Moving in the right direction

Lisa R. Lifshitz
On June 10, the Ontario government announced it would be introducing new legislation this fall to address perceived shortcomings in the Personal Health Information Protection Act, which governs the protection of personal health information in Ontario.

According to the press release, these amendments will include:

•    Increasing accountability and transparency by making it mandatory to report privacy breaches to the Information and Privacy Commissioner and, in certain cases, to relevant regulatory colleges (presently, PHIPA provides a health information custodian that has custody or control of personal health information about an individual that has an obligation to only notify the individual at the first reasonable opportunity if the information is stolen, lost, or accessed by unauthorized persons, not the IPC);

•    Strengthening the process to prosecute offences under PHIPA by removing the requirement that prosecutions must be commenced within six months of the alleged privacy breach;

•    Further discouraging “snooping” into patient records by doubling the fines for offences from $50,000 to $100,000 for individuals and from $250,000 to $500,000 for the organization; and

•    Clarifying the authority under which health care providers may collect, use, and disclose personal health information in electronic health records.

PHIPA presently states that a health information custodian (fairly broadly defined as any person or organization that has custody or control of personal health information as a result of, or in connection with, performing the person’s or organization’s powers or duties or certain work as described in the act and include health care practitioners, hospitals, long-term care homes, retirement homes, pharmacies, laboratories, ambulance services, community health care centres) shall not collect, use, or disclose personal health information about an individual unless:

(a) It has the individual’s consent under this act and the collection, use, or disclosure, as the case may be, to the best of the custodian’s knowledge, is necessary for a lawful purpose; or

(b) The collection, use, or disclosure, as the case may be, is permitted or required by this Act.

PHIPA also obliges a health information custodian to take steps that are “reasonable in the circumstances” to ensure personal health information in their custody or control is protected against theft, loss, and unauthorized use or disclosure and to ensure records containing the information are protected against unauthorized copying, modification, or disposal.  

Unfortunately, health information custodians in Ontario have not always been able to live up to these requirements and it is fairly clear these proposed changes have been spurred on by a series of serious health information data breaches that seem to show Ontario is losing ground in protecting individual’s health information privacy.

At the press conference announcing the new measures, Health Minister Eric Hoskins frankly acknowledged that over the year, there have been a series of high-profile data breaches in hospital environments. While he was no doubt referring to the fact that since his cancer diagnosis, former Toronto mayor Rob Ford has had his medical records breached four times in four different hospitals, in fact data breaches involving patient information in Ontario have gone back much further than this, evidencing that institutions have been having difficulty meeting their legal requirements to protect this data.

The Toronto Star has reported on a case involving an anti-abortion activist fired from Peterborough Regional Health Centre in 2011, who had snooped into the files of 201 abortion patients, inappropriately accessing the records 414 times. She was ultimately fired along with six other employees amid a massive privacy breach that occurred between 2011 and 2012.

In May, a Sault Ste. Marie nurse was suspended for 90 days by the College of Nurses of Ontario after she accessed 338 patient records. The week before, the college began a disciplinary hearing for a Peterborough nurse alleged to have accessed about 300 records. Both nurses were fired but neither is facing charges under PHIPA. To date, there have not been any successful prosecutions under PHIPA.

However, one of the largest data breaches in Ontario involving patient information that clearly helped spur the recent PHIPA amendments was unveiled Dec. 16, 2014 when the IPC issued an order confirming that Rouge Valley Health System had failed to protect the personal information of patients.

PHIPA explicitly states that a health information custodian shall not collect, use, or disclose personal health information about an individual for marketing anything or for market research unless the individual expressly consents and the custodian collects, uses, or discloses the information, as the case may be, subject to the prescribed requirements and restrictions, if any. But that is exactly what was happening at this institution.

Rouge Valley had previously reported two separate breaches of patient privacy in September 2013 and April 2014 involving allegations two hospital employees used and/or disclosed the personal health information of mothers for the purposes of selling or marketing RESPs or for the purpose of selling the personal health information to an RESP sales agent who in turn was selling or marketing RESPs to patients.

As a result, the hospital was obliged to notify more than 14,000 current and former patients at two sites, all of whom may have been affected by the actions of the two employees. Unfortunately, the hospital had to notify all of these individuals because it was unable to identify which ones were actually affected.

Rouge Valley had used electronic information systems to facilitate the provision of health care to its patients and the IPC found it had not implemented the measures necessary to ensure it was able to audit all instances where agents access personal health information on its electronic information systems, including the selection of patient names on the patient index of its electronic information system.

By way of only one example, user activity logs for a period longer than 14 days. This meant that the hospital was unable to conduct any audits of user activities within the scheduling module that occurred more than two weeks prior. The service level agreement between the hospital and its hosting provider, another hospital, did not include a requirement for the provider to ensure user activity logs generated by the hospital’s users were archived and available for auditing purposes.

The IPC required Rouge Valley to improve its practices in myriad ways, including:
(i)    Reviewing and amending its service level agreement with the hosting provider to clarify the responsibility for the creation, maintenance, and archiving of user activity logs generated by the hospital’s use of its electronic system, and ensure the user activity logs are available for audit purposes; and
(ii)    Working with their software provider, develop a solution that will limit the search capabilities and search functionalities of the hospital’s electronic information system so agents are unable to perform open-ended searches for personal health information about individuals and can only perform searches based on the following criteria: health number, medical record number, encounter number, or exact first name, last name, and date of birth.

Additionally, Rouge Valley was also required by the IPC to:
(i)    Review and revise its privacy audits policy, the pledge of confidentiality policy and the pledge of confidentiality, and the privacy advisory in accordance with the IPC’s comments and findings and take steps to ensure that it complies with the privacy audits policy;
(ii)    Develop a privacy training program policy, a privacy awareness program policy, and a privacy breach management policy; and
(iii)    Immediately review and revise its privacy training tools and materials in accordance.

Rouge Valley was also obliged to immediately conduct privacy training for all agents in clerical positions in the hospital and conduct privacy training for all other agents by the middle of this month. Rouge Valley is obliged to provide the IPC with proof of compliance with all of its order provisions by Sept. 16.

As the province has not yet disclosed the actual proposed language for the PHIPA revisions, it remains to be seen whether they can live up to the Ministry of Health and Long-Term Care’s promise that these measures will “improve privacy and accountability” in Ontario.

While these measures cannot single-handedly stop rogue employees, contractors, or agents from breaching individuals’ personal health information, I believe the province is moving in the right direction by making the act of doing so more expensive, assuming the police and the attorney general are willing to act decisively, laying charges and actively pursuing and prosecuting these violations. If so, these measures may have the deterrent effect needed to better protect personal health information in Ontario and spur non-compliant health information custodians, including hospitals, to take those additional and necessary measures to meet oversight, technology, and audit requirements.

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