Law Times

Law Times • January 25, 2016 Page 11 www.lawtimesnews.com Bill to strengthen health information privacy laws will affect patients and clients BY YAMRI TADDESE Law Times A privacy lawyer says the Ontario government's proposal to strengthen the province's health information privacy laws is proof that, despite what conventional wisdom says, privacy is not a relic from a pre-social media world. "On one hand we're hearing, 'Oh, privacy is dead and every- body is sharing their stuff on so- cial media and privacy has gone out the window,'" says McInnes Cooper LLP privacy lawyer Da- vid Fraser. "But I think this is strong evidence that this is not the case — that lawyers need to be advising their clients that pri- vacy is not just a check-the-box exercise and it's not just a mat- ter of getting a slap on the wrist anymore." After 2015 saw a number of cases of hospital employees snooping on patients' records, the Ontario government intro- duced a bill that would, if passed, make it mandatory for hospitals to report privacy breaches to the information and privacy com- missioner and relevant regula- tory colleges. The bill would also clarify that "certain information and facts about critical incidents cannot be withheld from affected patients and their families," ac- cording to the province. Fraser says the bill will, if passed, strengthen the pros- ecution provisions under the Personal Health Information Protection Act. It would, for ex- ample, simplify the process of accountability under the act by doing away with a requirement that prosecutions be commenced within six months of when the alleged breach occurred. Those changes are needed, Fraser says, because hospital pa- tients are vulnerable to privacy breaches due to the sheer number of people who have access to their data in health-care facilities. "It's an environment where, for operational reasons, just about anybody who provides health care needs to have ac- cess to all the information in the system about patients to do their jobs," Fraser says. As pa- tients move from department to department across hospitals, it's important their records are available to everyone who could possibly need it, Fraser explains, adding granting access on a case- by-case basis would be too cum- bersome and interfere with the delivery of health-care services. "That leaves you quite vulner- able to people . . . browsing and snooping on records because it's very easy to do," he continues, adding there have to be "very strong consequences" for such behaviour. There have also been cases where people have ac- quired information about some- one's health and sold it, "which is particularly reprehensible," Fraser says. A requirement that hospitals inform patients when they've been snooped on and they're likely at risk of significant harm as a result means those patients can pursue legal action against the hospital if they're not satisfied with the actions taken against the culprits by the hospital. "When somebody is noti- fied that their records have been snooped on, they're likely going to be upset about that and they're likely to hold the organization to account and the employee to ac- count," Fraser says. The bill, however, would not give patients the right to infor- mation about the internal disci- plinary process or measures that follow incidents of snooping, says Alan Belaiche, former in-house counsel to St. Michael's Hospital. "When there's a critical inci- dent inside a hospital, there are typically two courses [of action], one being the quality review, [dealing with] what happened. Concurrently, there's a separate track or process dealing with . . . a concern around competency — there's a professional practice review," Belaiche says. "Patients have been vocal about getting access to as much information as possible, like what exactly went wrong. This bill does not give patients the right to know anything about that second track," he continues. Belaiche says he doesn't be- lieve that gap in the bill was an oversight. The Canadian Medi- cal Protective Association would vigorously fight a provision that would give patients access to in- formation about the existence of a practice review, let alone the result of one, because the results could be used by a plaintiff in a potential action, he says. From an operational perspec- tive, this is not an easy area to navigate, Belaiche says. "For bet- ter or for worse, it is what it is. I don't know what the solution is, but I do know that patients may very well feel they've been cut out." Still, Belaiche lauds parts of the provision that encourage greater transparency and ac- countability around snooping on patients' records. With electronic medical re- cords, taking a peak at someone's information out of curiosity, or worse, has become "very easy," Belaiche says. "With paper records, it used to be much harder," he says. LT FOCUS STAY CONNECTED TO YOUR LEGAL COMMUNITY British Columbia's vast legal community is right at your fingertips with the 2016 British Columbia Legal Telephone Directory. You get instant access to more than 11,000 lawyers and law offices spanning British Columbia, Northwest Territories, Nunavut and Yukon. Each year we ensure this directory includes the most up-to-date names, phone numbers, mailing addresses and emails, so you don't have to search anywhere else. 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Choose from our timely and relevant selection of topics including: - Corporate Governance - Advertising & Marketing Law - Information Privacy & Data Protection - Anti-Bribery & Corruption To learn more contact us at 1-877-298-5868 or visit www.lexpert.ca/cpdcentre 'When somebody is notified that their records have been snooped on, they're likely going to be upset about that and they're likely to hold the organization to account and the employee to account,' says David Fraser.

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