Saturday, March 06, 2004

Upcoming Article: The Application of PIPEDA to Personal Health Information

Below is the beginning of an article that I wrote, which will appear in the March edition of Butterworth's Privacy Law Review. If you want to read the whole thing, you'll probably need to wait until it comes out at the end of the month (I'm not sure if they wanted exclusive digital rights ...).

The application of PIPEDA to Personal Health Information

David T.S. Fraser[1]

Since it was Bill C-6 and C-54 before that, one of the most contentious issues related to the Personal Information Protection and Electronic Documents Act (“PIPEDA”) has been if – and how – it applies to the practice of medicine and the handling of personal health information. The Canadian Medical Association and other similar organizations lobbied strongly against the inclusion of health information within the ambit of PIPEDA. This lobbying continued to the final hours of 2003, at which point it became clear that the federal cabinet did not support either a “carve-out” or a postponement of the law’s application to medical information.

Among medical professionals, PIPEDA is widely seen as a tool that does not effectively address the nuances that separate personal information collected in the medical context from that which is ordinarily used in the course of commerce. There was also a strong strain of opinion that physicians' ethical obligations and the CMA Health Information Privacy Code are sufficient to protect patient privacy. The medical and dental professions should be exempted, it was argued. In the end, PIPEDA did not treat health information as a special class of information and did not specifically exempt physicians or dentists from its application.[2]

Leaving the statute unamended did not clarify the application of the law to health information because a myriad of questions linger, at least in the minds of many. While there are many important issues related to PIPEDA and personal health information, this article will focus on the impact of PIPEDA on medical professionals in practice. Many medical professionals who have turned their minds to this issue are primarily concerned with whether PIPEDA applies in a particular circumstance and the impact of other laws specifically focused on personal health information.

According to Section 4 of the Act, PIPEDA applies to:

... every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities; or ...

This raises the very important question: what part of the practice of medicine is, in fact, a commercial activity. There appears to be a consensus that a physician in private practice is engaged in commercial activities, regardless whether services are paid for by public insurance. PIPEDA thus applies in private practice. What about physicians working at a hospital? Or physicians employed by university health clinics? The lines can get very blurry.


[1] The author is the Chair of the Privacy Law Group at McInnes Cooper. He is also a part-time member of the Faculty of Law at Dalhousie University and general counsel to National Privacy Services Inc.

[2] PIPEDA did treat health information differently from ordinary personal information during the law’s first year of application in the federally-regulated private sector. Federal works, undertakings and businesses were given an additional year – until 2002 – before the law would apply to “personal health information.” See PIPEDA, s. 30(1.1) and (2.1.).

No comments: