Canada: Reporting PHIPA Breaches To Affected Individuals And The Information And Privacy Commissioner: A Primer

Under Ontario's Personal Health Information Protection Act (PHIPA), hospitals and other health information custodians (HICs) are potentially subject to a number of requirements when confronted with a privacy breach. When PHIPA was first enacted, these requirements focused primarily on remediating the breach and notifying the affected patient. Now, however, HICs must report certain individual PHIPA breaches to the Information and Privacy Commissioner of Ontario (IPC). In addition, starting in 2019, they will also be required to provide annual reports on breaches. Of note, the circumstances in which these different reporting obligations are triggered can vary; the deadlines for making the reports are not uniform; and the required content for the reports differ. All of this can be confusing. This article provides a brief summary of these different reporting obligations to help HICs better understand their obligations under PHIPA.

Reporting a breach to an affected individual

The obligation to notify an affected individual about a breach has been in force for some time.  It requires an HIC to notify an individual if personal health information about the individual "is stolen or lost or if it is used or disclosed without authority". By "used," PHIPA appears to mean "viewed" or "handled" as well. The specific requirements surrounding this reporting obligation are as follows:

  • When: PHIPA does not impose a specific deadline for notification, though it does require that the notification be carried out "at the first reasonable opportunity". Guidance materials issued by the IPC urge that an HIC that has contacted law enforcement authorities should first speak with those authorities about whether to delay notification in order not to impede a criminal investigation.
  • How: PHIPA does not mandate a certain form of notification, though IPC guidance materials urge that the notification generally be direct (by phone, letter, or in person) and that indirect notification (by website, posted notices, etc.) would be appropriate only in certain circumstances.
  • What to include: PHIPA itself says little about the required content for such a notification, except that it should inform the affected individuals of their right to make a complaint with the IPC. However, the guidance materials instruct HICs to also include:
    • the date of the breach;
    • a description of the nature and scope of the breach;
    • the name of the agent responsible for the unauthorized access where appropriate;
    • a description of the information involved;
    • steps taken to control or reduce the harm;
    • steps planned to be taken to prevent further breaches;
    • steps the individual can take to enhance personal protection; and,
    • contact information for someone in the organization who can answer additional questions.

The guidance documents also offer sample language that can be added to a notification letter in a matter involving financial information or health card numbers.

Reporting a breach to the IPC: annual reports and ongoing breach-specific reports

In addition, PHIPA now establishes two separate sets of requirements to report breaches to the IPC, the newer of which is the annual reporting requirement, which will come into effect in 2019. The same types of incidents about which the HIC must notify affected individuals are the ones that the HIC must include in its annual report — that is, incidents in which personal health information was stolen, lost, or used or disclosed without authority. The specific requirements for the annual report are as follows:

  • When: The report is due on or before March 1 of each year, commencing on March 1, 2019. Each report will set forth the required information in respect of the previous calendar year (in other words, the report that each HIC will file between January 1 and March 1, 2019 will address breaches that took place during calendar year 2018).
  • How: The report will be submitted electronically, though the e-form is not presently available.
  • What to include: The IPC has issued a guidance document that indicates that the following information will be required in each annual report:
    • For cases involving stolen information: the total number of such cases; the number of cases involving theft by an internal party, theft by a stranger, theft via ransomware attack, theft via other cyberattack, theft of an unencrypted portable device, theft of paper records; the numbers of individuals affected.
    • For cases involving lost information: the total number of such cases; the number of cases involving loss due to ransomware attack, loss due to other cyberattack, loss of an unencrypted portable device, loss of paper records; the numbers of individuals affected.
    • For cases involving information used (e.g., viewed, handled) without authority: the total number of such cases; the number of cases involving unauthorized use through electronic systems and unauthorized use through paper records; the numbers of individuals affected.
    • For cases involving information disclosed without authority: the total number of such cases; the number of cases involving unauthorized disclosure through misdirected faxes and unauthorized disclosure through misdirected e-mails; the numbers of individuals affected.

Additionally, a separate IPC reporting obligation applies to individual breaches that meet a particular severity threshold. HICs must report these breaches to the IPC on an ongoing basis throughout the year, and in more detail than is needed for the purpose of the annual report. Because only certain breaches will be subject to this requirement, the number of breaches reported individually to the IPC under this provision will be smaller than the total number of breaches reported in the annual IPC breach report discussed above.

Breaches must be reported to the IPC individually if the following conditions are met:

  • The HIC has reasonable grounds to believe that the information was used or disclosed without authority by a person who knew or ought to have known that he or she was acting without authority (for example, an accidentally mis-delivered fax would not meet this requirement, but a case of deliberate "chart snooping" would);
  • The HIC has reasonable grounds to believe that the information was stolen;
  • The HIC has reasonable grounds to believe that the information, after being initially lost or used or disclosed without authority, was or will be further used or disclosed without authority;
  • The HIC is required to give notice of the incident to a College under the Regulated Health Professions Act (the requirements for notice to the College are articulated elsewhere in PHIPA and are not summarized here); or
  • The HIC determines that the incident is "significant" after considering "all relevant circumstances" including the sensitivity of the information, the volume of the information, the number of affected individuals, and whether more than one HIC or HIC agent was responsible for the incident.

The specific requirements for the individual breach report to the IPC are as follows:

  • When: Though PHIPA is silent as to the timing of the report, it would be prudent to notify the IPC reasonably soon after concluding that a report is required, based on the circumstances outlined above. The online breach report form expressly acknowledges that at the time the breach is reported, the investigation, containment, and remediation of the breach may not be completed, and asks that the HIC provide as much of the requested information as is presently known.
  • How: The individual breach report is to be completed and submitted electronically.
  • What to include: The online form requests information about the breach incident itself (what happened, how it was discovered, the dates of the breach and its discovery, the nature of the information, the number of affected individuals, how many agents of the HIC and how many other HICs were involved in the breach); containment (steps taken by or at the direction of the HIC to contain the breach, the date of such steps and their outcome); breach notification (date, method, content of notification); and investigation and remediation/prevention steps.

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
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
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