Article by Veera Rastogi, ©2005 Blake, Cassels & Graydon LLP
This article was originally published in Blakes Bulletin on Privacy - February 2005
As of November 1, 2004, the Canadian privacy landscape may have become even more complex for organizations in Ontario dealing with personal health information.
The Personal Health Information Protection Act, 2004 (HIPA), Ontario’s new health-specific privacy legislation, came into force on November 1, 2004 and governs the collection, use and disclosure of personal health information by "health information custodians", their agents, and people receiving personal health information from health information custodians. This article provides an overview of the application and scope of HIPA.
The Tale of Two Acts
HIPA was enacted in response to concerns of stakeholders in Ontario’s health care sector that the federal Personal Information Protection and Electronic Documents Act (PIPEDA) does not recognize the unique character of personal health information and its necessary use and disclosure for valuable secondary purposes within the health care system. The Ontario Information and Privacy Commissioner (the IPC) takes the position that HIPA addresses these concerns while adopting the 10 fair information principles incorporated into PIPEDA. The IPC is urging the federal Privacy Commissioner and Industry Canada to promptly declare HIPA to be "substantially similar" to PIPEDA, so that organizations will not have to comply with two laws in respect of personal health information. However, until such a declaration is made, certain Ontario organizations dealing with personal health information will have to comply with HIPA and, to the extent that they handle such information in the course of commercial activities, PIPEDA as well.
Even if HIPA is declared substantially similar, PIPEDA will continue to apply to any cross-border collections, uses and disclosures of personal information (including personal health information) in the course of commercial activities.
Purpose and Scope
The stated purpose of HIPA is to balance individuals’ right to privacy with respect to their own personal health information with the legitimate needs of health care providers to access and share this information. Under HIPA, personal health information (PHI) includes identifying information about an individual in oral or recorded form that: (i) relates to his/her physical or mental health; (ii) relates to providing health care, including identifying a provider of health care; (iii) is a plan of service within the meaning of the Long-Term Care Act; (iv) relates to the donation of a body part or bodily substance; (v) relates to payments or eligibility for health care in respect of the individual; (vi) is a health number; (vii) identifies a substitute decision-maker of that individual; or, (viii) is in a record where the record contains any of the above information. PHI does not include a record of information about an employee or other agent of the health information custodian, unless the record is primarily related to the provision of health care to the employee or agent.
HIPA does not apply to all PHI, but only to that which is: (i) collected, used or disclosed by health information custodians; or, (ii) used or disclosed by persons who receive PHI from health information custodians. Health information custodians (HICs) generally include health care practitioners, medical officers of health, and health facilities such as hospitals, nursing homes, pharmacies, laboratories and community health centres. Those who perform services on behalf of a HIC are known as "agents" under HIPA and are required to follow certain requirements as discussed below.
Consent and Other Responsibilities of HICs
HICs must implement and adhere to certain information practices which are similar to those required by PIPEDA, including: (i) ensuring the accuracy of PHI; (ii) safeguarding PHI and ensuring its secure disposal; (iii) retaining records that are the subject of an access request, until the procedural matters relating to the request are completed; (iv) designating a contact person accountable for compliance and responsible for questions, access and correction requests, and complaints; (v) making available a written statement describing the HIC’s "information practices" including how and why the HIC handles PHI and the security measures it maintains, and outlining how the contact person can be reached for purposes of inquiries, requests or complaints; (vi) collecting, using and disclosing PHI only if other information will not serve the purpose and only to the extent necessary to meet the purpose; (vii) providing access to, or correcting, PHI at an individual’s request, subject to some exceptions; and, (viii) taking responsibility for the PHI in its custody or control and for the actions of its agents.
An "agent" is a person that, with the authorisation of the HIC, acts for or on behalf of the HIC, for the purposes of the HIC, and not the agent’s own purposes, whether or not the agent has authority to bind the HIC, is employed by the HIC, or is being remunerated. An agent may collect, use, disclose, retain or dispose of PHI only with the HIC’s permission and only to the extent that the HIC itself is authorised to do so. Although not expressly stated in the legislation, the IPC has stated that the provision of PHI by a HIC to its agent is a "use" by the HIC, not a collection by, nor disclosure to, the agent.
With some exceptions, a HIC must obtain consent before it collects, uses or discloses PHI. To be valid, consent must: (i) be a consent of the individual; (ii) be knowledgeable; (iii) relate to the PHI; and, (iv) not be obtained through deception or coercion. Consent is "knowledgeable" if the individual knows the purpose of the collection, use or disclosure and that consent may be provided or withheld. Where reasonable in the circumstances, the knowledge of an individual may be inferred if a HIC prominently posts or makes readily available a notice describing the purposes of the collection, use and disclosure of PHI. While consent must always be knowledgeable, it may be either express or implied. For example, a HIC who receives PHI from another HIC may assume that it has implied consent for the collection, use and disclosure of the PHI for the purposes of providing health care, unless the receiving HIC is aware that the individual has expressly withheld or withdrawn the consent. However, subject to specific exceptions, there are some instances in which consent must be express, such as: (i) where a HIC discloses PHI to a person that is not a HIC; or, (ii) a HIC discloses PHI to another HIC for purposes other than the provision of health care.
The Recipient Rule
Subject to the regulations and any other law, a non-HIC to whom a HIC discloses PHI (a Recipient) cannot: (i) use or disclose the PHI other than for the purposes for which the HIC was authorized to disclose the PHI, or for the purpose of carrying out a statutory or legal duty; and, (ii) use or disclose more of the PHI than is reasonably necessary to meet the purposes. Note that an agent is not a Recipient, as the transfer of PHI by a HIC to an agent is deemed to be a use by the HIC as opposed to a disclosure. Ontario Regulation 329/04 (the Regulation) clarifies that these restrictions on Recipients do not apply to an individual or his/her substitute decision-maker in respect of PHI about the individual, or to prevent a Recipient from using or disclosing the PHI pursuant to a valid consent. Moreover, HIPA does not apply at all to PHI collected by a non-HIC from a source other than a HIC, although PIPEDA may still apply in that scenario. The Regulation grandfathers the use and disclosure restriction, meaning that Recipients having received PHI prior to November 1, 2004 may continue to use and disclose the PHI for the purposes for which it was disclosed to them, except where otherwise prohibited by law. Finally, the Regulation specifies that a non-HIC who provides drug benefits may disclose PHI to a member of the Ontario College of Pharmacists to assist the member in advising an individual or providing him/her with health care.
Other than the restrictions noted above, Recipients are not subject to the general consent and information practices requirements of HIPA.
Enforcement, Offences and Penalties
The Office of the IPC is the overseeing body for HIPA. A person (meaning an individual or an organization) who believes that another person has or is about to contravene HIPA may complain in writing to the IPC. The IPC may encourage or require attempts informally to resolve the complaint, and/or may choose to conduct a review of the complaint where there are reasonable grounds to believe that a contravention of HIPA has or is about to occur. The IPC may decide not to investigate a complaint for any reason he/she considers proper, including where the complaint could have been dealt with through another procedure, or the complainant does not have sufficient personal interest in the issue. In the absence of a complaint, the IPC also has the power to conduct a self-initiated review. In conducting a review, the IPC may, among other things: (i) enter any premises associated with the review; (ii) review or copy any relevant records or other material; (iii) compel testimony before the IPC; and, (iv) issue binding orders directed at HICs, agents of HICs, or any other person whose activities the IPC reviewed.
Persons affected by an order (other than an order relating to access or correction) may appeal to the Ontario Divisional Court on questions of law within 30 days of receipt of the order. On appeal, the Court may direct the IPC to take certain actions pursuant to HIPA or may vary or set aside the IPC’s order. A person may bring an action in the Superior Court for damages for actual harm the person suffered as a result of: (i) a contravention of HIPA in respect of which the IPC has made an order that has become final; or, (ii) an offence under HIPA for which a person was convicted and the conviction has become final. The Superior Court may award damages in any amount, but may include an award of up to $10,000 for mental anguish suffered by the plaintiff as a result of a wilful or reckless contravention or offence. Despite the ability to bring an action for damages, no such action may be instituted against a HIC or any other person where that person acted reasonably and in good faith.
HIPA creates offences for contravention of the legislation, including: (i) wilfully collecting, using or disclosing PHI in contravention of HIPA; (ii) disposing of PHI in an attempt to evade an access request that has been made; (iii) wilfully obstructing the IPC in the performance of his/her duties, making a false statement to the IPC, or failing to comply with an order of the IPC; and, (iv) retaliating against a ‘whistle-blower’. Where a corporation commits an offence, every officer, employee or agent of the corporation who authorized or knowingly refrained from preventing the offence is guilty of the offence and liable, on conviction, to the penalty. A person convicted of an offence under HIPA, which may only be prosecuted by the Attorney General, is liable to a fine of up to $50,000 for an individual and $250,000 for a corporation.
HIPA allows the IPC to provide a copy of any order made after conducting a review, including the reasons for that order, to any person the IPC considers appropriate. Based on this authority, the IPC has stated that she intends to make her orders and investigation reports public. Hopefully, these investigation reports will provide HICs, agents and Recipients with some guidance as to how HIPA will be interpreted and applied by the IPC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.