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Law Times • augusT 24/31, 2009 FOCUS Ontario can look to B.C. for help in creating system E-health poses privacy challenges BY I. JOHN HARVEY For Law Times a great idea. We eliminate a lot of paperwork, speed up health- care delivery, and create a data- base that can be analyzed to de- duce the most efficient method for allocating system resources in real time. The road to that Utopia, O however, is a rocky path fraught with physical, virtual, and legal challenges. The simple explanation — putting patient health records onto computer systems so that clinicians can access medical his- tories and lab tests anywhere they have Internet access — doesn't cover off the risks adequately. Since health information is sensitive, many jurisdictions have struggled to design a system whose architecture allows for quick, au- thorized access on demand, yet is robust and secure enough to pre- vent unauthorized access. Building a legal fence around a system that sets out authority along with rights, responsibili- ties, and oversight has also proved a challenge but it can be done, as British Columbia's Personal Health Information Access and Protection of Privacy Act, which was passed last year, shows. In Ontario, it has been a bit of a political minefield from the outset. So far, eHealth Ontario, the agency charged with creating the system, has little to show for its expenditure of $650 million over two years save for about $15 million and counting in untendered contracts and rev- elations around its free-spending executives and consultants. The political fallout has cost both the board chairwoman and former CEO their posi- tions, and has been palpable fodder for the opposition par- ties at Queen's Park to fling at the McGuinty government. n the surface, e-health — or electronic health records — sounds like The scandal aside, as Ontar- io lumbers towards its e-health system, formulating legislation will also be part of the ramp up. It's worthwhile to look at the B.C. experience as a model for the legislation. While Ontario, like Alberta, Manitoba, and Saskatchewan, has privacy legislation specifi- cally around health informa- tion that goes beyond the Per- sonal Information Protection and Electronic Documents Act, the B.C. law goes one step further by creating the authori- ties and oversight process. "Health care is a particularly complex area of the law," says Jill Scott, general legal counsel for the Vancouver Coastal Health Authority. "Improving patient outcomes, protecting privacy, and management of risk are im- portant priorities for our hospi- tals and care providers. The B.C. government sought broad stake- holder input on the legislation and privacy protections." The result is legislation that is on the books but just being im- plemented in a practical sense as the five designated health author- ities in B.C. start to get on board with their electronic files. As Scott notes, the act sets up a unique set of rules for databases containing health information and "establishes fundamental principles of data stewardship." They are: accountability, trans- parency, respect for patient rights, and good governance; all en- shrined in the wording of the act. It also establishes a health information bank, the database containing personal health in- formation, says Scott. It applies only to databanks under the control or custody of a health- care body. It is not mandatory but an option to create an au- thority where none exists. So far, the HIBs likely to be designated under the act are the patient lab informa- tion systems and the electronic master patient index, a patient Come work with us! Law Times is looking for a talented writer who is able to understand complex issues and turn them into compelling news articles to become the new Associate Editor. The position is primarily a writing position but will include some editing and multimedia work such as videos. The ideal candidate will have a university degree and at least two years of experience at a weekly/daily newspaper and/or magazine and some knowledge of Ontario's legal system and business marketplace. The position requires someone who is self-motivated, organized, detail oriented, and able to deliver interesting and lively stories to the legal community. To learn more about the position, please go to www.clbmedia.ca/careers.html Deadline for applications is September 2, 2009. management system. Both will be under the control of the Ministry of Health Services. As part of the checks and balances, the act also creates a data stewardship committee and patient disclosure direc- tives that will manage the re- lease of health data for research or planning purposes. Patients have the right to opt out if they wish, and their records can be accessed only in emergen- cies with their keyword. The provision is an impor- tant principle in law, says Scott, because it allows patients to continue to exercise control over their information and sets out their rights. There are specific circum- stances where that information may be accessed. Patients must be informed of the release of their information, including if it's re- quired by another act or statute, such as the Health Care (Con- sent) and Care Facility (Admis- sion) Act. The rules would also require their express consent. Additionally, patients may see what information is on file and who has accessed it. This would require setting up pa- tient portals where they can log on to their accounts. The act also sets out what information may be disclosed and demands express consent for disclosure to bodies outside of Canada. "I think generally they've done a good job," says Scott, whose work will ramp up as data starts to be accumulated and agencies for the big bang theory." In other jurisdictions, such as England, authorities had a cen- trally planned model that created push back at the user end because it was cumbersome, she says. The nature of the system demands users find it easy and transparent to navigate, but at the same time, network se- curity and data integrity must be robust. While it won't stop We need to build bridges between these databases, not go for the big bang theory. get on board. "They've been quite innovative and produced some- thing that is unique in Canada." She says the challenge in de- signing the system was to en- sure it was easy to access for the front-line clinicians. But nobody can force e-health on to users, robust privacy legisla- tion or not, she warns. "It's a huge challenge, and my own view is that these databases should grow organically, driven by the physicians and clinicians," she says. "We need to build bridges between these databases, not go Trust [ authorized users gaining access to records for purposes other than patient care — such as snooping on celebrities or rela- tives — it does create an audit trail with penalties. So far, Scott says, the benefits of e-health have yet to be fully articulated to the general public and to some extent the front- line clinicians. But establishing that value proposition and getting the buy- in are critical to the concept and for it to fulfill the overarching goals and long-term strategy. 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THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Untitled-2 1www.lawtimesnews.com 8/18/09 10:14:22 AM McKELLAR STRUCTURED SETTLEMENTS INC. www.mckellar.com 1-800-265-8381 www.mckellar.com $3.55 • Vol. 20, No. 19 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM Inside This Issue 5 Oaths of Office 6 Social Justice 9 Focus On Internet/ E-commerce Law Quote of the week "It is also very interesting and exciting to think of sports properties re-energizing the southern Ontario market." — Michael Copeland CFL chief operating officer and general counsel See Opportunity, page 15 Covering Ontario's Legal Scene To Divorce Judgments and Everything in Between FromMarriage Contracts Visit www.divorcemate.com today! DMOne lug_LT.Feb.09.indd 1 Criminal lawyers boycott legal aid 'The system is broken' BY ROBERT TODD Law Times propping up the province's legal aid system by accept- ing rates that barely cover their overhead costs, and will boycott homicide and guns-and-gangs cases until the tariff is boosted. Criminal Lawyers' As- sociation president Frank Addario says over 200 law- yers have committed to the indefinite boycott, which was hatched through a reso- lution at the CLA's May ex- ecutive board meeting. "By taking these certificates and acting as if they were suf- ficient compensation for the complexity and seriousness of the cases we were drawing a curtain in front of the problem," says Addario. "The strong sentiment of the board was C riminal defence lawyers in Toronto say they are sick of promise, which is equal access to justice for everyone." The CLA does not have a specific amount to which it wants the tariff increased before ending the boycott, says Addario. "It's a dynamic process and The current top legal aid rate of $98 per hour 'would cause most lawyers with overhead in a downtown office and with staff to giggle,' says Frank Addario. that we should no longer cover up for the gov- ernment, or paper over the problem. That we should reveal it for all to see." Addario says he submitted a business plan to Attorney General Chris Bentley in March, outlining a roadmap to a tariff hike that would be revenue neutral for complex cases with senior lawyers. When he received no response to that proposal, Addario sent a let- ter to Bentley in April outlining the CLA's ongoing concern about the tariff. The boycott was announced after Bentley failed to respond to that letter by the association's May 30 meet- ing, as Addario had requested. Addario says he was "overwhelmed by the in- tensity of the resolution [at the executive meeting] and in my conversations with lawyers since then. I think there's a pretty firm belief throughout the bar that the time has come to bring this issue out. And I'd emphasize that it's not as if anybody can make the system any worse than it is. The system is broken. It doesn't deliver on its primary there are a number of consid- erations that both we and the government need to take into account, including the cur- rent economic situation. We are realistic," he says. The current top legal aid rate of $98 per hour "would cause most lawyers with overhead in a downtown of- fice and with staff to giggle," says Addario. He notes that lawyers who work on legal aid cases end up donating many hours due to Legal Aid Ontario's "very limited" yearly budget. The province gave judges of the Ontario Court of Justice 83 per cent in raises from 1997 to 2007, and Crown lawyers 57 per cent more compensation over that period. But since 1987 legal aid rates for lawyers acting on behalf of the poor have grown by only 15 per cent. Attorney General Chris Bentley says the province's 15 per cent in increases to the tariff over the past five years "doesn't make up for the 15 and a half years before of cuts and freezes." "I understand some of the frustrations," Army of 500 lawyers retained for auto deals BY TIM NAUMETZ For Law Times OTTAWA — An army of 500 law- yers was retained for the insolvency negotiations that led to the un- precedented government bailouts of General Motors and Chrysler, Ontario lawyers estimate. One of the lawyers who was involved with a Canadian aspect of the GM restructuring tells Law Times he knew he was watching history unfold from the inside. "There was a sense that we were all seeing something, and still are, seeing something that is historic," says Tony DeMarinis, a partner and co-chair of the restructuring and insolvency practice at Torys LLP. "It is extraordinary, it is excep- tional, it's extraordinary in every sense," he adds. DeMarinis acted for General Motors Acceptance Corporation in a related action with GM Canada bondholders in Nova Scotia, and was also one of the lawyers retained by the government of Canada in the complex negotiations. He agrees with Justin Fogarty, a partner at Bennett Jones LLP and vice-chairman of the Interna- tional Bar Association committee on insolvency and restructuring, that up to 500 lawyers were likely retained by the governments, au- tomakers, bondholders, creditors, and unions involved in the talks. The number includes an esti- mated 50 lawyers from Canada, primarily with major Toronto- based firms. "It's a hard number to estimate and my guess is probably nobody really knows, but my gut tells me that's probably the right number," says DeMarinis. Both lawyers note that one of the central features of the massive restructuring for GM and Chrysler was the fact that both parent com- panies filed for bankruptcy protec- tion only under the U.S. Bank- ruptcy Code — and did not file for protection under Canada's Com- panies' Creditors Arrangement Act for their Canadian subsidiaries. In nearly all cross-border in- solvencies and restructuring, U.S. parent firms file for protec- tion under both Chapter 11 of the U.S. code and the Canadian bankruptcy protection legisla- tion, Fogarty and DeMarinis say. The reasons the automakers sought protection only in the US. included an urgent need to reach agreements quickly and the fact that most major bondholders and major creditors were based in the United States. There was a danger as well that negotiating separate restruc- turing deals in Canada and the U.S. could lead to a cumbersome "patchwork" of agreements involv- ing subsidiaries around the world. "It's much more rapid and cost- effective," says Fogarty. Another lawyer who is accom- plished in the practice points to a major difference between Canadian and U.S. bankruptcy legislation. The U.S. code allows com- panies to "repudiate" collective agreements as they try to reach a balance between banks, creditors, and their employees. In Canada, court decisions based on the 1933 Companies' See DeMarinis, page 4 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 Untitled-7 1 Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca www.lawtimesnews.com 5/29/08 1:05:49 PM June 8, 2009 1/29/09 3:17:39 PM See Government, page 4 Pages 1-20.indd 1 6/5/09 9:55:06 AM Photo: Phil Brown