Making Good on a Promise: New Legislation Introduced to Amend PHIPA

Earlier this week, the Ministry of Health and Long-Term Care (the “Ministry”) followed through on its promise to introduce amendments to the Personal Health Information Protection Act(“PHIPA”). Bill 119, the Health Information Protection Act, 2015, was introduced in the Ontario Legislature on September 16th and, if passed, will not only amend PHIPA, but also repeal and replace the Quality of Care Information Protection Act (“QCIPA”) – the legislation that governs the protection and disclosure of quality of care information in hospitals, independent health facilities, long-term care homes, licensed medical laboratories and specimen collection centres. These changes will have a significant impact on patients and their families, as well as health professionals and the way in which health care institutions operate in terms of privacy practices and responses to critical incidents.

Amendments to PHIPA

The key amendments to PHIPA set out in Bill 119 include:

• Mandatory Reporting of Privacy Breaches – health information custodians will be required to report certain prescribed privacy breaches to the Information and Privacy Commissioner and to notify relevant regulatory Colleges if a member of the College who is employed by, holds privileges with, or is otherwise affiliated with the custodian has (or is suspected of having) committed a privacy breach for which the custodian has initiated an investigation or disciplinary action.

• Removal of Limitation Period for PHIPA Prosecutions – there will no longer be any time limit for commencing prosecutions under PHIPA. Currently, prosecutions for offences under PHIPA have to be initiated within six months of the date of the alleged offence.

• Increased Fines for Offences – the maximum fines are doubled from $50,000 to $100,000 for individuals and from $250,000 to $500,000 for organizations who are found guilty of an offence under PHIPA.

• Privacy Framework for the Electronic Health Record – a new Part V.1 would be added to PHIPA to create a privacy framework for the Electronic Health Record, an electronically available record of an individual’s lifetime health and care history, which would be created and maintained by prescribed organizations in order to enable any health care provider in the patient’s circle of care to have instant access to the patient’s health records.

The New QCIPA

If passed, Bill 119 would replace the existing QCIPA with an entirely new act of the same name touching on the following matters:

• The Purpose of QCIPA – the purpose of the act is defined as “to enable confidential discussions in which information relating to errors, systemic problems and opportunities for quality improvement in health care delivery can be shared within authorized health facilities, in order to improve the quality or health care delivered to patients.”

• Sharing Information about Critical Incidents – the new act clarifies that certain information and facts about critical incidents (i.e. unintended errors or accidents that result in death, or serious disability, injury or harm to a patient) cannot be withheld from affected patients and their families. The kind of information that would be disclosed would include the facts, cause (if known), and consequences of the incident, as well as the actions and/or systemic steps taken in order to address consequences and reduce risk of similar incidents (source: pacelawfirm.com).

• Minister’s Regulations – the act permits the Minister of Health and Long-Term Care (“Minister”) to make certain regulations without seeking public consultation, such as regulations requiring health facilities to adopt a uniform approach to reviewing critical incidents.

• Review of QCIPA – the new act contains a requirement that the Minister review QCIPA every five years.

In its news release regarding Bill 119, the Ministry noted that in addition to updating QCIPA, it is also in the process of carrying out further recommendations made by the QCIPA Review Committee, the committee of health care experts that the government convened in September 2014 to advise the government on ways to improve QCIPA and other health sector legislation related to the investigation of critical incidents. These recommendations include working with the Ontario Hospital Association and Health Quality Ontario to provide guidance and training to health care facilities on reviewing critical incidents, and offering patients the option to file complaints about the process or outcome of a critical incident investigation at a hospital through the Office of the Patient Ombudsman, which is in the process of being created.

More Information to Come

Keep your eyes on our blog in the coming weeks for a more detailed review of the proposed amendments to PHIPA regarding the Electronic Health Record. We will also keep you updated as Bill 119 progresses through the Ontario Legislature on its way to becoming law.