PIPEDA and the Health Care Sector

1
PIPEDA and the Health Care Sector

• Riley Information Services
• September 17, 2004
• Carman Baggaley
• Office of the Privacy Commissioner of Canada

Office of the Commissariat Privacy
Commissioner à la protection de of Canada la
vie privée du Canada
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Objectives

• Debunk myths about PIPEDA
• PIPEDA and health care sector then and now
• Outline OPCs position on PIPEDA and the health
  care sector

3
A Year Ago

• Anxiety among health care providers about
  application of the Act as of Jan 1, 2004
• Active lobbying to amend the Act
• OHA/OMA letter to Ministers Rock and McLellan
• Provl/Terrl DMs of Health asked for a
  carve-out
• CMA letter to Minister Rock

4
Anxiety

• Application of PIPEDA to the health sector in
  Ontario will seriously diminish the ability of
  hospitals and physicians to deliver patient
  care. OMA/OHA
• Our concern is that it would bring the system to
  a grinding halt College Registrar
• If youd like the provinces to add 2,000 to
  3,000 positions nationally whose only job it is
  to get consent, thats fundamentally dumb
  provincial deputy minister

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Sarcasm

• P Problems
• I Indifference
• P Procrastination
• E Elitism
• D Despair
• A Agony
• - Presentation to OHA Conference, December 2003

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Federal Response

• Concerns were understandable
• assumption that express consent would be required
• concerns about time and opportunity cost to
  obtain express consent
• belief that quality of care would be affected
• A federal consensus OPC, Justice, Health and
  Industry emerged on the application of the Act
  to the health care sector

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OPC Goals

• Acknowledge concerns about PIPEDA
• Work with stakeholders to address concerns
• Communicate our position on the application of
  Act to health care sector
• Make implementation as painless as possible

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The OPC PositionWhat does it say?

• Addresses two broad issues
• Scope of the application to what parts of the
  health care sector does the Act apply?
• Consent requirements what form of consent is
  required and when?

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Application

• Offices of health care providers are engaged in a
  commercial activity and thus subject to the Act
• The scope of the Act does not extend to the core
  activities of hospitals, i.e., patient care and
  treatment

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Scope Hospitals

• Why not hospitals?
• Provincially funded hospitals an integral part of
  provincial health care system
• Act does not readily extend to the MUSH
  municipalities, universities, schools and
  hospitals sector
• Scope of the Trade and Commerce power

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Scope Hospitals

• A single commercial transaction, e.g., charging
  for a private room, does not trigger the Act
• Non-core activities treatment may be captured if
  commercial and if personal information is
  involved
• Act does not apply to fundraising activities
  except for sale/barter of mailing/donor lists

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Consent

• The Act requires that consent be based on
  knowledge of purposes of collection
• Providers must make patients aware of purposes of
  collection, uses and disclosures orally,
  notices, brochures etc.
• Implied consent, based on awareness, acceptable
  within circle of care

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Consent

• Express consent for uses or disclosures that a
  patient would not reasonably expect
• PIPEDA permits uses and disclosures without
  consent for statistical, or scholarly study or
  research, purposes under certain circumstances
  consent impracticable

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The OPC PositionImplications

• Personal information can move within the circle
  of care based on implied consent largely
  reflects current practice
• More effort needed to make patients aware of uses
  and disclosures, right of access
• Traditional provider-patient relationship should
  not change significantly
• Hospitals effectively exempt

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PARTS

• Privacy Awareness Raising Tools
• Health Canada, Industry Canada, Justice and OPC
  worked with health care providers and others to
  develop guidance material
• 75 Qs As on Industry Canada web site -
  http//e-com.ic.gc.ca/epic/internet/inecic-ceac.ns
  f/en/gv00235e.html

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Now

• Health care system has not ground to a halt
• Health sector complaints as of August 31, 2004,
  34 in total
• 9 involving professional providers
• 16 against pharmacies/Internet pharmacies
• 3 against labs
• 6 others

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Conclusions

• Grey areas remain around the edges
• Committed to working with federal, provincial and
  territorial counterparts
• Supportive of general intent of the Pan-Canadian
  Health Information Privacy Framework
• Review of PIPEDA in 2006

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• Carman Baggaley
• cbaggaley_at_privcom.gc.ca