Canada: Amendments To Ontario's Personal Health Information Protection Act To Accommodate Ontario Health Teams
Health Bulletin

The Ontario government has amended the Personal Health Information Protection Act, 2004 ("PHIPA") to acknowledge the unique role of Ontario Health Teams.

Bill 106, the Pandemic and Emergency Preparedness Act, 2022 [PDF] ("Bill 106"), which received royal assent on April 14, 2022, adds a new regulation-making power relating to the collection, use and disclosure of personal health information by Ontario Health Teams. The regulations themselves have not yet been proposed, but Ontario Health Teams can expect future regulation will impact their health privacy practices.

The Ontario Health Team Model

Ontario Health Teams were introduced in 2019 as part of the provincial government's new collaborative model of health care delivery. Ontario Health Teams bring together various health care providers and organizations, such as hospitals, primary care physicians, home care providers and mental health services, as part of one integrated team.

One of the primary goals of the Ontario Health Team model is to coordinate providers and services so that patients receive more integrated care. The vision is that patients will transition seamlessly across different care providers and settings. Central to the success of this model is the ability to share patients' personal health information among team members.

Current PHIPA Regime for Ontario Health Teams

Currently, PHIPA does not directly address the type of information sharing that is necessary to realize a fully integrated model of health care delivery by Ontario Health Teams.

PHIPA generally requires that health information custodians obtain consent to disclose a patient's personal health information. PHIPA permits health information custodians to assume implied consent where disclosure is made to another health information custodian within the patient's "circle of care".

Ontario Health Teams may therefore assume implied consent to share personal health information among team members who are health information custodians and who are each involved in providing care to the patient to whom the information relates. However, team members who are health information custodians cannot assume implied consent to disclose personal health information to team members who are not health information custodians, such as home care providers or community support services.

Future Regulations to Accommodate Ontario Health Teams

The passage of Bill 106 means that Ontario Health Teams will soon receive regulatory direction relating to information sharing, which will enhance their authority to share personal health information among all team members. The regulations contemplated by Bill 106 are intended to assist Ontario Health Teams in planning and implementing service delivery, measuring and evaluating progress and patient outcomes, and improving the overall quality of services provided.¹

Specifically, Bill 106 introduces regulation-making powers relating to (1) the obligations of Ontario Health Teams surrounding their collection, use and disclosure of personal health information, and (2) access to medical records in electronic formats specified by Ontario Health.

1. Regulations Governing the Collection, Use and Disclosure of Personal Health Information

In 2019, PHIPA was amended to provide for future regulations relating to Ontario Health Teams, which would prescribe conditions on the collection, use and disclosure of personal health information by Ontario Health Teams.² To date, such regulations have not been made.

Now, Bill 106 has broadened this regulation-making power under PHIPA by providing that the Minister may make regulations governing:

• under what circumstances Ontario Health Teams may collect, use and disclose personal health information;
• conditions that apply to the collection, use and disclosure of personal health information by Ontario Health Teams;
• security requirements, records retention, information practices and rules for access and correction for personal health information held by Ontario Health Teams;
• disclosures of personal health information that may be made by a health information custodian or other person to an Ontario Health Team; and
• the collection, use, and disclosure of personal health information by persons or entities which used to be designated as an Ontario Health Team, but no longer are.

Bill 106 clarifies that any regulations that govern the circumstances under which Ontario Health Teams may collect, use and disclose personal health information will apply not just to persons or entities currently designated as an Ontario Health Team under the Connecting Care Act, 2019, but also to persons or entities that have not yet been designated as an Ontario Health Team but that have received written authorization to use the title "Ontario Health Team".

Granting aspiring Ontario Health Teams the authority to collect, use and disclose personal health information, subject to the conditions prescribed in the regulations, may expand their ability to conduct the planning and analysis necessary to become a designated Ontario Health Team.

2. Regulations Governing Access to Health Records in Electronic Format

Section 52(1.1) of PHIPA currently provides individuals with the right to access their records of personal health information in the electronic format specified in the regulations. Ontario Regulation 393/22, which comes into force on July 1, 2022, specifies that individuals have the right to have their health records provided to them in a PDF file or in any other electronic format that is agreed to by the health information custodian and the individual, such as a portal.

Bill 106 introduces an additional method for specifying electronic formats. Ontario Health - the central agency that oversees much of the administration of the province's health care system, including Ontario Health Teams - has been given the authority to specify other electronic formats in which individuals may request to receive their health records.

While it remains to be seen which electronic format(s) Ontario Health may specify, this amendment is consistent with the integrated model of care adopted by Ontario Health Teams, which supports the development of shared electronic medical records and secure and timely patient access to such records.

Looking Forward

The regulatory landscape governing Ontario Health Teams continues to evolve. Once the PHIPA regulations contemplated by Bill 106 are made, Ontario Health Teams will need to assess their existing health privacy practices and confirm they align with any new requirements. Hopefully, these regulations will provide clearer guidance to Ontario Health Teams on their authority to collect, use and disclose personal health information.

Footnotes

1. Government of Ontario, Proposed legislative update to the Personal Health Information Protection Act, 2004 (PHIPA) - Ontario Health Teams (OHTs) - Enhancing Data Sharing to be included in the Pandemic and Emergency Preparedness Act, 2022 (March 29, 2022).

2. Bill 138, Plan to Build Ontario Together Act, 2019.

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.