PRIVACY VS A TOBACCO FIRM                                               

The right to one’s privacy is paramount in all democratic nations and this applies also in Canada.

The province of British Columbia has insisted that tobacco firms should be compelled to help pay the cost of treating smoking-related diseases. That makes sense considering that the tobacco firms have directly caused lung disease in millions of smokers world-wide.

The tobacco company, Philip Morris International, says that if they have to pay money to the province to fight lung disease caused by smokers smoking their tobacco, then they should have access to all the medical records of smoking patients suffering from lung disease caused by smoking their tobacco.

Needless to say, that would be a terrible invasion of privacy of every patient whose medical records ended up in the hands of a tobacco firm. Once in their hands, it is conceivable that they could also end up in the hands of insurance companies and even employers.  This issue finally ended up in the Supreme Court of Canada.

The province of British Columbia brought an action against Philip Morris International and other tobacco manufacturers to recover the cost of health care benefits related to disease caused or contributed to by exposure to a tobacco product, pursuant to the Tobacco Damages and Health Care Costs Recovery Act.

The  province sued Philip Morris to recover the cost of health care benefits on an aggregate basis, that is, for a population of insured persons, section 2(5)(b) of the Act governs the compellability of health care documents and provides that “the health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits for particular individual insured persons are not compellable”. Philip Morris and others applied for production of a collection of health care databases containing coded health care information which the province intended to use to prove causation and damages in its action, on the basis that access to those databases was critical to its ability to defend itself and that production was not barred by s. 2(5)(b). The application judge found that the databases were compellable, since, once the information contained in the databases was anonymized, section 2(5)(b) did not apply. The Court of Appeal dismissed the province’s appeal. Hence the matter ended up in the Supreme Court of Canada.

The databases at issue in this case are both “records” and “documents” within the meaning of the Act. They store the health care information of particular individual insured persons. And, while that information is stored on an aggregate rather than individual basis, each data entry in the databases is derived from particular individuals’ clinical records.  

  The phrase “particular individual insured persons” in section 2(5)(b) is not synonymous with “identifiable individual insured persons”. The ordinary meaning of the word “particular” is “distinct” or “specific”. Based on this definition, the databases fall within section  2(5)(b)’s scope as comprising the “health care records and documents of” and the “documents relating to the provision of health care benefits for” each distinct and specific individual in British Columbia, even if, once anonymized, the information contained within the databases is no longer capable of identifying an individual insured person. In addition, equating “particular” with “identifiable” would be inconsistent with the Act’s scheme and would render other provisions in the Act redundant or nonsensical.

Justice Brown of the Supreme Court writing for the majority said,    “I would respectfully disagree. The databases constitute “health care records and documents of particular individual insured persons or documents relating to the provision of health care benefits for particular individual insured persons” and are therefore not compellable. Neither their relevance to the pleadings in the Province’s action nor their anonymization insulate them from the text of section 2(5)(b), read in its entire context and in its grammatical and ordinary sense, in harmony with the Act’s scheme and object.  I would therefore allow the appeal.” (of the government)   

 On January 24, 2001, the Province sued Philip Morris and other tobacco manufacturers to recover the cost of health care benefits on an aggregate basis. Immediately, certain defendants including

Philip Morris challenged the constitutionality of the Act, arguing that it (1) exceeds territorial limits on provincial legislative jurisdiction; (2) violates the principle of judicial independence; and (3) infringes the rule of law. As already recounted, this Court rejected those arguments in Imperial Tobacco and affirmed the Act’s constitutionality.

Philip Morris then applied for production of a collection of health care databases containing coded health care information which the Province says it intends to use for the purpose of proving causation and damages in this action. Philip Morris insisted that access to those databases was critical to its ability to defend itself. The databases sought in this application include the following:

The Discharge Abstract Database which contains data on hospital discharges, transfers and deaths of in-patients and day surgery patients in the province and includes clinical, administrative and demographic data.

The Medical Services Plan Database which contains data on all payments made under the province’s Medical Services Plan for professional medical services, including physician, laboratory and diagnostic services;

The PharmaCare Database which contains data on prescriptions for insured persons, including the date upon which each prescription is filled, the drug number and quantity dispensed, the days of treatment, and the identity of the prescribing practitioner;

     

The Client Registry which is the central administrative repository for individuals who have used a service provided by the Ministry of Health in the province and is the control point for issuing new personal health numbers.

The Registration and Premium Billing file contains data on the eligibility for coverage for persons under the Medical Services Plan.

The Province countered the defendant’s argument that by stating that the data contained within the databases sought was derived from, or formed part of, the “health care records and documents of particular individual insured persons” and the “documents relating to the provision of health care benefits for particular individual insured persons” within the meaning of section  2(5)(b) and were, as such, not compellable.

As an alternative, the Province offered Philip Morris and the other defendants access to the information stored within the databases through an agreement with Statistics Canada. That agreement would have permitted Philip Morris’s experts to view the databases while at a Statistics Canada Research Data Centre.

While other defendants accepted this arrangement, Philip Morris declined because it would not allow for unfettered access to the databases and would also require the waiver of litigation privilege.

Throughout, Philip Morris has maintained that the Province must produce the databases, and that such production is not barred by section 2(5)(b).

The Court of Appeal explained that one of the main objects of the Act was to establish the “playing field” for tobacco litigation and that it “cannot have been the intention of the Legislature for the playing field to be tipped unfairly in the Province’s favour” Like the application judge, it found that, by operation of section 2(5)(b), the clinical records of particular individual insured persons are not relevant where the Province proceeds on an aggregate basis. While the information contained in the databases may be drawn from clinical records, the Court of Appeal agreed that the databases are of a “very different character ” The databases, unlike individual clinical records, are “highly relevant” where the Province proceeds on an aggregate basis, and restricting their compellability would therefore be “inherently unfair”: para. 37. The Court of Appeal likened the Province’s interpretation, which would protect the databases under section  2(5)(b), to a reading-out of the phrase “particular individual”, effectively making “no data about health care costs discoverable in its multi-billion dollar claim for health care costs”  It held that once the databases are anonymized as ordered by the application judge, the production of the anonymized (which the patient cannot be identified by the recipient of the information) databases “poses no realistic threat to personal privacy,” Trial fairness therefore required the databases to be produced.

Statutory interpretation entails discerning legislative intent by examining the words of a statute in their entire context and in their grammatical and ordinary sense, in harmony with the statute’s scheme and object.

 As to the statute’s object, the purpose of the Act is to grant the Province a civil cause of action through which it may recover the cost of health care benefits arising from tobacco related disease, To achieve this purpose, the Act prescribes various procedural rules, including that contained in section 2(5)(b) which governs the compellability of certain evidence where the Province proceeds on an aggregate basis.

The text of section 2(5)(b) states that the “health care records and documents of particular individual insured persons or the documents relating to the provision of health care benefits for particular individual insured persons” are not compellable, except as required by a rule of law, practice or procedure when such documents are relied upon by an expert witness. There is no suggestion that these proceedings have reached the point at which production would be required as a consequence of expert reliance. The central question to be decided in this appeal is, therefore, whether the courts below were correct to find that the databases, once anonymized, did not qualify as “health care records and documents of particular individual insured persons” or “documents relating to the provision of health care benefits for particular individual insured persons” and were therefore compellable.

 The finding of the Court of Appeal that the databases were not protected by section 2(5)(b) is, in my respectful view, marked by three errors. First, they failed to examine the full scope of the documents and records that are protected by s. 2(5)(b). Secondly, they permitted the relevance of the databases, where the Province proceeds on an aggregate basis, to supplant the text of section 2(5)(b). And finally, they treated the phrase “particular individual insured persons” as synonymous with  “identifiable  individual insured persons”.

So it is understood, that both “records” and “documents” are means of storing information.  And, from these definitions, it is readily apparent that the databases (including the Discharge Abstract Database, the Medical Services Plan Database, the PharmaCare Database, the Client Registry and the Registration and Premium Billing file are both “records” and “documents” within the meaning of the Act. Each database is a collection of health care information derived from original records or documents which relate to particular individual insured persons. That information is stored in the databases by being sorted into rows, each of which pertains to a particular individual and columns each of which contains information about the field or characteristic that is being recorded, such as the type of medical service provided.

 Further, careful examination of section 2(5)(b) confirms that the databases fall within its scope. Section 2(5)(b) protects two types of records and documents. First, it protects the “health care records and documents of particular individual insured persons”. This is the category of records and documents which the courts below found were comprised of individual clinical records prepared at the time of treatment. Much of the information stored within the databases are for example, the type of medical service provided, the level of patient care provided while in hospital, and the length of hospital stay which appears to have been drawn directly from individuals’ clinical records. The databases are therefore, at least in part, collections of health care information taken from individuals’ clinical records and stored in an aggregate form alongside the same information drawn from the records of others.

Justice Brown said, “Unlike the courts below, however, I would reject Philip Morris’ submission that simply because the databases, due to their aggregate nature, may be of a “very different character” than original clinical records, they must therefore fall outside of the protective scope of section  2(5)(b).  As already shown, the databases are both “records” and “documents” within the meaning of the Act. They store the health care information of particular individual insured persons. And, while that information is stored on an aggregate rather than individual basis, each data entry in the databases is derived from particular individuals’ clinical records. The mere alteration of the method by which that health care information is stored that is, by compiling it from individual clinical records into aggregate databases which does not change the nature of the information itself. Even in an aggregate form, the databases, to the extent that they contain information drawn from individuals’ clinical records, remain “health care records and documents of particular individual insured persons”.

    Philip Morris also argued that, even if the databases constitute “health care records and documents” or “documents relating to the provision of health care benefits”, they still fall outside the scope of s. 2(5)(b) as they are neither “health care records and documents of particular individual insured persons”, nor “documents relating to the provision of health care benefits for particular individual insured persons”. The argument is that a “particular individual” must mean an “identifiable individual. And (the argument continues) once the information contained within the databases is anonymized (as the application judge ordered), the databases must fall outside of the scope of section 2(5)(b) since the anonymized information is no longer capable of identifying an individual insured person.  This was also the conclusion of the courts below.

 Such an interpretation would, however, be inconsistent with the Act’s scheme. For example, equating “particular” with “identifiable” would render sections 2(5)(d) and 2(5)(e) redundant. Section 2(5)(d) allows for a defendant to apply to court to obtain discovery of a statistically meaningful sample of the documents otherwise protected by section 2(5)(b). Section 2(5)(e) provides that, where a production order is made under s. 2(5)(d), the sample documents must be anonymized. But were it possible, as Philip Morris posits, to compel the production of records and documents that would otherwise be caught by section  2(5)(b) by simply anonymizing them, no party would ever have to resort to applying under sections 2(5)(d) and 2(5)(e) for discovery of a statistically meaningful sample of such records or documents. Bearing in mind that those provisions apply only where the Province is claiming “on an aggregate basis, for a population of insured persons” (s.ection 2(4)(b)), those provisions would be meaningless. And yet, it is a “well-accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere excessive or nonessential matter.

Justice Brown writing for the other justices of the Supreme Court ruled as follows;

 It follows from the foregoing that I agree with the Province that the databases constitute “health care records and documents of particular individual insured persons or documents relating to the provision of health care benefits for particular individual insured persons”. As such, by operation of section 2(5)(b) the databases are not compellable. To be clear, the databases will be compellable once “relied on by an expert witness”: section. 2(5)(b). A “statistically meaningful sample” of the databases, once anonymized, may also be compelled on a successful application under sections. 2(5)(d) and 2(5)(e).

I would therefore allow the appeal, with costs in this Court and in the courts below, set aside the order of the application judge, and dismiss the application of Philip Morris for an order requiring production of the health care databases.

The medical privacy of those persons whose medical records are therefore sealed and not available to tobacco firms is assurance that privacy is still paramount in Canada.