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
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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.
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.
...
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He is also a part-time member of the Faculty of Law at
general counsel to National Privacy Services Inc.
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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.).
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