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Health Law Blog

Become a Doctor – Give up expectation of personal privacy!

June 14, 2011

In a decision of the Divisional Court of the Ontario Superior Court of Justice on January 14, 2011, the Court cautions the medical profession that it is "not unreasonable to expect doctors to have a very limited expectation of privacy when it comes to allowing their regulator to ensure that they are carrying out their practices in a manner that will not expose the public to risk. An individual chooses to become a doctor and in so doing accepts his or her activities will be supervised and monitored."

The Court made these findings in dismissing a Constitutional challenge by two Ontario physicians who objected to their personal computers being accessed and used by the College of Physicians and Surgeons of Ontario to pursue disciplinary investigations against them on potential professional misconduct charges.

The two physicians in question had been identified as subscribers to pornography sites by the Ontario Provincial Police in the context of an OPP electronic database investigation that was launched by the police in 2001. Although the seizure by the police of Dr. X's home was subsequently found to be unlawful and the OPP returned Dr. K’s hard drive to him, the mirror copy which they kept was ultimately provided by the OPP to the College.

The second physician Dr. Y was charged by the police with possession of child pornography when the police accidently came into possession of his personal laptop computer, which he had reported stolen. The police had no warrant to seize the computer and no warrant permitting examination of the hard drive. Nonetheless, the doctor was charged with possession of child pornography and the College became aware of these charges through an article published in the Toronto Sun. The College obtained the seized police materials in order to pursue an investigation for professional misconduct against Dr. Y.

In the Divisional Court's decision, the Court refused to find relevant sections of the Health Profession Procedural Code Unconstitutional, made the sweeping statement that any individual choosing to become a doctor must accept "his or her activities will be supervised and monitored". The "activities" the Court is referring to clearly encompass "activities" of a personal nature. The College of Physicians, Dentists, Nurses, Pharmacists and all health professionals will be wise to be cautious of their "computer activities" even in the privacy of their own homes.

*Leave to appeal to the Court of Appeal has been granted but unless and until this decision is reversed, it is the law of Ontario

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