Judge defends privacy commissioner's handling of case of doctor who accessed Humboldt Bronco victims' files

A Saskatoon judge is defending how the province's privacy commissioner handled a case that began when six doctors inappropriately accessed electronic health records of Humboldt Broncos players involved in a fatal bus crash last April.

Sixteen people were killed and 13 were injured in the crash between the junior hockey team's bus and a semi trailer at a rural Saskatchewan intersection.

The province's health agency began monitoring the electronic profiles of the patients — which include lab results, medication information and chronic diseases — three days after the crash.

This monitoring found six doctors and one office employee improperly accessing the records. Court of Queen's Bench Justice Richard Danyliuk said this was not surprising, given the profile and scope of the tragedy.

"Of course, people wanted to know what happened, and why. They wanted to know how the survivors were doing," he wrote in his 67-page decision released Thursday.

"In a time marked by confusion, and in a time simultaneously calling for privacy and compassion, the quest for information that is the hallmark of our present era continued unabated."

• Doctors snooped on Humboldt Broncos' records, privacy commissioner finds
• 'Families have been torn apart': Truck driver who caused Humboldt Broncos bus crash gets 8-year prison term

What Danyliuk did not accept were the reasons given by Dr. Crombie Stebner for accessing the medical files of three players, and then for seeking to prevent the privacy commissioner from identifying her in any way in his reporting on the breaches.

In an interview, Stebner's lawyer Mark Vanstone said his client stands by her motives for accessing the files and she disputes the privacy commissioner's characterization of those motives.

In an email to the College of Medicine sent after being notified of the breach, Dr. Stebner said she had treated two of the players before the accident. She checked the records of three players after the crash because she could not precisely recall the identities of the players.

She claimed to be in their "circle of care" and needed to know their status so she could get "closure" and restore her professional focus.

Vanstone says the case raises questions of what people expect from doctors.

"What do we want our doctors to be doing? If I'm a patient and I'm caught up in something tragic, would I approve of my doctor checking in on me, especially if they thought they were going to see me again," he said.

Danyliuk said the privacy commissioner correctly focused on whether she had a need to know.

"Dr. Stebner's account was varied, and she suggested she 'anticipated' that she might 'possibly' be called upon to care for one of the players injured in the Broncos collision," Danyliuk wrote.

Dr. Stebner also claimed that, should her identity become known after the privacy commissioner's investigation, it would create a "stigma." She compared the report to a "scarlet letter."

After a back-and-forth between the commission and Dr. Stebner after she obtained a draft of the commissioner's report, her name and initials were redacted and she was referred to as to as "Dr. M."

Dr. Stebner then went to court to get, among other things, a publication ban restricting media access and reporting on the proceedings and an order restraining the privacy commissioner from releasing or re-publishing the report on the breaches.

CBC and Postmedia, represented by lawyer Sean Sinclair, fought to lift the publication ban.

Danyliuk dismissed both of Dr. Stebner's applications, adding that Dr. Stebner's actions are the root cause of the situation.

"First, at the very heart of this matter is a clear and unequivocal breach by Dr. Stebner of third-party patients' privacy rights. What is resoundingly ignored within her evidence and argument is that she improperly accessed private patient information when she had no need to do so," he wrote.

"She can talk about her own putative privacy rights and her own fears all she wants, but that does not distract this Court from the root cause of this situation, and the root cause of the Commissioner issuing his reports. With respect to accessing this information, she was in the wrong."

Danyliuk added that Dr. Stebner is only to blame for her name becoming public.

"I am aware of the irony herein: had Dr. Stebner simply let the matter lie, her name would likely never have come to the attention of the public and the matter would simply have blown over."