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

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

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)

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)

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

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.

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.

public sector information and privacy laws health information laws

Manitoba (1997) Alberta (2001) Saskatchewan (2003) Ontario (2004)

private sector privacy laws

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)

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?

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

Section 59: required individual consent before information could be disclosed electronically

Removed in 2003

authorization for custodian to disclose purpose for disclosure identity of recipient acknowledgement of reasons, risk, benefits date effective statement that consent may be revoked

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

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

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

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

benefits and risks of EHRs professional obligations

ethical and legal

patient rights
consent and control

achieving an appropriate balance