What You Need to Know About Privacy Law:
An Overview of the Personal Health Information Protection Act, 2004[1]

If you engage in commercial activities involving the collection, use or disclosure of personal information outside of Ontario, then you will also need to comply with the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”).[3] PIPEDA may also apply if you collect, use or disclose information that is personal, but not health information, in the course of commercial activities in Ontario (for example if you collect a home address and credit card number to process a sale that is unrelated to your duties as a health professional).

Health professionals also need to comply with Canada’s anti-spam legislation, which requires consent to send electronic messages of a commercial nature.[4]

[4] For more information on Canada’s anti-spam legislation see: https://fightspam.gc.ca/eic/site/030.nsf/eng/home

What information is protected under PHIPA?

PHIPA protects personal health information. Personal health information is defined as information that can identify an individual (or can be combined with other information to identify an individual) and that relates to:

• the physical or mental health of the individual (including family health history);
• the provision of health care to the individual (including identifying the individual’s health care provider);
• home and community care;
• payments or eligibility for health care or coverage for health care;
• the donation or testing of an individual’s body part or bodily substance;
• the individual’s health number; or
• the identification of the individual’s substitute decision-maker.

Personal health information can be either oral or recorded (in written or electronic form). PHIPA also covers mixed records that contain both personal health information and other non-health identifying information about an individual (for example, a record that contains an individual’s home address, telephone number and health history).

What are my obligations under PHIPA?

The main obligations under PHIPA include:

• to obtain consent to collect, use or disclose an individual’s personal health information (except in limited situations discussed below);
• to maintain security over personal health information by taking reasonable steps to protect against theft, loss and unauthorized use or disclosure (this includes an audit log for electronic health records and maintaining security on electronic devices, for example by encrypting data);
• to ensure the accuracy of personal health information;
• to collect, use or disclose only as much personal health information as is necessary in the circumstances;
• to provide individuals with access to their personal health information upon request (except in limited situations, including where the information was created primarily for use in a legal proceeding or where providing access could result in a risk of serious harm); and
• to correct personal health information if the record is incomplete or inaccurate (except where one is not in a position to correct the information in a record created by another custodian or if the information consists of professional opinion or observation made in good faith).

Am I a Health Information Custodian or an Agent?

Health professionals have different levels of responsibility depending on whether they are the health information custodian or an agent. If you are a regulated health professional or you operate a group practice, and you have custody and control of personal health information in connection with your duties, then you are a health information custodian for purposes of PHIPA. However, even if you fall under the definition of a health information custodian, if you work for or on behalf of another custodian (such as another regulated health professional, a group practice or a hospital), then you are considered to be an agent of that health information custodian.

A health information custodian is ultimately responsible for the personal health information in his or her custody or control, but may permit an agent to collect, use, disclose, retain or dispose of the information if certain requirements are met. The agent must ensure that the collection, use, disclosure, retention or disposal of the information is permitted by the custodian, is necessary for purposes of carrying out the agent’s duties, is not contrary to law and complies with any specific restrictions imposed by the custodian.[5]

Health information custodians have these additional administrative duties:

• to develop and comply with policies (known as “information practices”) with respect to:
• when, how and the purposes for which the custodian routinely collects, uses, modifies, discloses, retains or disposes of personal health information; and
• the administrative, technical and physical safeguards and practices that the custodian maintains with respect to personal health information.
• to designate a contact person to:
  • facilitate the custodian’s compliance with PHIPA;
  • ensure that all agents are informed of their duties under PHIPA;
  • respond to public inquiries about the custodian’s policies;
  • respond to requests for access or correction; and
  • receive public complaints about alleged privacy breaches.
  • provides a general description of the custodian’s privacy policies (including the purposes for which personal health information is collected, used and disclosed);
  • describes how to contact the contact person or the custodian;
  • describes how an individual can seek access to or correction of a record; and
  • describes how an individual can make a complaint to the custodian and to the Information and Privacy Commissioner of Ontario.

  Health information custodians must also notify the individual about whom the information relates if the individual’s personal health information is used or disclosed in a manner that is outside the scope of the description set out in the written public statement.

  [5] See PHIPA, section 17.

  Do I need to obtain express consent from the individual in every situation?

  No, PHIPA provides that consent may be express or implied. Express consent is required where personal health information is disclosed to a person who is not a health information custodian (such as an insurance company) or it is not disclosed for the purpose of providing health care. Express consent is also required for certain fundraising, marketing and market research activities.[6]

  In other situations, implied consent is sometimes sufficient. For example, when a client answers questions about his or her health history – in a context where it is obvious that the information will be used to assess and treat the client – a health professional can infer consent to collect that information.

  Importantly, health professionals can assume that they have an individual’s implied consent to collect, use or disclose personal health information for the provision of health care if the following conditions are met:

  • the information was received from the individual, the individual’s substitute decision-maker or another health information custodian;
  • the information was received for the purpose of providing health care to the individual;
  • the information is collected, used or disclosed for the purpose of providing health care to the individual;
  • if information is being disclosed, it must only be disclosed to another health information custodian; and
  • the individual has not withheld or withdrawn consent.[7]

  This is commonly referred to as sharing personal health information within the circle of care.[8]

  In addition, there are limited exceptions where personal health information can be collected, used or disclosed without consent. For example, consent is not required in the following circumstances:

  • to collect personal health information from an individual, even if the individual is incapable of consenting, if it is reasonably necessary to provide health care and consent cannot be obtained in a timely manner;
  • to disclose personal health information about an individual if the custodian believes on reasonable grounds that disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm;
  • to disclose personal health information in the context of a legal proceeding if the custodian or agent is a party or witness; or
  • to disclose personal health information to a regulatory College (for example, in the context of an investigation of a complaint).[9]

  [6] See PHIPA, sections 32-33.

  [7] For more information about your obligations when an individual withholds or withdraws consent, see the Information and Privacy Commissioner’s “Fact Sheet #08 – Lock-box Fact Sheet”, available online: https://www.ipc.on.ca/wp-content/uploads/resources/fact-08-e.pdf.

  [8] For more information on the exchange of information within the circle of care, see the Information and Privacy Commissioner’s Guideline “Circle of Care: Sharing Personal Health Information for Health-Care Purposes”, available online: https://www.ipc.on.ca/wp-content/uploads/resources/circle-of-care.pdf.

  [9] Health professionals should refer to PHIPA (in particular, sections 29-50) for a full listing of the exceptions to obtaining consent.

  What should I do if there has been a privacy breach?

  If personal health information has been stolen or lost or if it has been used or disclosed without authority (this includes the unauthorized viewing of health records):

  • The health information custodian must notify the individual about whom the information relates at the first reasonable opportunity. The notice has to inform the individual that he or she is entitled to make a complaint to the Information and Privacy Commissioner of Ontario.
  • In serious situations the health information custodians will also have to notify the Commissioner The Commissioner also needs to be notified of all privacy breaches in an annual report filed with the Commissioner’s office.
  • An agent that handled the information must notify the responsible health information custodian at the first reasonable opportunity.

  Health information custodians have additional reporting obligations to regulatory Colleges (which include the Colleges under the Regulated Health Professions Act, 1991 and the Ontario College of Social Workers and Social Service Workers) if the custodian takes disciplinary action against a member of a College for the unauthorized collection, use, disclosure, retention or disposal of personal health information.

  What are the consequences of failing to comply with PHIPA?

  If a health professional fails to comply with PHIPA, an individual may make a complaint to the organization’s contact person (or directly to the custodian if there is no contact person), to the Information and Privacy Commissioner of Ontario or to the relevant regulatory College.

  The Information and Privacy Commissioner can review complaints and order members to comply with PHIPA. The Commissioner can also impose a monetary penalty. The affected individual may also commence a civil action for damages.

  Depending on the circumstances, a complaint to the College may result in a referral of allegations of professional misconduct to the Discipline Committee.

  If a health professional’s contravention of PHIPA was deliberate, he or she may be guilty of an offence, punishable by a fine of up to $200,000 and imprisonment for up to one year.

  [1] Original Work Copyright © 2020 by Steinecke Maciura LeBlanc. This document is intended as a general overview of the Personal Health Information Protection Act, 2004 for regulated health professionals in Ontario. This is not intended to provide legal advice. For legal advice, please speak to a lawyer.