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New Brunswick: OAIPC releases guidance on implied consent and use of health information

The Office of the Access to Information and Privacy Commissioner ('OAIPC') issued, on 23 August 2017, guidance on the use and sharing of health information by healthcare providers on the basis of implied consent ('the Guidance'). The Guidance notes that although healthcare providers use the 'circle of care' concept 'as permission to use personal health information without first ensuring that consent exists,' the Personal Health Information Privacy and Access Act 2009 ('the Act') does not define circle of care, but instead provides a series of instances where implied consent can be used to pursue additional care or treatment for the individual without their consent.

The Guidance further explains that under the Act there are three essential elements that must be present for a healthcare provider to 'correctly assume' they have the individual's implied consent. The first is to have obtained 'knowledgeable' consent from the individual, the second is for the use or sharing of the information to be related to the purpose for which the knowledgeable consent was originally obtained, and the third is for it to be reasonable for the healthcare provider to infer that the individual's consent would 'continue' to include the circumstances under which the particular use or sharing is occuring. The Guidance also provides example scenarios to illustrate when it is reasonable for healthcare providers to rely upon implied consent.

You can read the Guidance here.