Canada has been slow to require notification of affected persons in events of privacy breaches.
While Canada has both federal and provincial laws addressing privacy regulation, including the federal Personal Information Protection and Electronic Documents Act ("PIPEDA"), the provincial Personal Information Protection Act ("PIPA") in both Alberta and British Columbia and Ontario's Personal Health Information Privacy Act, 2004 ("PHIPA"), at the time of this article only PHIPA expressly requires organizations that handle personal information to notify those individuals who are affected by a privacy breach.
Arguments are often put forth that PIPEDA and each of the PIPAs effectively require breach notification as a result of the security obligations and use and disclosure restrictions provided for thereunder. However, despite the strength of these arguments, it should be noted that at this point, none of these pieces of legislation expressly require notification as a result of a breach. All of that is set to change in the very near future.
For the limited purpose of this article, given the intended audience, PHIPA (versus PIPEDA and the PIPAs) and the obligations of breach notification thereunder are the focus.
Privacy breaches are not just annoyances with which an organization has to deal. They can lead to serious consequences for the victim, including and not limited to disclosure of traumatizing health information being released to the public (including friends and employers and, in some instances, for the first time to the individual himself or herself), identity theft, an increased risk of physical harm or harassment, or even damage to the victim's reputation and employment status. The damage privacy breaches bring upon a health care institution is almost as serious. The institution's reputation for confidentiality (a cornerstone of effective treatment) is undermined and the resources involved in managing a breach once it occurs can be all encompassing.
Contrary to popular belief, privacy breaches are not usually caused by third-party hackers. A privacy breach is typically caused by human error or faulty practices and procedures.
PHIPA seeks to protect an individual's right to privacy regarding his or her personal health information by establishing rules for the collection, use, disclosure, security and retention of that information. Not only must adequate systems and processes be in place to ensure information is as secure as possible, but health information custodians must take reasonable steps to ensure personal health information in their custody or control is protected against theft, loss and unauthorized use or disclosure.
Health information custodians are obliged under PHIPA to notify the individual at the first reasonable opportunity if personal health information about the individual is lost, stolen or accessed by unauthorized persons.
When a privacy breach is detected, the responsible health information custodian must contain the breach as fast as possible. The contravening practice should be stopped and someone with sufficient seniority and knowledge should be appointed to lead the investigation. If theft is involved, the police must be notified to effectively contain the breach.
A preliminary assessment on the nature and scope of the breach must also be performed. One must determine exactly what health information was involved in the breach, the extent of the breach and its level of sensitivity. Only then can the risks be property ascertained.
Further to these steps, as required under PHIPA, the health information custodian has a legal obligation to notify individuals whose information was subject to the breach. The health information custodian, depending on the severity of the breach, may also need to notify related third parties, such as credit card providers or insurers, the Information and Privacy Commissioner of Ontario, and the police, if the health information was disclosed as a result of a crime. Notifications should include, as appropriate, general information regarding the incident and its timing, the nature of the health information involved in the breach, the steps that have been undertaken to control or reduce further harm and contact information of a department or individual who is able to answer questions or provide further information.1
A positive example of how to manage a privacy breach can be seen in Toronto's Hospital for Sick Kids ("Sick Kids") handling of a high-profile privacy breach. When the personal health information of over 3,000 current and former patients of Sick Kids was stolen, the hospital managed the breach well and fulfilled its duty to notify victims of the breach, as outlined in PHIPA.
In March 2007, following the aforementioned Sick Kids incident, the Ontario Information and Privacy Commissioner, Ann Cavoukian, released a health order, providing guidance to all health information custodians on how to better protect personal health information, in order to avoid similar privacy breaches in the future. The Commissioner's order, issued under PHIPA, required hospitals to adopt stricter policies to protect patient privacy, notably, a mandatory encryption of all identifiable personal health information stored on mobile electronic devices.
Privacy breaches can be very expensive in terms of resources necessary to manage and contain the breach, and can lead to negative publicity and legal liability. Adopting preventative measures, as well as notifying victims of a privacy breach – whether legally required or not – may be useful in mitigating one's damages and rebuilding one's reputation.
Paige Backman* is a partner in the Corporate/Commercial Group and a member of the Information Technology Team.
The author acknowledges the assistance of Karen Levin, a student-at-law at Aird & Berlis LLP, for her contribution to this article.
1 The theft of the personal health information occurred on January 4, 2007, when a physician at Sick Kids, who also functions as a researcher, left the hospital with one of its laptop computers, in order to analyze the research data stored on it at home. The research data contained patients' names and hospital numbers, as well as details relating to their medical conditions. On his way home, the physician made a stop and parked his minivan, leaving the laptop, covered by a blanket, in the vehicle. Upon his return, the physician discovered that his minivan had been broken into and the laptop had been stolen. Following discussions with the Office of the Information and Privacy Commissioner of Ontario, Sick Kids proceeded to notify those victims of the privacy breach for whom it had contact information.
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