Canada: Upcoming Health-Specific Privacy Legislation

Prince Edward Island, the Northwest Territories and the Yukon have introduced new legislation aimed at protecting personal health information that is expected to come into force sometime in 2015. Currently, the management and sharing of personal health information in these provinces and territories is governed by the general public and private sector privacy legislation, which are not aimed at meeting the specific needs of the healthcare sector. Once these laws enter into force, PEI, the NWT and Yukon will be in line with a number of Canadian provinces that have already enacted privacy legislation that recognizes the specific needs of the health care sector, such as Alberta, British Columbia (with regard to certain designated databases), Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario and Saskatchewan.

The purpose of health-specific legislation is to protect patients' personal health information; to set rules pertaining to the collection, use and disclosure of personal health information that health care providers must follow; and to enable improved care to patients, while still protecting patient privacy appropriately. Health-specific legislation aims to find a balance between protecting sensitive health information and delivering efficient health care services by establishing a consent regime that allows for implied consent to share information among the patient's health care team, while requiring express consent for disclosures to other persons and organizations. While the precise definition varies from jurisdiction to jurisdiction, personal health information is broadly defined in the applicable legislation as information about an identifiable person that relates to their physical or mental health and health services provided, and may also capture other personal information that is provided in the course of obtaining health care services.

Prince Edward Island – Bill 42 (Health Information Act)

Prince Edward Island's Bill 42 (Health Information Act ("HIA")) received Royal Assent on May 14, 2014. The HIA is expected to be proclaimed sometime in 2015. The HIA will apply: (a) to personal health information that is collected, used or disclosed by a custodian or that is in the custody or control of a custodian; and (b) to personal health information that was collected before the coming into force of the Act and that is prescribed by regulation, whether or not it was collected by a person or organization that meets the criteria of a custodian under this Act.

A "custodian" is defined in section 1(e) as:

(e) "custodian" means a person or organization that collects, maintains, uses or discloses personal health information for the purpose of providing or assisting in the provision of health care or treatment or the planning and management of the health care system or delivering a government program or service, and, without limiting the foregoing, includes

(i) public bodies,

(ii) health care providers,

(iii) the Minister,

(iv) the following organizations or agencies,

(A) Island EMS,

(B) Canadian Blood Services,

(v) information managers,

(vi) researchers conducting a research project approved in accordance with this Act,

(vii) health care facilities,

(viii) nursing homes and community care facilities, and

(ix) a person designated in the regulations as a custodian;

"Health care" is broadly defined in section 1(k) as:

(k) "health care" means any observation, examination, assessment, care, service or procedure that is carried out, provided or undertaken for a health-related purpose, including

(i) the diagnosis, treatment or maintenance of an individual's physical or mental condition,

(ii) the prevention of disease or injury or promotion of health,

(iii) rehabilitative or palliative care,

(iv) the compounding of a drug for the use of an individual, pursuant to a prescription,

(v) the dispensing or selling of a drug, a device, equipment or any other item to an individual for the use of the individual, pursuant to a prescription,

(vi) a program or service related to health care prescribed by regulation, and

(vii) the taking of a donation of blood, blood products, body tissues or organs;

Similarly the term "health care facility" is broadly defined in section 1(l) as follows:

(l) "health care facility" means

(i) a hospital,

(ii) a health centre,

(iii) a medical clinic,

(iv) a dental clinic,

(v) a pharmacy, and

(vi) any other facility in which health care is provided that is designated in the regulations;

Based on these definitions, the HIA will apply to both the public and private sectors, as well as the not-for-profit sector. The HIA establishes rules regarding the collection, use, disclosure, retention and secure destruction of personal health information, and establishes rules regarding consent. The HIA further facilitates the sharing of personal information in the health care context for the purpose of making patient care more efficient. For example, section 13(4) provides that where an individual has provided personal health information to a custodian, the custodian is entitled to assume (unless it is not reasonable in the circumstances), that the custodian has the individual's implied consent to provide that information to another custodian for the purposes of providing health care to that individual.

The HIA also provides individuals with the right to access their own personal health information and the right to request a correction of this information. The HIA further outlines the requirements to obtain consent for the purposes of collection, use or disclosure of personal health information.

The monetary penalties for contravention of the HIA or its regulations are set at $15,000 in the case of an individual and $50,000 in the case of a corporation. There is a two year limitation period (from the date of discovery of the alleged offence) on the prosecution of offences under the HIA and its regulations.

Northwest Territories – Bill 4 (Health Information Act)

Northwest Territories' Bill 4 (Health Information Act "HIA") received Royal Assent on March 13, 2014. Preparation for implementation is currently ongoing, and the Department of Health and Social Services expects the HIA to come into force in 2015. The HIA establishes rules regarding the collection, use, disclosure and security of personal health information that protect the confidentiality of the information and the privacy of affected individuals, while facilitating the effective provision of health services. Once the HIA has been brought into force, the Department of Health and Social Services will apply to Industry Canada to obtain the status of being considered substantially similar to PIPEDA.

The HIA will apply to all records containing personal health information that are in the custody or under the control of a health information custodian, with enumerated exceptions. The HIA will apply to the Department and the regional Health and Social Services Authorities, as well as to private pharmacists and private practice doctors. Others may be designated in the future, for example, emergency medical services (EMS) providers. Personal health information in child and family services records, adoption records, human resource personnel records and professional licensing files is not covered by the HIA. "Health information custodian" is defined in section 1 as follows:

(a) the Department,

(b) a medical practitioner, other than a medical practitioner acting as an agent of a health information custodian,

(c) a pharmacist as defined in subsection 1(1) of the Pharmacy Act, other than a pharmacist acting as an agent of a health information custodian,

(d) a prescribed person, class of persons or organization responsible for the management, control and operation of one or more health facilities, as defined in section 1 of the Hospital Insurance and Health and Social Services Administration Act, or

(e) a prescribed person, class of persons or organization other than a person, class of persons or organization prescribed as a health information custodian under paragraph (d);

"Health facility" is defined in section 1 of the Hospital Insurance and Health and Social Services Administration Act as "any hospital, health centre or other health program or service owned or funded by the Government of the Northwest Territories".

The HIA will apply to health services, including mental health services and addiction services. The latter will be further prescribed as a health service in the regulations. On the other hand, the HIA will not apply to social services, such as community counselling services unrelated to addiction services. "Health service" is defined in section 1 of the HIA as follows:

(a) includes

(i) an observation, examination, assessment, service or procedure in relation to an individual, or the care of an individual, that is carried out, provided or undertaken for one of the following health-related purposes:

(A) protection, promotion or maintenance of health,

(B) prevention of conditions adverse to health,

(C) testing or examining of a body part or substance,

(D) diagnosis,

(E) treatment,

(F) rehabilitation,

(G) care for the health needs of the ill, injured, disabled or dying,

(ii) an ambulance service,

(iii) a service provided by a pharmacist or under the direction or supervision of a pharmacist, and

(iv) a prescribed health service, and

(b) does not include a service prescribed not to be a health service;

"Health service provider" means: (a) subject to the regulations, a person or organization that provides a health service, or (b) an organization that is prescribed as a health service provider for a specified purpose. Under section 18 of the HIA, a health information custodian can disclose personal health information for the purposes of providing or assisting in the provision of a health service to an individual to a health service provider without seeking express consent.

The HIA also provides individuals with the right to access their own personal health information and the right to request a correction of this information. The HIA further outlines the requirement to obtain consent for the purpose of collection, use or disclosure of personal health information.

The monetary penalties for contravention of the HIA or its regulations are set at $50,000 in the case of an individual and $500,000 in the case of a corporation. There is a three year limitation period (from the date of discovery of the alleged offence) on the prosecution of offences under the HIA and its regulations.

Yukon – Bill 61 (Health Information Privacy and Management Act Bill)

Yukon's Bill 61 (Health Information Privacy and Management Act  (the "HIPMA"))  received Royal Assent on Dec. 12, 2013, but has not yet come into force. The HIPMA contains features similar to health information privacy legislation across Canada, seeking to adequately balance the right to privacy of an individual's health information against the complex needs of health care system. Challenges that are unique to Yukon include that fact that Yukoners' personal health information travels across borders more often than in some other jurisdictions given that Yukoners are required, on occasion, to seek care outside Yukon. Moreover, being a small jurisdiction, Yukon has a heightened need for strong controls to ensure the protection of personal health information from unauthorized access or disclosure.

The HIPMA will apply to the both the public and the private sector. Section 2(1) of the HIPMA defines "custodian" as a person (other than a person who is prescribed not to be a custodian) who is: (a) the Department of Health and Social Services, (b) the operator of a hospital or health facility, (c) a health care provider, (d) a prescribed branch, operation or program of a Yukon First Nation, (e) the Minister, (f) a person who, in another province (i) performs functions substantially similar to the functions performed by a health care provider, and (ii) is, in the performance of those functions, subject to an enactment, of Canada or a province, that governs the collection, use and disclosure of personal information or personal health information, or (g) a prescribed person.

"Health care" means any activity (other than an activity that is prescribed not to be health care) that is or includes:

(a) any service (including any observation, examination, assessment, care, or procedure) that is provided

(i) to diagnose, treat or maintain an individual's physical or mental condition,

(ii) to prevent disease or injury or to promote health,

(iii) as part of rehabilitative or palliative care, or

(iv) for any prescribed purpose, or

(b) the compounding, dispensing or selling of a drug, a device, equipment or any other item for the use of an individual pursuant to a prescription where a prescription is required by law;

"Health care provider" means

(a) a medical practitioner,

(b) a registered nurse or nurse practitioner,

(c) a licensed practical nurse as defined in the Licensed Practical Nurses Act,

(d) a pharmacist,

(e) a chiropractor as defined in the Chiropractors Act,

(f) an optometrist,

(g) a dentist,

(h) a dental assistant, dental therapist or dental hygienist, as those terms are defined in the Dental Profession Act,

(i) a denturist,

(j) an individual who is a member of a designated health profession as defined in the Health Professions Act,

(k) a professional corporation entitled to practice health care through or on behalf of an individual listed in paragraph (a) through (j), or

(l) a prescribed person;

"Health facility" means

(a) a medical clinic, community health centre, dental clinic, medical laboratory, specimen collection centre or pharmacy,

(b) a clinic or facility in which health care diagnostic testing or health care procedures are routinely provided,

(c) a residential facility, including a nursing home, that provides continuing health care or long-term health care, or

(d) a prescribed facility;

The HIPMA provides individuals with the right to access their own personal health information and the right to request a correction of this information. As well, individuals have a right to access logs that custodians must keep for any access to their personal health information. The HIPMA contains rules about when an individual's consent is required to collect, use and disclose the individual's personal health information. The HIPMA also sets out the requirements to create an electronic health information network.

The HIPMA contains a mandatory security breach notification requirement. Section 29 to 31 require a custodian to notify an individual of a security breach that may result in a "risk of significant harm" to the individual. The custodian must also notify the Information Commissioner at the same time, in order to allow the Commissioner to provide recommendations to reduce the risk of recurrence.

Section 61 of the HIPMA, "Diagnosis decisions", is a unique provision not contained in any other privacy legislation in Canada. This provision will allow the court to order an individual or any other person to disclose, for the purpose of a diagnosis decision, any of the individual's personal health information that is in their knowledge, custody or control.

Under section 66, all custodians, except a custodian who is a public body, a branch, operation or program of a Yukon First Nation or prescribed person, are required to seek ethical review to collect and use personal health information for the purposes of research.

The monetary penalties for contravention of the HIPMA or its regulations are set at $25,000 in the case of an individual and $100,000 in the case of a corporation. A prosecution of an offence under HIPMA must be commenced within two years after the facts on which the proceeding is based are alleged to have occurred.

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.

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