Electronic Health Records

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Electronic Health Records Legal Issues of
Privacy, Confidentiality and Security

• Contemporary Issues in Canadian Health Care

Nola M. Ries, MPA, LLM Adjunct Assistant
Professor, University of Victoria Research
Associate, Health Law Institute, University of
Alberta
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Objectives

• identify concerns about privacy, confidentiality
  and security of EHRs
• discuss relevant professional and legal issues
• highlight lessons learned from case studies

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Incentives to Invest in EHRs

• The value of electronic health records as
  tools to improve access, quality and
  comprehensiveness of care should be reinforced so
  that the public clearly understands the benefits
  and demands of their introduction.
• We recommend that providers, governments and the
  public jointly commit to the rapid adoption of
  these tools.
• (Health Council of Canada, Report to Canadians,
  2005)

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Concerns with EHRs

• issue of privacy, confidentiality and protection
  of personal health information in the context of
  an EHR system is perhaps the most sensitive one
  raised
• Currently, there is significant variation in
  privacy laws and data access policies across the
  country that poses a challenge for EHR systems
  that are dependent on inter-sectoral and
  inter-jurisdictional flows of personal health
  information.
• Senator Kirby, Senate Report on the Health of
  Canadians (2002)

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Privacy, Confidentiality Security

• Privacy ones right to control who has access to
  information about oneself
• Confidentiality a duty owed by one to preserve
  the secrets of another
• Security mechanisms put in place to safeguard
  privacy and ensure confidentiality is maintained

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Professional Duties

• Hippocratic oath
• Whatsoever I shall see or hear concerning the
  life of men, in my attendance on the sick, or
  even apart therefrom, which ought not to be
  noised abroad, I will keep silence thereon,
  counting such things to be as sacred secrets.

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Health Info Privacy Code

• right of privacy fundamental in a free and
  democratic society
• includes patient's right to determine with whom
  he or she will share information and to know of
  and exercise control over use, disclosure and
  access concerning any information collected about
  him or her
• right of privacy and consent are essential to
  trust and integrity of the patient-physician
  relationship.

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Legislative Developments

• public sector information and privacy laws
• health information laws
• Manitoba (1997)
• Alberta (2001)
• Saskatchewan (2003)
• Ontario (2004)
• private sector privacy laws

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Need for legal framework

• EHRs potentially conflict with privacy
  principles unless patients control how the record
  is shared and appropriate security measures are
  in place.
• A coherent legal framework to appropriately
  protect the privacy and confidentiality of
  personal health records is therefore an essential
  first step for successful EHRs
• Amanda Cornwall, Connecting Health A review of
  electronic health record projects in Australia,
  Europe and Canada (2003)

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Consent

• Should individual consent be required before
  information is included in EHR or disclosed
  through EHR?
• To be legally valid, consent generally must be
  informed
• Who will have access to info?
• For what purposes?
• What security mechanisms are in place?
• What are risks of unauthorized access?

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Saskatchewan HIPA

• comprehensive health records
• initially gave individuals right to refuse
  consent
• removed in 2003
• retain right to restrict access to comprehensive
  health record by giving written instruction

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Alberta HIA

• Section 59 required individual consent before
  information could be disclosed electronically
• authorization for custodian to disclose
• purpose for disclosure
• identity of recipient
• acknowledgement of reasons, risk, benefits
• date effective
• statement that consent may be revoked
• Removed in 2003

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Practical Experience

• in facilitating a province wide electronic
  health record, practical experience made it
  apparent that getting consent from Albertans was
  going to be difficult and costly
• not possible to inform people in a meaningful
  way of all the specific disclosures by electronic
  means, which might ever be made of their health
  information
• Frank Work, QC, Alberta Information Privacy
  Commissioner

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Australian Example

• patient consent required to include information
  in EHR
• pilot project in Tasmania (2004)
• many patients were not asked for consent
• identified need for simple consent process
• discussion about moving to presumed consent /
  opt-out model

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United Kingdom example

• National Health Service care record guarantee
  published May 2005
• consent for sharing patient information in EHR is
  generally presumed
• but You can choose not to have information in
  your electronic care records shared
• consistent with 2006 BMA statement

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Security Obligations

• maintain administrative, technical and physical
  safeguards to protect confidentiality and privacy
• measures to guard against risks associated with
  EHRs
• audit logs
• privacy impact assessments

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Conclusions

• benefits and risks of EHRs
• professional obligations
• ethical and legal
• patient rights
• consent and control
• achieving an appropriate balance