www.ipc.on.ca health information protection act an overview ann cavoukian, ph.d. information &...
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www.ipc.on.ca
Health Information Protection Act
An Overview
Ann Cavoukian, Ph.D.Ann Cavoukian, Ph.D.Information & Privacy Commissioner/Ontario
Ontario Health Records Association
May 7, 2004
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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
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Unique Characteristics of Personal Health Information
Highly sensitive
Collected in the context of a publicly-funded health care system
Widely shared among a range of health care providers for the benefit of the individual
Widely used and disclosed for secondary purposes that are seen to be in the public interest (e.g., research, planning, fraud investigation, quality assurance)
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Legislation is Critical
The IPC has been calling for legislation to protect health information since its inception in 1987
• Dates back to Justice Krever’s 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
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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
Provincial Health Privacy Laws
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Numerous attempts made over the years to get a bill introduced and passed, but have never succeeded
• Bill 159 – Personal Health Information Privacy Act, 2000
• Privacy of Personal Information, 2002
Ontario Bills of the Past
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PHIPA – Bill 159
On December 7, 2000, the government introduced Bill 159
Concerns about the Bill:
• Directed Disclosures
• Extensive use of Regulations
• Lack of full investigation powers
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Privacy of Personal Information Act
Ontario issued a draft bill in 2002 that applied to all non-public sector organizations
Created special rules for health sector
MCBS consulted with stakeholders to refine aspects of the draft bill
Unfortunately this draft bill was never introduced
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If No Provincial Health Legislation?
If Ontario fails to enact its own legislation, PIPEDA takes effect:
• Only commercial entities covered - ambiguity about who is in and who is out
• Not tailored to meet the needs of the health sector
• Principle-based approach rather than specifics could result in inconsistent implementation
• Oversight left to the federal Privacy Commissioner
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Ontario’s Health Information Protection Act, 2003 (HIPA)
Ontario government introduced health privacy bill (Bill 31) on December 17, 2003
Referred to the Standing Committee on General Government, which held public hearings and clause-by-clause study
Received Second Reading on April 8, 2004
Expected to come into effect January 1, 2005
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Bill 31 – Two parts
Schedule A – the Personal Health Information Protection Act (PHIPA)
Schedule B – the Quality of Care Information Protection Act (QOCIPA)
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Bill 31 – Based on Fair Information Practices
AccountabilityIdentifying PurposesConsentLimiting CollectionLimiting Use,
Disclosure, RetentionAccuracy
SafeguardsOpennessIndividual AccessChallenging
Compliance
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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)
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Health Information Custodians
Definition includes:• Health care practitioners • Hospitals and independent health facilities• Homes for the aged and nursing homes• Pharmacies• Laboratories• Homes for special care• A centre, program or service for community
health or mental health
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PHIPA Practices
Must take reasonable steps to ensure accuracy Must maintain the security of PHI in its custody or controlMust have a contact person to ensure compliance with Act,
respond to access requests, inquiries and complaints from publicMust have information practices in place that comply with the
ActMust make available a written statement Must be responsible for actions of agents
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PHIPA Consent
Consent is required for the collection, use, disclosure of PHI subject to specific exceptions
Consent must be a consent of the individual be knowledgeable relate to the information not be obtained through deception or coercion
Consent may be express or implied
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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 person’s death
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Patient Access to Records
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 custodians
Provides right to correct their records of personal health information.
Recognizes special factors surrounding health information by allowing for incorrect information to be struck out without obliterating the original record.
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Oversight and Enforcement
Office of the Information and Privacy Commissioner is the oversight body
IPC may appoint an Assistant Commissioner for Personal Health Information
IPC may investigate where:A complaint has been receivedCommissioner 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
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Strengths of PHIPA
Creation of health data institute to address criticism of “directed disclosures
Open regulation-making process to bring public scrutiny to future regulations
Implied consent for sharing of personal health information within circle of care
Adequate powers of investigation to ensure that complaints are properly reviewed
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Role of the IPC
IPC currently has oversight of two lawsProvincial Freedom of Information and Protection of
Privacy ActMunicipal Freedom of Information and Protection of
Privacy Act
IPC may issue orders for access/correction appeals
IPC investigates privacy complaints and may issue report with recommendations but not orders
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Access and Correction Appeals
Appeals under current public sector laws may be dealt with through three stages:
IPC will examine situation and may contact individual or organization for more information (Intake)
If not dismissed, the appeal proceeds to mediation, the IPC’s preferred method of dispute resolution
If mediation is unsuccessful, appeal proceeds to adjudication and an order will be issued.
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Privacy Complaints
IPC goal in dealing with complaints under public sector legislation is to assist organizations in taking whatever steps are necessary to prevent future occurrences
Intake staff attempt to resolve complaints informally, through liaising with organization and complainant
If not resolved, complaint goes to the investigation stage and a mediator investigates
Mediator prepare a report, including recommendations
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Role of IPC under PHIPA
Use of mediation and alternative dispute resolution to be stressed
Order-making power as a last resort
Conducting public and stakeholder education programs
Comment on an organization’s information practices
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Stressing the 3 C’s
Consultation• Opening lines of communication with health community
Collaboration• Working together to find solutions
Co-operation• Rather than confrontation in resolving complaints
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Making Health Privacy Work
Think beyond compliance with legislation Use technology to help protect personal health
information: • Build privacy right into design specifications
• Minimize collection and routine use of personally identifiable information – use aggregate or coded information if possible
• Use encryption where practicable
• Think about using pseudonymity, coded data
• Conduct privacy impact assessments
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Lessons from Chatham-Kent
Use of encryption to secure databases
Investigate privacy-enhancing technologies to shield personal health information from systems administrators
Conduct an end-to-end privacy impact assessment (PIA)
Conduct independent security audits
Privacy Review: Chatham-Kent IT Transition Pilot Project
• www.ipc.on.ca/english/pubpres/reports/042202.pdf
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Lessons From UHNPrivacy Assessment
Strong Privacy Policy
Real Consequences for Breaches
Ongoing Privacy Training• Incorporate privacy training into undergraduate
curriculum for medical students
Independent Security and Privacy Audits
www.ipc.on.ca/english/pubpres/reports/073002.pdf
www.ipc.on.ca
How to Contact UsHow to Contact Us
Commissioner Ann CavoukianCommissioner Ann CavoukianInformation & Privacy Commissioner/Ontario
80 Bloor Street West, Suite 1700
Toronto, Ontario M5S 2V1
Phone: (416) 326-3333
Web: www.ipc.on.ca
E-mail: [email protected]
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Alternatives to Investigation
Prior to investigating a complaint, the Commissioner may:Inquire as to other means used by individual to
resolve complaintRequire the individual to explore a settlementAuthorize a mediator to review the complaint and
try to settle the issue
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Decision Not to Investigate
Commissioner may decide not to investigate a complaint where:An adequate response has been provided to the
complainantComplaint could have been dealt with through
another procedureComplainant does not have sufficient personal
interest in issueComplaint is frivolous, vexatious or made in bad
faith
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Powers of the Commissioner
After conducting an investigation, the Commissioner may issue an orderTo provide access to, or correction of, personal health
informationTo cease collecting, using or disclosing personal health
information in contravention of the ActTo dispose of records collected in contravention of the ActTo change, cease or implement an information practice
Orders, other than for access or correction, may be appealed on questions of law
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Offences and Penalties
Creates offences for contravention of the legislation, including:wilfully collecting, using or disclosing PHI in
contravention of the Act;once access request made, disposing of a record of
personal information in an attempt to evade the request wilfully failing to comply with an order made by the
IPC
Maximum penalty of $50,000 for an individual and $250,000 for a corporation
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Action for Damages
An individual affected by an IPC order may bring an action for damages for actual harm suffered
Where the harm suffered was caused by a willful or reckless breach, the compensation may include an award not exceeding $10,000 for mental anguish
No action for damages may be instituted against a HIC for anything done in good faith or any alleged neglect or default that was reasonable in the circumstances