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Deemed Consent in HIPA – What is it?

December 28, 2016 - Melanie Coyle, Analyst

We have received a lot of positive feedback on our IPC Guide to HIPA resource. Thanks for your input!

At the same time, some people have expressed concern over our definition of deemed consent. We have since updated the Guide and our definition of deemed consent. We also thought it would be a good opportunity to discuss what deemed consent means.

Subsection 27(2) of The Health Information Protection Act (HIPA) allows a trustee, in certain circumstances, to consider that an individual has “deemed” to have consented to a collection, use or disclosure of personal health information. This is known as “deemed consent”.

In the past we defined deemed consent simply as “no consent”.

Some of the feedback we received indicated that this definition made it appear as though trustees could not rely on deemed consent.

Our office recognizes subsection 27(2) of HIPA and that trustees may choose to rely on deemed consent in some circumstances.

However, deemed consent really means that the subject individual has given no signal that he/she has consented to the collection, use or disclosure of personal health information. Further, he/she has no mechanism to opt-out of the collection, use or disclosure of personal health information. In reality, they have not given consent.

I also note that section 6 of HIPA, which defines consent, addresses only express and implied consent. It does not recognize deemed consent at that point.

For clarification’s sake, the IPC Guide to HIPA now says that deemed consent means a trustee can forgo express or implied consent in certain circumstances, such as when an individual is unable to give consent, is unconscious or in emergent circumstances described in subsection 27(2) of HIPA.

I hope trustees keep in mind that – with deemed consent – the subject individual has not consented to a collection, use or disclosure of personal health information and that they rely on it only when absolutely necessary.

For more information about the types of consent, see the IPC Guide to HIPA, specifically page 20 for diagram on types of consent.

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