It is also interesting to note that the Court agreed, in the alternative, that access to the medical record could be justified on the grounds of damage to the deceased's reputation, whether or not such right of action is well founded.
In conclusion, the Court ordered access to the medical record in its entirety from the time the deceased was admitted to the hospital until her death.
III – AUTHOR'S COMMENTARY
In 2011, I published an article entitled "Accessing Information on the Deceased".3 The article observed that the courts took a narrow approach when applying the provisions granting access to documents concerning a deceased person. This made it more difficult for various parties involved in a succession to exercise their rights.
I believe that this recent decision will relax this rigid approach and remind the different institutions, public bodies, and private enterprises to grant access to the deceased's documents so that rights may be exercised. This could reduce "preliminary proceedings" that only concern access to information.
The applicant, however, has the onus of clearly explaining the reasons for the request. In this case, the Court recognized that the institution correctly denied the initial request, because it was not sufficiently detailed.
This decision is important, because to my knowledge there was no other decision analyzing section 23 of the AHSSS in detail that would clearly define its scope.
In my opinion, the decision will have implications that extend beyond section 23 of the AHSSS. Public bodies4 and private enterprises5 are subject to similar provisions that should be interpreted in the same way.
In matters of succession, this decision is consistent with the decision in Houle,6 where the Superior Court granted access to an earlier will of the deceased based on preliminary allegations at the compulsory stage, so that the situation could be thoroughly analyzed thereby allowing the applicant to exercise his rights in an informed manner.
I believe that this decision correctly confirms that access to a deceased's medical record should be granted when necessary so that successors can exercise their rights. This issue often arises during discussions with health facilities in my daily practice, and this decision will be very useful in explaining the rules to follow, both when filling out and replying to the request for access.
It will be interesting to see if there will be any legislative changes in this respect. Indeed, the 2016 Quinquennial Report of the Commission d'accès à l'information entitled "Rétablir l'équilibre"7 contains the following recommendations to broaden access, in particular on compassionate grounds.
13- Like the laws of the other Canadian provinces, adjust the protection of personal information during access to information requests so that information can be communicated where its disclosure does not unreasonably invade the privacy of others.
14- Define the criteria to be considered during such an assessment. 15- Describe situations where disclosure is presumed to be an unreasonable invasion and those where it is not.
16- Include disclosure of information to family members of the deceased on compassionate grounds among the situations that are not presumed to be an unreasonable invasion of privacy.
1 EYB 2017-282375 (S.C.).
2 Frenette v. Metropolitan Life Insurance Co.,  1 S.C.R. 647.
3 Liquidation des successions : variations sur un thème, Vol. 11, 2011, Éditions Yvon Blais.
4 S. 88.1 of the Act respecting access to documents held by public bodies and the protection of personal information, CQLR c. A-2.1.
5 S. 41 of the Act respecting the protection of personal information in the private sector, CQLR c. P-39.1.
6 Poliquin c. Houle, 2015 QCCS 2612.
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