How privacy laws and principles can hide missing persons

The head of a St. Catharines social agency says more missing adults in Ontario could be found if government legislation did not prohibit sharing personal information with family members. 

Last week, a man who had been missing from Waterloo Region for 30 years turned up in St. Catharines. Edgar Latulip was 21 when he disappeared, and was known to struggle with his mental health and to have a developmental disability.

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"Sometimes these people will die with their rights on," says Betty-Lou Souter, CEO of Community Care, who could not say whether Latulip had used her agency's services. 

"They have rights and responsibilities within the Mental Health Act that precludes us from going and taking them and forcing them into a situation that they're not comfortable with."

Problem with privacy

Souter says it is important to respect the privacy of all people, but rules around confidentiality often put an individual at odds with his or her family.

"I can have somebody that I look after that has a mental illness and I can't call his parents and say, 'So and so is here,' unless he signs a form that I can say that," she says.

"I know people that are here and that have gone to the hospital and I'm not allowed to call their family...because they said no."

She would like to see a process in place whereby social agencies would have the option of disclosing personal information if it was in the best interest of a client.

Amendments to the act

Confidentiality was not mentioned in the original Mental Health Act, but that changed when Gilbert Sharpe became the legal director for the Ontario Ministry of Health in the 1970s.

"They were different days," he says, referring to the old practice of committing people to mental institutions without their consent. "There were issues of potential abuse in the system at that time, and some of the laws were written with that in mind."

Many of these stories, when I dig down into where impediments were perceived, often...there was a way to deal with it.- Gilbert Sharpe, laywer

While amending the act, Sharpe says he had to balance the well-being of an individual with his or her right to privacy. As with any law, he began by stating the principal and then listing the exceptions.

"So the principal is that you can't treat people without consent," he says. "You can't disclose their information. It's private."

The exceptions that followed this rule were many. One states that a designated person can make a decision on behalf of an individual who is not mentally capable of making that decision. 

Another exception says the right to privacy can be overruled if someone who is mentally capable is at risk of harming him or herself. 

Perceived impediments

Sharpe says many social agencies that feel stymied by the Mental Health Act could probably find a solution to their problems in those exceptions.

"Many of these stories, when I dig down into where impediments were perceived, often...there was a way to deal with it," he said.

But Sharpe admits that the act is complex and says there should be a help line for agencies who have questions about what they can and cannot do.