In preparation for Ontario's provincial general election on June 12, 2014, health industry clients may be receiving requests from Elections Ontario to disclose patient/resident lists in order to update the province's permanent register of electors or to set up polling places on the premises. This Communiqué is intended to provide some assistance to health industry organizations in responding to these requests in the upcoming weeks.
Disclosing Personal Health Information to Elections Ontario
Requests from Elections Ontario to disclose patient/resident information in order to update the register of electors may include a request to disclose the name, date of birth, room number and the location of the individual in the facility. Sharing this information with Elections Ontario would be considered a "disclosure" of personal health information ("PHI") under the Personal Health Information Protection Act ("PHIPA").
Pursuant to PHIPA, PHI relating to individuals may only be disclosed with an individual's consent when the disclosure is necessary for a lawful purpose, or as permitted or required under PHIPA. Subsection 43(1)(h) of PHIPA provides that a health information custodian ("HIC") may (is permitted to) disclose PHI about an individual, where another law of Ontario or Canada permits or requires the disclosure.
The statutory authority for HICs to disclose PHI to Elections Ontario is found under paragraph 2 of subsection 17.1(4) of the Election Act which provides that the Chief Executive Officer ("CEO") may obtain information from "any source that he or she considers reliable" [emphasis added] to establish and maintain a permanent register of electors. It is our view that "any source" would include hospitals, long-term care homes and retirement homes. It is important to note that this section is permissive and allows the health facility to disclose this information to Elections Ontario, but there is no mandatory requirement to disclose.
Given the purpose of the request to ensure that individuals receiving care in health facilities on polling day have a right to vote, it is our view that organizations should comply with these requests if at all possible. Taking into consideration the limited scope of PHI that is being requested and provided, the risk to the organization in our opinion is minimal, for most health industry client populations. Organizations that decide to disclose information to Elections Ontario should limit the information that is shared to that which is reasonably necessary to meet the purpose of the disclosure.
There are nevertheless additional measures that health industry organizations can take to minimize any potential risk. With respect to the preparation of patient/resident listings, we recommend that organizations post notices and/or provide a handout to patients/residents or where appropriate, his or her substitute-decision makers regarding the request from Elections Ontario and the planned disclosure. Individuals should be provided with the opportunity to discuss any questions or concerns they may have prior to disclosing the information. Alternatively, although not required, the organization may wish to obtain the individual's written or verbal consent to the disclosure. The individual may decide that they do not want their PHI to be disclosed.
Voting by Residents and Patients
Health industry organizations may also be asked by Elections Ontario to set up a polling place on the premises on polling day and/or permit election officials to go room-to-room to collect ballots from individuals who are unable to go to a polling place to cast his or her ballot.
The Election Act sets out the processes by which individuals who reside in an "institution" (as defined in the Act) during the time of the election are able to vote on polling day. Section 14 provides that a polling place will be located either in or on the premises of the following institutions when they are located in an electoral district:
- an institution for the reception, treatment or vocational training of persons who have served or are serving in the Canadian Forces or who are disabled,
- a hospital,
- a psychiatric facility,
- a long-term care home or
- other institution of twenty beds or more, in which chronically ill or infirm persons reside; or
- a retirement home with fifty beds or more.
An individual that is entitled to vote in the election, who resides at one of the above mentioned institutions and is entered in the list of electors, may vote at the polling place in the institution in which they reside. Arrangements will be made with the institutions for the deputy returning officer and the poll clerk to receive ballots from all electors. This may include attending at a patient or resident's bedside. After all of the individuals entitled to vote at the institution have been canvassed, the election officials are permitted to continue the poll in one location of the institution, until all patients/resident electors have been given the opportunity to vote.
Where a number of institutions are located within the same electoral district, the CEO may direct that voting occur via a mobile poll, rather than individual polling places set up at each institution. When this occurs, the institutions and electors will be notified in advance of the details of the mobile poll (i.e. which institutions will be served by a mobile poll, time period during which the mobile poll will be available at each institution).
We recommend that health industry clients work with election officials in advance of polling day to set up a system to receive ballots other than room-to-room collection wherever possible, where there are concerns regarding patient privacy and infection control. Options may include setting up a polling place in a common area of the facility for patients/residents who are able to leave his or her room to vote.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.