Vaccine Choice Canada was contacted in 2015 by a British Columbia family who asked, “Does a parent have to disclose the immunization records of their child? A local health authority is asking for our records. We would rather they remain private as we have not immunized our children and we feel a sense of discrimination because of our choice. My initial thought is that we do not have to disclose a medical procedure or medication being taken or other medical choices to the local health authority – do we? Why must they have a record of vaccinations? They have a record on our first son and we still, 5 years later, get harassing phone calls to get shots. We would rather keep our second child’s status private. Can you help point me in the direction of a legal standing that can support me?”
The local health authority threatened the family’s daycare provider who was told that they were “withholding her licence as long as we do not tell them yes, we have vaccinated or no, we have not.”
Upon finding the Child Care Licensing Regulation for BC, Link to http://www.bclaws.ca/Recon/document/ID/freeside/332_2007#section57 it was clear that the “immunization status” of a child is not clearly defined and may be defined as ‘private’ or ‘undisclosed’.
The family sent the following e-mail to the Vancouver Island Health Authority:
Dear (VIHA)
The pre-school we send our child to has been undergoing a license review and it came to our attention that Licensed daycares/preschools under the Child Care regulations 56 (2) (a) “must keep the immunization status of each child on record”.
We have never given unnecessary medical information to any child care facility, be it school or day care, as we believe strongly in the right to privacy in our personal medical information and furthermore believe that we cannot be denied service from any organization (licensed or not) based on choosing not to disclose medical information about our children and that this is true despite what the licensing regulating body may be requesting of people running licensed child care facilities.
However, we truly respect (teacher’s name), and the amazing program she runs, and so when she requested “immunization status” we chose to write a letter stating (teacher’s name) has requested this information and that we respectfully decline to provide details. We assumed that this would satisfy the regulations as (teacher’s name) has requested our “immunization status” and we provided one; it would be something to idea of “private” or “unknown.” (teacher’s name) has informed us that the letter we submitted was not acceptable to meet the regulations and that she this is inhibiting her ability to gain ‘compliance’ for her license.
We asked her for further clarification and she sent us this information from an email she received:
“To clarify, Licensing’s relationship is with the licensee not with the parents. Licensees are required to be in compliance with the Community Care and Assisted Living Act, Child Care Regulations. Regulation 56 (2) (a) states “A licensee must keep, for each child, a record showing the following information: (a) name, sex, date of birth, medical insurance number and immunization status.” As the parents have chosen to enrol their child in a licensed facility they are required to meet the Community Care Facility Licensing regulations, unfortunately, the facility will remain to be in noncompliance until this information is provided.”
I am interested in how we can resolve this situation so that (teacher’s name) can gain ‘compliance’ and be in good standing. So, I have a few questions that I am hoping you can clarify.
In my profession, I work with the enactment of provincial government legislation on a daily basis and have looked over the entire act and cannot find a definition of what “immunization status” is. We have been told the letter we wrote does not adequately meet the requirement but there is no information as to what would meet it.
Can you please let tell us if there is an official definition for “immunization status” within the law and if so what is the definition and where it can be found?
As we are reading the regulations, if undefined, “Immunization Status” is not simply an immunization record or a record of a parent declining immunizations. Because ‘status’ can be taken to mean any position or standing, and not specifically a ‘yes or no’ answer, we hope that there can be an acceptation of our position as “unknown.”
We are also unsure as to which ‘immunizations’ are included in this status; this also appears to be absent from the regulation. We would appreciate a list as to which immunizations this status is referring? Would ‘Immunizations’ be referring strictly to the BC vaccine schedule or would alternative schedules, or are alternative/homeopathic vaccinations included? Both ‘Immunization’ and ‘Status’ seem a little vague and further information is not readily available anywhere we have looked.
If there is no official definition in the policy as to what “Immunization Status” means can you please explain how each individual worker decides this?
Is this is a “worker discretion” situation where each worker can decide what appropriately meets the spirit of the legislation?
If this is the case can you please let us know what you consider all adequate options for appropriately meeting this regulation?
Also, how do the province’s privacy laws play into this decision making?
Finally, we are interested in knowing with whom this information is shared? I understand that we give the information to (teacher’s name), and she must have that information to be compliant for her license, but does she pass this information on to VIHA? If so, how and where is it held, and with whom can/does VIHA share this information?
We realize we are asking for a lot of information and we appreciate your time in this manner.
Please feel free to simply reply to this email with the above information or directions as to where this information can be obtained.
Thanks again,
The response from Vancouver Island Health Authority to the family:
Thanks for your email. Licensing will accept a parents written notification of “unknown” or that they refuse to share this personal information with the licensee as being the record of immunization status.
This is the first time that we have encountered parental objection to sharing immunization details with a facility.
Licensing interprets status in the legislation in conjunction with immunization to mean, ‘the position of affairs’ (Concise Canadian Oxford Dictionary, 2005) – or more simply did they get immunized or not. This interpretation is supported by the Ministry of Health Licensing Branch, the stewards of the Community Care Facilities Act and the related regulations. However, in the event of an outbreak of a communicable disease at a facility or in a community, the Medical Health Officers will request detailed information from facilities and parents (which immunizations were provided and the dates that they were given to the child),to determine if particular children require further immunizations, antiviral medications, specialized treatment to either prevent them from contacting the disease or to mitigate the effects of the disease, and/or to prevent the spread of the disease.
Licensing staff do not keep records of children’s immunization dates at facilities, they only review the licensee’s records while inspecting at the facility. The exception to this being in an outbreak situation as previously outlined, if we are asked to collect this information on behalf of a Medical Health Officer. We also are bound by confidentiality and privacy laws and therefore, are bound to the requirements of the applicable legislation if information obtained in the course of our duties has been requested by the public or an outside agency.
It is within a parent’s rights to not share the information, just as immunizations are voluntary. A record of their refusal being kept by the Licensee will meet the legislated requirements. [emphasis ours]
The immunizations referred to in the regulation are the provincial list of recommended immunizations (schedule) – http://www.healthlinkbc.ca/toolsvideos/immunization/
Thank you.
Regards,
(licencing officer)
VCC received this update from the parents:
Hello, I just wanted to update you on our situation. We constructed a very detailed email, see attached, and after nearly a week they responded. It looks as though we have won our side of the argument and that we can now submit ‘unknown’ as an immunization status. Of course, most of their response is an explanation as to why this is not ideal. But, in the end, they acknowledge that it is our right to remain private about our health and medical records. I believe that they took the time to try and find a way to get the information but, in the end, the law protects us (thank goodness, hopefully it remains that way!). Thanks for your help and support in this matter. We are so relieved that we can remain in the daycare, that the facility will be awarded full ‘compliance’, and that we can all stop being harassed (even if it is only temporarily) about this issue. Please feel free to share with anyone else who comes up against this issue. Vaccine choice should not be punished and privacy helps to mitigate that in the case that education just falls on deaf (or perhaps vaccine-injured?) ears.
Thanks to this BC family’s perseverance, a victory has been achieved in getting the licensing authority to admit that parents can refuse disclosure of their child’s vaccination status and that “unknown” vaccination status is an acceptable statement for those wishing to maintain privacy of their medical records.
“It is within a parent’s rights to not share the information, just as immunizations are voluntary. A record of their refusal being kept by the Licensee [daycare operator] will meet the legislated requirements.”
References:
BC Child Care Licensing Regulation
http://www.bclaws.ca/Recon/document/ID/freeside/332_2007#section57
Division 4 — Records
Records for each child
(2) A licensee must keep, for each child, a record showing the following information:
(a) name, sex, date of birth, medical insurance plan number and immunization status;
(b) if a child’s immunization status is not reasonably known or available to the child’s parent, keep a record detailing as much information as is known respecting the child’s immunization status;
Laws regarding child care and day care in Canada
If you are told that you must vaccinate you can demand that the provincial health authorities show you where, in provincial law, does it indicate that you must vaccinate your child in order to qualify for daycare or daycare subsidies.
Compare provincial regulations & guidelines
http://www.cbc.ca/marketplace/blog/compare-provincial-regulations-and-guidelines
Privacy Legislation in Canada – (with Links to Provincial privacy laws)
https://www.priv.gc.ca/resource/fs-fi/02_05_d_15_e.asp
Your rights under privacy laws protect your right to NOT disclose your family member’s private medical records to anyone. The link above will direct you to your province’s privacy laws. Study the various aspects carefully and find the area that gives you the right to NOT disclose your private medical records.
Please note: Ontario legislation – Child Care & Early Years Act requires “Objections and medical reasons under subsection (2) shall be submitted in a form approved by the Minister.”
https://www.ontario.ca/laws/regulation/150137
More information on Ontario regulations here.
Law Commission of Ontario III. Privacy and Electronic Health Records
http://www.lco-cdo.org/en/ehealth-background-paper-sectionIII
“A. The Protection of Personal Health Information
Personal health information is the most private form of information due to its highly sensitive nature, and the circumstances of vulnerability and trust under which it is confided or collected.[23] In Canada, the protection of personal health information is regulated by various federal and provincial privacy laws that establish standards for patient privacy rights.[24] The freedom of information and protection of privacy statutes in most provinces protect personal health information in the custody or control of public or government bodies.[25] Public bodies encompassed by such legislation include hospital and regional health authorities, as well as health agencies. In addition, the federally regulated public sector has privacy legislation in place to cover both personal information and personal health information in the custody and control of federal government bodies (i.e. the Privacy Act[26] and Access to Information Act[27]). The Personal Information Protection and Electronic Document Act (PIPEDA),[28] governs the private sector, and applies to both federal and provincial private entities, unless the provincial privacy statutes have been deemed substantially similar.[29] PIPEDA extends to information collected, used or disclosed in the course of commercial activities. In the healthcare context, PIPEDA applies to entities such as private pharmacies, laboratories and healthcare providers operating private practices.
B. Health Information Specific Legislation
The sensitive nature of personal health information has prompted several provinces to enact health information specific legislation. Manitoba, Saskatchewan, Alberta, Newfoundland and Ontario are the legislative pioneers in this regard.[30] The statutes apply broadly to the collection, use, disclosure and retention of personal health information by healthcare providers.
There is, however, significant variation in privacy laws and data access policies nation-wide.[31] This is evident when comparing consent frameworks employed by provincial health information legislation. For instance, the Saskatchewan Health Information Protection Act (HIPA) follows a deemed consent model.[32] Here, an individual’s consent is deemed to exist where personal health information is required to provide health services.[33] Alternatively, Ontario’s Personal Health Information Protection Act (PHIPA) has adopted an implied consent model for the collection, use or disclosure of health information.[34] Here consent is implied if health information is disclosed for purposes of providing healthcare or assisting in providing healthcare.[35]
The consent provisions specifically relevant to electronic health records also show a lack of uniformity. Manitoba regulations permit disclosure without consent for certain EHR purposes,[36] while Ontario’s leaves the specific rules regarding EHRs to be established in regulations.[37] Should these regulations conflict with more specific health information relevant legislation in other provinces, challenges will emerge as EHR data moves from one jurisdiction to another.
Prompted by provider feedback, Alberta and Saskatchewan have already altered their health information legislation, as healthcare providers found EHR relevant provisions to be too cumbersome to be applied.[38] When first implemented, Saskatchewan’s HIPA gave individuals the right to direct that a trustee not store their specified information in the Saskatchewan Health Information Network (SHIN).[39] Today, an opt-out method is employed, as individuals must indicate in writing if they do not wish to be included. Alberta legislation underwent a similar change in 2003, as the provision that required consent from individuals before information could be disclosed electronically was removed.[40]
Questions:
“Differences in rules on how the scope of purpose is defined, the form of consent required, the conditions for substitute decision-making, the criteria for non-consensual access to personal health information, periods for retention of data, and requirements for destruction, to name but a few, must be seriously addressed in order to enable the development of EHR systems .”
(Canada, Standing Senate Committee on Social Affairs, Science and Technology, 2002)
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- Should provincial privacy legislation be aligned to facilitate a national electronic health record that enables the transfer of information across borders?
- If so, how can these inconsistencies be reconciled?”
