Health Information Protection Act: A Major Step in Healthcare Privacy

1
Health Information Protection Act A Major Step
in Healthcare Privacy

• Ann Cavoukian, Ph.D.
• Information Privacy Commissioner/Ontario
• Health Privacy Seminar Program
• Riley Information Services, Ottawa
• September 17, 2004

2
Health Privacy is Critical

• The need for privacy has never been greater
• Extreme sensitivity of personal health
  information
• Patchwork of rules across the health sector with
  some areas currently unregulated
• Increasing electronic exchanges of health
  information
• Multiple providers involved in health care of an
  individual need to integrate services
• Development of health networks
• Growing emphasis on improved use of technology,
  including computerized patient records

3
Legislation is Critical

• The IPC has been calling for legislation to
  protect health information since its inception in
  1987
• Dates back to Justice Krevers 1980 Report on the
  Confidentiality of Health Information
• The Commission documented many cases of
  unauthorized access to health files maintained by
  hospitals and the Ontario Health Insurance Plan
• The Report called for comprehensive health
  privacy legislation at that time

4
Provincial Health Privacy Laws

• Alberta
• Health Information Act
• Manitoba
• Personal Health Information Act
• Québec
• Act respecting access to documents held by public
  bodies and the protection of personal information
• Act respecting the protection of personal
  information in the private sector.
• Saskatchewan
• Health Information Protection Act

5
Ontarios Personal Health Information Protection
Act (PHIPA)

• Comes into effect November 1, 2004
• Schedule A the Personal Health Information
  Protection Act (PHIPA)
• Schedule B the Quality of Care Information
  Protection Act (QOCIPA)

6
PHIPA Based on Fair Information Practices

• Accountability
• Identifying Purposes
• Consent
• Limiting Collection
• Limiting Use, Disclosure, Retention
• Accuracy

• Openness
• Individual Access
• Safeguards
• Challenging Compliance

7
Scope of PHIPA

• Health information custodians (HICs) that
  collect, use and disclose personal health
  information (PHI)
• Non-health information custodians where they
  receive personal health information from a health
  information custodian (use and disclosure
  provisions)

8
Health Information Custodians

• Definition includes
• Health care practitioner
• Hospitals and independent health facilities
• Homes for the aged and nursing homes
• Pharmacies
• Laboratories
• Home for special care
• A centre, program or service for community health
  or mental health

9
PHIPA Practices

• Must take reasonable steps to ensure accuracy
• Must maintain the security of PHI
• Must have a contact person to ensure compliance
  with Act, respond to access requests, inquiries
  and complaints from public
• Must have information practices in place that
  comply with the Act
• Must make available a written statement of
  information practices
• Must be responsible for actions of agents

10
PHIPA Consent

• Consent-based law
• Consent is required for the collection, use,
  disclosure of PHI, subject to specific exceptions
• Consent may be express or implied

11
Implied Consent

• custodians may imply consent when disclosing
  personal health information to other custodians
  for the purpose of providing health care to the
  individual
• (within the circle of care)
• exception if the individual expressly withholds
  or withdraws consent (lock box)

12
Express Consent

• required when a health information custodian
  discloses to a non-custodian
• required when a custodian discloses to another
  custodian for a purpose other than providing
  health care to the individual

13
Checks on the Lock Box

• Notification if the custodian who discloses
  believes that all information necessary for the
  the provision of health care has not been
  disclosed, the custodian must notify the
  recipient
• Override the custodian may disclose if
  disclosure is necessary to eliminate or reduce a
  significant risk of serious bodily harm to a
  person or a group of persons

14
Delayed Implementation of the Lock Box

• public hospitals have until November 1, 2005 to
  implement the lock box

15
Collection, Use and Disclosure Without Consent

• Derogations from the consent principle are
  allowed in limited circumstances.
• As required by law
• To protect the health or safety of the individual
  or others
• To identify a deceased person or provide
  reasonable notice of a persons death

16
Meaningful Notices and Consent Forms

• Notices and consent forms must be concise and
  understandable to be effective
• PIPEDA notices and consents used by some health
  professionals are lengthy, confusing and
  counterproductive
• Use Notices to educate and inform patients, not
  as an exercise in legal drafting

17
Right of Access and Correction

• PHIPA Expands and Codifies the Common-Law Right
  of Access
• Right of access to all records of personal health
  information about the individual in the custody
  or control of any health information custodian
  (some exceptions)
• Provides right to correct their records of
  personal health information (some exceptions)

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Access

• custodian must make the record available or
  provide a copy, if requested
• custodian must respond to request within 30 days,
  with a possible 30 day extension
• custodian must take reasonable steps to be
  satisfied of the individuals identity
• custodian must offer assistance in reformulating
  a request that lacks sufficient detail

19
Expedited Access

• custodian must provide expedited access if the
  individual requests it and provides evidence that
  the information is needed urgently and the
  custodian is reasonably able to respond within
  the requested time frame

20
How to Correct Records

• by striking out the incorrect information in a
  manner that does not obliterate it or
• by labeling the information as incorrect and
  severing it from the record, while maintaining a
  link to the record or
• if the correction cannot be recorded in the
  record, the custodian must ensure there is a
  practical system to inform persons accessing the
  record that the information is incorrect and
  where to obtain correct information

21
Notice of Correction

• at the request of the individual, the custodian
  must give written notice of the requested
  correction, to the extent reasonably possible, to
  persons to who the custodian has disclosed the
  information
• exception if the correction cannot be
  reasonably expected to have an effect on the
  ongoing provision of health care or other benefits

22
Statement of Disagreement

• if the custodian refuses a correction request,
  the individual is entitled to require the
  custodian to attach to the record a statement of
  disagreement prepared by the individual
• custodian must make reasonable efforts to notify
  anyone who would have been notified if there was
  a correction

23
Strengths of PHIPA

• Implied consent for sharing of personal health
  information within circle of care
• Creation of health data institute to address
  criticism of directed disclosures
• Open regulation-making process to bring public
  scrutiny to future regulations
• Adequate powers of investigation to ensure that
  complaints are properly reviewed

24
Oversight and Enforcement

• Office of the Information and Privacy
  Commissioner is the oversight body
• IPC may investigate where
• A complaint has been received
• Commissioner has reasonable grounds to believe
  that a person has contravened or is about to
  contravene the Act
• IPC has powers to enter and inspect premises,
  require access to PHI and compel testimony

25
Powers of the Commissioner

• After conducting an investigation, the
  Commissioner may issue an order
• To provide access to, or correction of, personal
  health information
• To cease collecting, using or disclosing personal
  health information in contravention of the Act
• To dispose of records collected in contravention
  of the Act
• To change, cease or implement an information
  practice

26
Role of IPC under PHIPA

• Use of mediation and alternate dispute resolution
  always stressed
• Order-making power used as a last resort
• Conducting public and stakeholder education
  programs education is key
• Comment on an organizations information practices

27
Stressing the 3 Cs

• Consultation
• Opening lines of communication with health
  community and HICs
• Co-operation
• Rather than confrontation in resolving complaints
• Collaboration
• Working together to find solutions

28
Getting Ready

• FAQs posted to IPC website in August, 2004
• User Guide posted to IPC website in September,
  2004
• IPC member of OHA/OMA/IPC/MOHLTC tool kit project
• IPC/OBA short notices working group
• On-going meetings with regulated health
  professions

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How to Contact Us

• Commissioner Ann Cavoukian
• Information Privacy Commissioner/Ontario
• 80 Bloor Street West, Suite 1700
• Toronto, Ontario M5S 2V1
• Phone [phone]
• Web www.ipc.on.ca
• E-mail commissioner_at_ipc.on.ca