Privacy Site of the Day: PIPEDA Awareness Raising Tools (PARTs) Initiative For The Health Sector

Industry Canada, Health Canada and various medical associations have worked together to assemble a list of questions and answers about the impact of the Personal Information Protection and Electronic Documents Act ("PIPEDA") on the health sector. The site is called "PIPEDA Awareness Raising Tools (PARTs) Initiative For The Health Sector" and is generally a good canvass of frequently asked questions. I recommend giving it a read.

Two caveats, however. The first is that very few of these issues have been considered in the context of a complaint, let alone before the Federal Court of Canada. The second caveat is that at least one of the answers is blatantly wrong:

47. Under PIPEDA, can regulatory bodies/colleges still continue to conduct their investigative practices? Does PIPEDA require any changes in the manner in which these investigative activities are conducted?

The relationship between a regulatory body/college and its members is most often of a noncommercial nature, and therefore not captured by PIPEDA. These bodies are also generally empowered by law to obtain personal information as necessary to fulfill their various functions. Professionals subject to the authority of a regulatory body/college would in all likelihood have agreed to the use of their personal information by the body, as part of a condition of membership. PIPEDA recognizes such authority.

Regulatory bodies/colleges may, in the course of their function, need to obtain personal information from other organizations that are subject to PIPEDA, such as financial institutions. Such organizations may only disclose personal information without consent to entities that have been designated as “investigative bodies” under PIPEDA, by regulation. As such, regulatory bodies/colleges may be required to obtain this designation if they wish to obtain personal information from these organizations without an individual's consent.

The Investigative Body designation is only useful for the circumstances set out in s. 7(d) of PIPEDA:

(d) made on the initiative of the organization to an investigative body, a government institution or a part of a government institution and the organization

(i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, or

(ii) suspects that the information relates to national security, the defence of Canada or the conduct of international affairs;

For this exception to apply, it has to be on the initiative of the organization (e.g. the physician), not the investigative body. This means that an organization can disclose personal information to an investigative body without consent, but the investigative body can't use their status to request the disclosure without consent. Also, it only applies in the circumstances set out in (i) and (ii). The circumstances in (ii) would clearly be inapplicable and it is questionable whether the circumstances of (i) would come to pass in the course of an investigation by a College of Physicians and Surgeons. The better response is the application of sections 7(3)(c) and (i):

(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is ...

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

(i) required by law.

Many colleges have jurisdiction to subpoena or otherwise compel the production of information in the custody of a physician. These exceptions are clearly preferable to those in 7(d). Some professional regulators, like those for social workers in Nova Scotia, don't have the power to compel the production of documents and are therefore unable to get this information without consent.