By Terry McQuay, CIPP, CIPP/C

Student Privacy Comes into Question

The recent apparent suicide death of a Canadian university student in Ontario has fuelled the debate concerning challenges universities face in providing health services to students while also protecting students' privacy rights.

The student's parents were upset that the university had only informed them that their daughter had been seeing a campus doctor and counsellor, and that she had been taking anti-depressants, after she went missing.

University officials stated they had followed procedures and that they could not inform the student's parents about her mental health because of the province's privacy laws.
A number of provincial Privacy Commissioners contributed to this debate by:

• stating that universities need to have a clearer understanding of what privacy laws allow; and
• cautioning that too often privacy laws are the automatic target of blame when controversy arises.

Ontario's Privacy Commissioner Ann Cavoukian stated that:

• determining whether a situation requires disclosure is a judgment call, though the law offers protection as long as the decision maker acted in good faith; and
• university officials have to take the time to make the difficult decision and should not rely on privacy laws as the default reason for not disclosing personal information.

Saskatchewan's Privacy Commissioner, Gary Dickson:

• agreed there is a significant need for more education about the flexibility that is built into privacy laws; and
• stated that there must be people with appropriate training and judgment who can make the discretionary decision.

Alberta's Privacy Commissioner, Frank Work:

•     stated that in almost every privacy law, the standard is always reasonableness, not perfection.

In letters to the editors of the National Post, Globe and Mail and Toronto Star, Ann Cavoukian stated that:

• privacy is not an absolute right and must be balanced against an individual's physical safety;
• under Ontario's health privacy law, health care providers, such as counsellors, are permitted to disclose health information where necessary to eliminate or reduce a significant risk of serious bodily harm, which:

          o  includes disclosure to a physician or parent if there are reasonable grounds to believe it is necessary to do so to reduce the risk of suicide.

• notification cannot be on a routine basis as students need to know that their privacy will be strongly protected:

          o disclosure can only be contemplated in extreme life-threatening situations.

• arriving at the decision to notify can be extremely difficult, requiring very sound judgment:

          o great care must be exercised in notifying close contacts;
          o the problem lies with the default of non-disclosure and inaction.

Dr. Cavoukian noted that her office discusses this subject matter in a fact sheet, available on the OPC's Web site, titled "Disclosure of Information Permitted in Emergency or other Urgent Circumstances."

Terry McQuay, CIPP, CIPP/C, is the Founder of Nymity, which offers Web-based privacy support to help organizations control their privacy risks. Learn more at www.nymity.com.