Health Information Protection Act An Overview

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Health Information Protection ActAn Overview

• Ann Cavoukian, Ph.D.
• Information Privacy Commissioner/Ontario
• Ontario Health Records Association
• May 7, 2004

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Ontarios Health Information Protection Act, 2003
(HIPA)

• Ontario government introduced health privacy bill
  (Bill 31) on December 17, 2003
• Standing Committee on General Government held
  public hearings and completed clause-by-clause
  study
• Received Second Reading on April 8, 2004
• Second clause-by-clause review completed April
  18, 2004
• Expected to come into effect November 1, 2004

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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

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

• Safeguards
• Openness
• Individual Access
• Challenging 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 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

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Records Management General 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/correction 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

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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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Knowledgeable Consent

• Consent is knowledgeable if it is reasonable in
  the circumstances to believe that the individual
  knows
• the purpose, and
• that the individual may provide or withhold
  consent
• can imply consent if the custodian posts a notice
  or describes the purpose in a brochure

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Meaningful 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 and consents to educate and inform
  patients, not as an exercise in legal drafting

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Express Consent

• required when a 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

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Implied Consent

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

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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

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Delayed Implementation of the Lock Box

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

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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 persons death

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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

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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

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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

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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

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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

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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

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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 laws
• Provincial Freedom of Information and Protection
  of Privacy Act
• Municipal 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

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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 IPCs 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 organizations information practices

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Stressing the 3 Cs

• 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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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