Canada: Health Information Breach Notification Obligations Under Alberta's Health Information Act

Commencing August 31, 2018, Alberta's Health Information Act (the "HIA") will require custodians of personal health information to give notice of any health information security breach that presents a risk of harm to an individual. The security breach obligations under the HIA join an increasing number of Canadian statutory regimes that impose information security breach reporting and notification obligations. Custodians subject to the HIA should assess their readiness to comply with the security breach obligations, and make appropriate changes to prepare for compliance.

Background

The HIA regulates the collection, use and disclosure of health information that is in the custody, or under the control, of a "custodian" (including an ambulance or nursing home operator, a provincial health board, a regional health authority or a community health council) or an "affiliate" of a custodian (including an individual employed by, or performing services for, a custodian or a health service provider who admits and treats patients at a designated hospital) in Alberta.

In 2014, the Statutes Amendment Act, 2014 amended the HIA to introduce security breach notification obligations. In May 2018, the Government of Alberta issued an Order in Council to bring those obligations into force on August 31, 2018. The Government of Alberta also published the Health Information Amendment Regulation to provide details of the breach notification obligations.

The Breach Notification Obligations

Following is a summary of the breach notification obligations as set out in the HIA and its Health Information Regulation.

  1. Custodians' Duty to Notify
  2. If a custodian suffers a "loss of individually identifying health information or any unauthorized access to or disclosure of individually identifying health information in the custody or control of the custodian" that results in a "risk of harm" to an individual as a result of the loss or unauthorized access or disclosure, then the custodian must provide notice "as soon as practicable" to: the Information and Privacy Commissioner of Alberta; the Alberta Minister of Health; and the individual who is the subject of the individually identifying health information.

  3. Loss, Unauthorized Access/Disclosure and Risk of Harm

    The HIA does not define "loss", "unauthorized access" or "unauthorized disclosure" of health information. Similarly, the HIA does not define "risk of harm". Instead, the HIA provides that a custodian must consider all relevant factors, including factors prescribed regulations, in assessing whether there is a risk of harm to an individual. The factors listed in the regulations include:

    1. whether information has or may be accessed by or disclosed to a person;
    2. whether the information has or may be misused, including for identity theft or fraud;
    3. whether the information could cause embarrassment or harm (physical, mental, financial or reputational) to the affected individual;
    4. whether the incident has, or will, adversely affect the provision of a health service to the individual; and
    5. whether there are any circumstances that mitigate the potential for a risk of harm to arise, including: whether the information was sufficiently encrypted or secured in another electronic format; whether the information was destroyed or rendered inaccessible or unintelligible; whether the information was not accessed prior to recovery; or whether the information was erroneously accessed or received by a qualified custodian/affiliate in the course of their duties for a proper purpose who promptly addressed the unauthorized access or disclosure.

    If the custodian is able to demonstrate that the health information was not improperly accessed or used, based on the factors specified in the regulations, then the custodian is not required to provide notice to the Commissioner, Minister or individual.

  4. Notice to the Commissioner

    A custodian's notice to the Privacy Commissioner of Alberta must be made in writing in a form approved by the Commissioner and include prescribed, detailed information regarding the incident, the health information involved, the individuals affected, the number of individuals affected and the risk of harm to those individuals, the steps taken to reduce the risk of harm and future similar incidents, and the form of notification to affected individuals.

  5. Notice to the Minister

    A custodian's notice to the Alberta Minister of Health must be made in writing in a form approved by the Minister and include prescribed, detailed information regarding the incident, the health information involved, the individuals affected, the number of individuals affected and the risk of harm to those individuals, the steps taken to reduce the risk of harm and future similar incidents, and the form of notification to affected individuals.

  6. Notice to the Individual

    A custodian's notice to the individual who is the subject of the individually identifying health information must be made in writing and include prescribed, detailed information regarding the incident, the health information involved, the risk of harm to the individual, the steps taken to reduce the risk of harm, the steps the individual might take to reduce the risk of harm, and a statement that the individual may ask the Commissioner to investigate the incident and contact information for the Office of the Information and Privacy Commissioner of Alberta. If a custodian considers that giving notice to an affected individual could reasonably be expected to result in a risk of harm to the individual's mental or physical health, then the custodian may decide not to give notice to the individual, and in those circumstances the custodian must give notice to the Commissioner and explain the reasons for not giving notice to the individual.

  7. Affiliates' Notification Obligations

    An affiliate of a custodian (e.g. an individual employed by or performing services for a custodian or a health service provider who admits and treats patients at designated hospitals) must notify the custodian "as soon as practicable" following any "loss of individually identifying health information or any unauthorized access to or disclosure of individually identifying health information in the custody or control of the custodian". Unlike a custodian's notification obligations, there is no threshold "risk of harm" assessment for an affiliate's duty to notify a custodian following a loss of or unauthorized access to or disclosure of individually identifying health information in the custody or control of the custodian.

    An affiliate's notice to a custodian must be made in the form established by the custodian. If the custodian has not established any requirements for the form of notice, the notice must be made in writing and include prescribed, detailed information regarding the incident.

  8. Enforcement

    A custodian's failure to take reasonable steps "to maintain administrative, technical and physical safeguards" to protect against any "reasonably anticipated threat or hazard to the security or integrity" of health information or to comply with its breach notification obligations is an offence for which the custodian may be fined up to $50,000. Similarly, an affiliate's failure to comply with its breach notification obligations is an offence for which the affiliate may be fined up to $50,000.

Other Statutory Breach Notification and Reporting Obligations

The HIA joins a growing list of personal information protection and personal health information protection statutes nationwide that impose breach notification and reporting obligations. For example:

  • Ontario Personal Health Information Protection Act

    The Ontario Health Information Protection Act requires a health information custodian to notify an individual "at the first reasonable opportunity" if personal health information about the individual that is in the custody or control of the health information custodian is stolen, lost or used or disclosed without authority. The notice must contain a statement that the affected individual has the right to make a complaint regarding the breach to the Information and Privacy Commissioner of Ontario. A health information custodian must also notify the Commissioner in various circumstances.

  • New Brunswick Personal Information Privacy and Access Act

    The New Brunswick Personal Health Information Privacy and Access Act requires a health information custodian to notify the Commissioner and affected individuals if personal health information is stolen, lost, disposed of in a manner not permitted by legislation or disclosed to or accessed by an unauthorized person, unless the custodian reasonably believes that the theft, loss, disposition, disclosure or access of personal health information will not lead to the identification of the affected individual and will not have an adverse impact on the provision of health care or other benefits to the affected individual or on the affected individual's mental, physical, economic or social well-being.

  • Newfoundland Personal Health Information Act

    The Newfoundland Personal Health Information Act requires a health information custodian to notify an affected individual at the first reasonable opportunity if the individual's health information is stolen, lost, disposed of in a manner not permitted by legislation or disclosed to or accessed by an unauthorized person, unless the custodian reasonably believes that the theft, loss, unauthorized disposition or improper disclosure of the health information will not have an adverse impact on the provision of health care or other benefits to the affected individual, or the mental, physical, economic or social well-being of the affected individual. In addition, a custodian must notify the Information and Privacy Commissioner if the custodian reasonably believes that there has been a "material breach", based on consideration of prescribed circumstances, involving the unauthorized collection, use or disclosure of personal health information.

  • Nova Scotia Personal Health Information Act

    The Nova Scotia Personal Health Information Act requires a health information custodian to notify an affected individual at the first reasonable opportunity if the custodian reasonably believes that: (a) the individual's health information has been stolen, lost or subject to unauthorized access, use, disclosure, copying or modification; and (b) there is potential for harm or embarrassment to the individual. Notification to an individual is not required where the custodian reasonably determines that: (a) it is unlikely that a breach of the personal health information has occurred; or (b) there is no potential for harm or embarrassment to the individual as a result, provided that the custodian notifies the Privacy Review Officer as soon as possible of the custodian's determination.

  • Alberta PIPA

    The Alberta Personal Information Protection Act ("PIPA") provides that an organization that has personal information under its control must, without unreasonable delay, give notice to the Information and Privacy Commissioner of Alberta of any incident involving the loss of, or unauthorized access to, or disclosure of, personal information if a reasonable person would consider the incident to present a "real risk of significant harm" to the affected individual. PIPA does not define "significant harm", but the Commissioner's Mandatory Breach Reporting Tool suggests that the circumstances relevant to determining a real risk of significant harm under PIPEDA (discussed below) should be used in the assessment of whether a real risk of significant harm exists.

  • Federal PIPEDA

    Commencing November 1, 2018, the federal Personal Information Protection and Electronic Documents Act ("PIPEDA") will require an organization that suffers a "breach of security safeguards" involving personal information under its control to keep prescribed records of the breach and, if the breach presents a "real risk of significant harm to an individual", to promptly report the breach to the Privacy Commissioner of Canada and give notice of the breach to affected individuals and certain other organizations and government institutions. PIPEDA defines "significant harm" as including "bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property". PIPEDA provides that the circumstances relevant to determining whether a breach of security safeguards creates a real risk of significant harm include: (a) the sensitivity of the personal information involved in the breach; (b) the probability that the personal information has been, is being or will be misused; and (c) other prescribed factors (none of which are currently prescribed).

  • British Columbia and QuébecThe British Columbia and Québec personal information protection statutes currently do not impose breach reporting obligations, but the B.C. and Québec Privacy Commissioners have recommended that their respective statutes be amended to add those obligations. The B.C. and Québec Privacy Commissioners have also issued data incident response guidance that includes giving notice to affected individuals, the Privacy Commissioners and other organizations.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions