Personal Health
Information Privacy Act, 2000, Bill 159, Mrs
Witmer/ Loi de 2000 sur la confidentialité des
renseignements personnels sur la santé, projet de
loi 159, Mme Witmer
Ministry of Health and
Long-Term Care
Mr Phil Jackson, director, strategic health policy branch
Ms Juta Auksi, senior policy analyst, strategic health policy
branch
Mr Gilbert Sharpe, counsel
STANDING COMMITTEE ON
GENERAL GOVERNMENT
Chair /
Président
Mr Steve Gilchrist (Scarborough East / -Est PC)
Vice-Chair / Vice-Présidente
Mrs Julia Munro (York North / -Nord PC)
Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Steve Gilchrist (Scarborough East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina ND)
Mrs Julia Munro (York North / -Nord PC)
Substitutions / Membres remplaçants
Ms Frances Lankin (Beaches-East York ND)
Mr Gerry Martiniuk (Cambridge PC)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Mrs Sandra Pupatello (Windsor West / -Ouest L)
Mr Joseph Spina (Brampton Centre /-Centre PC)
Clerk / Greffière
Ms Anne Stokes
Staff /Personnel
Susan Swift, research officer,
Research and Information Services
The committee met at
1337 in room 1.
PERSONAL HEALTH INFORMATION PRIVACY ACT, 2000 / LOI
DE 2000 SUR LA CONFIDENTIALITÉ DES RENSEIGNEMENTS PERSONNELS
SUR LA SANTÉ
Consideration of Bill 159, An
Act respecting personal health information and related matters /
Projet de loi 159, Loi concernant les renseignements personnels
sur la santé et traitant de questions connexes.
The Chair (Mr Steve
Gilchrist): I call the committee to order to continue
our technical briefing on Bill 159, An Act respecting personal
health information and related matters. We're joined again today
by staff from the Ministry of Health.
As committee members will
recall, we weren't following any strict protocol in terms of
going through clause-by-clause for the deliberations. I think
there were some outstanding issues the ministry wanted to get
back to, particularly to Ms Lankin and Ms McLeod. Ms Lankin, do
you want to kick things off today?
Ms Frances Lankin
(Beaches-East York): I think some questions to the
ministry were put on record. I was just looking to see if I could
find it, and I haven't got the reference yet. One was with
respect to a complete explanation of the disclosures that are
made now, under ministerial direction. We haven't received
anything in writing. Is that information going to be presented
today?
Mr Phil
Jackson: That information will be presented. We
presented two of the pieces that were requested. That has just
been handed over. The issue of current uses of information is a
very large piece of work. We are completing that. We should be at
the stage to share it with you when it comes.
Ms Lankin:
Mr Chair, could you ask the clerk if information has been
submitted by the ministry that's been circulated to committee
members, or are we awaiting that?
The Chair: I
know the clerk just handed out one document. Are both responses
combined in that?
Mr Jackson:
We have passed on the registration information as well. It was to
go to Mr Wood. We are able to answer the question on the
registration information and have the written response.
The Chair:
Unfortunately, Mr Wood has been subbed off today. Do you know
when?
Mr Jackson:
We can provide you with that today.
The Chair:
I'd appreciate that.
Ms Lankin:
Could you clarify again for the record the two pieces of
information that are prepared for the committee today, and what's
been circulated and what hasn't yet?
Mr Jackson:
The answer to the question you raised, Ms Lankin, on the
definition of registration information that is used in the draft
legislation, specifically the question that was asked on the use
of employment status-we can answer that question.
Ms Lankin:
Has that been submitted in writing?
Mr Jackson:
That has been prepared and submitted. The parliamentary assistant
is the liaison for the ministry.
Ms Lankin:
But you will get that to the clerk this afternoon so we'll have
that?
Mr Jackson:
Yes, we'll get that to the clerk this afternoon.
Ms Lankin:
And the other?
Mr Jackson:
The other was the overview of my presentation from the last
technical committee briefing that you requested, which has been
provided.
The third piece, the current
collection uses and disclosures for personal health information,
is a very broad area. We have our research unit looking at the
research agreements we currently have in place and compiling some
of those. As you're aware, they are significant.
Ms Lankin:
OK. For further clarification, is this the document you were
talking about, the summary of the presentation?
Mr Jackson:
Yes.
Ms Lankin:
Thank you very much.
The Chair:
Mrs McLeod.
Mrs Lyn McLeod
(Thunder Bay-Atikokan): I'm just wondering about a
method of proceeding. You're right, in the sense that we had some
outstanding areas to raise when we left the last technical
briefing, but I think we postponed the technical briefing on the
understanding that the ministry might want to respond to some of
the concerns raised by the two privacy commissioners. I'm hoping
that is what the ministry has come prepared to do today.
I'm also wondering, since we
have tabled amendments proposed from the provincial privacy
commissioner, whether the ministry intends to respond to those in
any kind of formal or
informal way today or at some future point?
The Chair:
Thank you, Mrs McLeod. Like you, I expect that would be the bulk
of their presentation. I just didn't want to truncate or prevent
any members from putting on the record any questions that had
come up in the interim. So, if you'd just like to start with the
ministry, then we can respond.
Mrs McLeod:
I'd be most comfortable going through-I'm assuming the ministry
will take us through it in a fairly orderly way in terms of
responding to the points of the commissioners. I'd be happy, with
your permission, to raise questions as they go along. That would
certainly accommodate any outstanding questions I have.
The Chair:
Excellent. With that, Mr Jackson, perhaps you would like to walk
us through any responses or any further detail.
Mr Jackson:
Certainly. In terms of the comments of the federal Privacy
Commissioner, it's not our position, in terms of technicians
working on this file, to comment substantively on the manner or
format in which those comments were raised. I do want to go
through some of the specific areas that were raised by the
federal commissioner, and we welcome the offer from the federal
commissioner to keep open lines of communication. We've certainly
tried to keep open lines of communication with our own
Information and Privacy Commissioner.
In terms of specifics of the
comments that were raised, as you know, the federal Privacy
Commissioner called for the scrapping of the bill. We would note
that the Ontario Information and Privacy Commissioner strongly
urged that work be undertaken to improve the bill that's in front
of you.
On some of the specifics that
were raised, the point was made that the legislation appears
designed to allow for virtually an unlimited range of
organizations with unrestricted access. We would draw attention
to limiting principles set out in section 12 of Bill 159. Section
12 enunciates that there should be no collection of identifiable
personal health information if other information would serve the
purpose; the collection, use or disclosure should be limited to
registration information, if registration information if
registration information will serve the purpose; there should be
collection of only as much personal health information as is
reasonably necessary for the purpose; the collection, use and
disclosure should be undertaken in a manner that conceals the
identity of the person to the extent possible.
I would also draw attention
to part IV of Bill 159, which would include a requirement for
health information custodians to establish and maintain
administrative, technical and physical safeguards to protect the
integrity, accuracy and confidentiality of personal health
information.
When you take these
components in comparison to the existing rules that are in place,
and in some cases are not in place in many components of the
health sector, it's certainly the intent of the bill to introduce
limitations and requirements that are currently not in place for
many custodians of health information.
Mrs McLeod:
Could I just ask for some clarification as to what's the most
appropriate way to raise our questions. For example, we've just
had a response to the limitations and access under section 12. Do
you want us to raise questions under those sections or do you
want us to wait until you've finished?
Mr Jackson:
It would probably be easier to actually go through and then take
them together at the end.
Mrs McLeod:
And then come back?
Mr Jackson:
Yes, if that's acceptable to the committee.
I would raise the federal
Privacy Commissioner's comment that Bill 159 permits far too many
people to access, collect, use and disclose personal health
information without regard to whether it is necessary for the
care of the individual. Bill 159 permits the collection, use and
disclosure of personal health information for purposes other than
for the purposes of providing health care, but so do all other
provinces with health information privacy legislation: Alberta,
Manitoba and Saskatchewan.
I would draw attention to the
fact that a comment was made by the federal Privacy Commissioner
stating that a number of other provincial jurisdictions may be in
the same boat. Certainly the comments that were made by the
commissioner at the previous presentation raised implications not
only for Ontario but for other jurisdictions.
We would also draw attention
to the European Union directive, article 8, which is the measure
passed by the European Union regarding personal information.
Article 8 of the European Union directive also permits the
collection, use and disclosure of health information for purposes
other than health care, including for the management of health
services, for the processing that occurs between competent bodies
of health professionals or between persons bound by an equivalent
oath of secrecy or for a matter of substantial interest.
I draw attention to the
European Union directive, article 8, as this was one of the
drivers behind the introduction of federal Bill C-6-compliance
with the European Union directive, around the appropriate
protections and uses of personal information. So Ontario Bill 159
is not in isolation in recognizing that for personal health
information there are uses other than care to which that
information may be put without an individual's consent.
A comment was made specific
to regulations and the broad powers to access and disclose
personal health information through regulation. On this, we would
say regulations, section 76 specifically, do not specially allow
for additional power. What they would do is allow for the
addition of criteria when directed disclosures or other
disclosures take place within the health system.
Again, specific mention of
section 22 was made, collection without consent, and section 27,
use without consent. Here we would draw attention between the
different challenges faced by a health system piece of
legislation and federal Bill C-6, which has largely been
structured with the
interests of commerce in mind. It's not unusual for a health care
bill to focus on uses of information other than the immediate
provision of patient care. This is an issue that is perhaps less
grappled with in terms of the complexity of managing and
organizing the day-to-day provision of care. It's perhaps more
grappled with at the provincial level because of the provincial
involvement in the planning and management of health care
delivery than it is necessarily at the federal level, where some
of the major issues of what is an appropriate resource
allocation, what is an appropriate level of utilization for a
service are less immediate to the day-to-day running of the
system.
1350
We'd also point out that
collection, uses and disclosures without consent are contained in
other jurisdictions, such as New Zealand and the Australian
Capital Territory. We'd also point out the European Union
Directive on Data Protection 95/46/EC goes well beyond the
existing rules set out in C-6, permitting to allow for the
collection, use and disclosure of sensitive data, including
medical information without consent; for example, for the
management of health care services. This is consistent with the
European directive around which a number of European states are
to legislate.
Ms Lankin:
Mr Chair, I'm sorry to interrupt at this point. Yet again you're
reading from notes and there are a lot of technical things that
you're specifying. It would be very helpful if we could have that
in front of us so we can make notes to come back and ask you,
because I can't write as fast as you are reading it. Is there an
extra copy that someone has that the clerk could copy now and
distribute as you're presenting?
Mr Jackson:
Can we commit, as we did with the registration information, to
get you that in writing?
Ms Lankin:
No. You see, the problem is, how do I come back and ask you
questions about some of the technical points? I'm trying to be
helpful. If there's a spare copy that someone else has that could
be copied while you're presenting, that would be-
Mr Jackson:
This also contains my notes.
Ms Lankin:
I'm not trying to be difficult; I'm just saying that some of
these technical things that you're raising, I'd like to make a
note beside and come back and ask you a question. I can't keep it
all straight to be able to have a good dialogue with you
afterwards.
Mr Jackson:
If you can give us a couple of days, we can give you a clean
version, or if you want me to clarify at any given point, I can
clarify any given point or repeat something.
The Chair:
Perhaps, Mr Jackson, another alternative would be to allow
questions throughout your presentation, in deference to Ms
Lankin. I certainly can appreciate that trying to make all of
your notes throughout this whole presentation might make it
difficult to summarize at the end in questions. So if you would
be happy, I would allow questions throughout the
presentation.
Ms Lankin: I
appreciate that flexibility. I don't think that addresses my
concern. I think what will happen is that we'll go through this,
we'll ask some questions and we'll get the Hansard and we'll go
through it and we'll have more questions. I think it just
prolongs it, unfortunately. It's the second time going through
this that we've run into this problem, where we're getting the
presentation-that's why it's helpful to have a written
presentation.
Mr Jackson:
I appreciate that. We're also responding to an anticipated
position from the federal Privacy Commissioner, so we have
prepared very quickly in response to that. I'm touching on areas
where we know we've done the research and where we know we have
solved it. In other areas that are in this paper, there is
additional legal research that I would like. Hence, I am speaking
from what is essentially a working draft. We hadn't anticipated
having to make this presentation after the federal Privacy
Commissioner's comments. But it's not an attempt to conceal
anything.
Ms Lankin:
And I wouldn't suggest that. I'm trying to have this flow in a
way that is useful for dialogue and for intelligent questions
flowing from the new information being presented. Could I ask if
there's any further advance on the annotated act that we talked
about last time that wasn't ready at that point.
Mr Jackson:
We believe those were side by side-
The Chair: I
believe Mr Wood may be the custodian of that as well.
Mr Jackson:
We provided those.
Ms Lankin: I
was told that there was a version that the ministry was working
on that wasn't ready, it wasn't completed. Is that not the
case?
Interjection.
Ms Lankin:
OK, that's fine. I withdraw that question.
Mrs McLeod:
Perhaps it would be helpful if we were to back up, because I'm
finding the same problem as Ms Lankin is finding. My questions
are going to take you back over exactly the same material that
you've presented because I can't cross-reference your notes to
mine. I've cross-referenced the bill with the comments of both
the provincial and the federal Privacy Commissioners. Maybe we
could start doing clause-by-clause, raise the issues that the
commissioners raised and ask you for your response to those
specific issues so we can follow in the bill and you can give
your response in relationship to those sections.
Mr Jackson:
Would it be permissible with the Chair just to finish our
response to the federal Privacy Commissioner? I'm quite happy to
engage in discussion around the clause-by-clause. It was a fairly
significant presentation.
The Chair:
How much longer would you anticipate your presentation
taking?
Mr Jackson:
I'm at the mercy of the committee, but 10 or 15 minutes.
The Chair:
Would that be reasonable? Finish that and then we will go in
sequence clause-by-clause and ask for any further
information.
Mr Jackson:
I would refer to the comments around "substantially similar."
This is an area that has been the most challenging in working on this legislation
and potentially is the most challenging for not only Ontario's
consideration of Bill 159; obviously the requirement for Bill 159
to be substantially similar to C-6 goes to the heart of the
discussion.
The first comment is that the
federal Privacy Commissioner recommends to cabinet regarding what
is or isn't deemed to be substantially similar. Subsection
27.2(2) of Bill C-6.
I would also repeat that
there's no definition of "substantially similar" in C-6. The
clarifications that were offered by the privacy commissioner,
while welcome, when dealing with a bill of this technical level
merely provide us with four guideposts to areas considered
important. They don't provide the technical information required
to be able to assess whether or not a bill is substantially
similar.
Statements were made that
also referred to federal Bill C-6 being the floor for any bill to
be considered substantially similar. It's the first time we've
heard an articulation of the C-6 provisions being the floor, a
basic high-water mark or benchmark. It's an interpretation of
"substantially similar" that we're not familiar with. It
basically sets as a minimum in C-6 what will be required.
We were also caught by
surprise, it's fair to say, by the federal Privacy Commissioner's
comments that suggested doctors' offices would be covered under
federal Bill C-6 in the event that provincial legislation was not
in place in this area. This seems to us somewhat inconsistent
with the comments that had been made previously by Industry
Canada and introduces a new variable in what is an extremely
foggy area. We would compare the comment of the federal
commissioner with statements made by then-industry minister John
Manley at the Senate standing committee on social affairs,
science and technology on Thursday, December 2, 1999:
"We are trying to be
respectful of provincial jurisdiction. We are looking for similar
principles. In other words, both our bill and the Quebec bill are
based on the same root idea, which is the OECD standard. We are
looking for independent oversight, for redress for individuals,
and we are not trying to prescribe in detail what the provinces
need to do."
Further comment from industry
minister John Manley:
"I am not willing to reach
into the Quebec jurisdiction and say that the federal government
has decided that we will let your government and your doctors do
this. We are setting a general standard that provinces can
legislate around. It's fair to say we've been working from an
assumption of a general standard that provinces can legislate
around."
It's also fair to say that we
came away from the briefing by the federal Privacy Commissioner
with more questions, rather than fewer, regarding what
constitutes "substantially similar" and whether or not doctors
will be caught under the federal legislation in the event that
this legislation does not go forward. We would also raise the
question that if federal Bill C-6 is the floor, it's difficult to
see how other provincial legislation in this area will pass the
test of "substantially similar."
It's also important to know
that article 8 of the European Union directive, which deals with
sensitive data and was one of the motivating factors behind C-6
being passed, contains provisions permitting disclosure without
consent in various circumstances: under article 8(2)(c), the
vital interests of the data subject; under 8(3) for the
management of health care services; under 8(4) for substantial
public interest. There are no comparable provisions in Bill C-6,
yet this is the standard to which the European Union has
agreed.
Other provinces with health
privacy legislation will face the same challenge. Alberta,
Saskatchewan and Manitoba all have exceptions that allow for the
collection, disclosure and use of health information without
consent.
1400
I would draw your attention
to the comment, "The first major flaw of the bill is the lack of
a restriction on how and by whom personal health information may
be accessed, collected, used and disclosed."
The problem begins in section
2, with the almost absurdly broad listing of who qualifies as a
health information custodian. I'd like to make two points with
regard to that. The discussion of who is or is not considered a
health information custodian is also an issue of who is bound by
the obligations that are placed upon a health information
custodian.
Under Bill 159 as it's
currently drafted, being designated a health information
custodian carries with it significant requirements: management
requirements, information practice requirements, requirements to
notify individuals and requirements to have transparency around
how your health information is managed.
It's also fair to say that
while the commissioner's comments focused on the breadth of
individuals designated as health information custodians, it's
true to say that others have criticized the bill for not having
enough people designated as health information custodians; for
not, for example, sufficiently touching the insurance sector, or
that there are community programs that fall outside the ambit of
health that may hold health information that should be considered
for inclusion. There has been discussion on both sides around who
should or should not be designated as a health information
custodian.
Being designated as a health
information custodian, as Bill 159 spells out, doesn't give carte
blanche as to how you use, collect or disclose information. For
many sectors, especially for health professionals who are
currently unregulated, it introduced for the first time privacy
protection considerations and privacy rules where they don't
exist.
A question was asked whether
the minister and district health councils should be subject to
the same standard. The act for the first time, specifically to
the health information that the Ministry of Health holds, would
make the Ministry of Health a health information custodian and
would make the Minister of Health accountable for the uses within the Ministry of
Health, with oversight by the privacy commissioner. This builds
on what's there in FIPPA and MFIPPA now.
I want to refer to the issue
around access to your own record. The comment was made that the
bill denies individuals ready and assured access to their
personal health information. I draw attention to section 45 of
the bill, which makes it clear that an individual is entitled,
with certain limited exceptions set out in section 48, to obtain
access to records of personal health information relating to the
individual that are in the control or custody of the health
information custodian.
Those exceptions set out in
section 48 are time-tested exceptions, already present in other
Ontario statutes, such as FIPPA, the Mental Health Act or the
long-term care act. For example, a custodian must consider, when
there is a request for disclosure of information and disclosure
of an individual's file to that individual, whether the file
itself contains information that violates the privacy of another
person. This is one example of the sorts of exception that a
health information custodian is grappling with when you're
dealing with a complex file that potentially includes information
not only about an individual but about an individual's family or
an individual's children.
Certainly, the intent is not
to deny individuals ready and assured access to their personal
health information. By providing a legislated right to access
your own files, the bill takes what is currently in place only in
common law and expands it legislatively across the health system.
It also takes the place of what's currently in the Mental Health
Act and expands it. I'm sure there are significant areas of
legitimate disagreement and discussion around what the exceptions
should be; however, it's hard to construe the intent as a
mechanism for denying people access to their records.
On section 48, which is the
access provision, the comment was made that section 48 would
allow a custodian to refuse a person access to their information
if it could be expected to result in harm to the treatment or
recovery of the individual. This is consistent with an exception
that's been used for many years under section 36 of the Mental
Health Act. Its purpose is to not allow the patient access to
information in very limited circumstances where the information
might be detrimental to an individual's recovery, as it's written
in the Mental Health Act. Recall that the Mental Health Act
provisions in section 36 are repealed by Bill 159. Therefore,
it's a carry-over of what's already in place. The Supreme Court
of Canada decision in McInerney v MacDonald recognized that the
presumption of access can be limited where disclosure would
result in harm to the patient or a third person.
On the issue of fees, and
this is one where I think it's important to look at what's
currently the practice, "Custodians would charge a fee to allow
people to see their personal health information. Since the fee
will be set by regulation, we have no way of knowing whether this
would present yet another barrier to access."
Fees set by regulation allow
you to place a limit on what can be charged by an individual
health information custodian to a patient seeking to access their
file. There is currently no limit; it's not set. In fact, this is
an area where we anticipate there will be significant discussion
and there will probably be differing ideas on whether it's
appropriate to set a limit. But for clarification, the ability to
set a limit is one that should be understood as a cap, not the
ability to introduce payment.
The issue around a fee for
accessing information, having information copied: the general
approach under the Freedom of Information and Protection of
Privacy Act is that individuals seeking access to information
under FIPPA are required to pay fees prescribed in the
regulations. It's consistent with FIPPA. Certainly in terms of
the intent of the bill with regard to its rolling out in the
health sector, we've heard, through consultations, concern that
there isn't a limit on how much a physician or another health
information custodian can charge to get a copy of your file. So
the language may not be clear, the drafting may not be clear; the
intent is to place a limit.
A comment was made that
section 68 allows individuals to file a complaint with the IPC,
but they must pay a fee to do it. Here we would refer to section
51.1 of FIPPA. This is not a provision that's been invented; it's
a provision that's in place now. Setting a fee by regulation can
mean setting a fee of $1. It can mean setting a fee with certain
provisions that would recognize cases of individual hardship.
There's flexibility around how you set a fee through reg, which
is in part why you would use a reg to do it. It's also a way of
keeping up as times change.
With regard to the issue of
the statement of disagreement and the attachment of a statement
of disagreement to an individual patient's file, I'm respectfully
going to ask not to comment specifically on that section, as
there is litigation underway that the Ministry of Health is
involved with regarding a statement of disagreement. I would
merely outline in general terms that currently the intent of the
bill is to allow an individual requesting a correction to their
file, where there is a disagreement and the IPC, after mediation,
is unable to resolve that disagreement and the health information
custodian will not make a change to the file, the bill as
proposed would give the IPC the power to issue an order to attach
a statement of disagreement.
I understand this is going
to be an extremely difficult situation to discuss an important
clause in the bill. However, as the IPC commented, it's hard to
go into great detail around this whilst litigation is underway.
We've been seeking advice from our legal department on how far we
can and can't go around this piece.
1410
Ms Lankin:
Could I just ask a brief question on that? What I understand is
that the current OHIP provisions of refusing to correct the
factual record of the treatment received by the patient is under
litigation. This is a new bill that's before us. I can't see why
anything would prohibit you from talking about the actual
provisions in this
legislation, what will and won't be done and why it will and
won't be done. It's quite separate from the existing situation,
which is subject to litigation.
Mr
Jackson: That's a fair comment. But as you're aware,
when the committee goes down the road, sometimes it doesn't stay
exactly on discussion of the bill before committee. But insofar
as I can speak factually about what's in the bill, I'm prepared
to speak factually about what's in the bill.
Ms Lankin:
When we get to that section and ask questions like why it would
be the Ministry of Health's position in this legislation that
someone can't correct the record, you'll be able to answer that,
because that's the position that is taken in this legislation as
well.
Mr
Jackson: I'm not going to be able to answer in terms of
anticipating what may or may not be the Ministry of Health's
arguments before the court.
Ms Lankin:
No, no, defending the legislation as it is proposed in front of
us. I understand there's overlap, but come on, the committee has
to deal with the bill and we can't be told there are sections of
the bill we can't deal with because existing legislation is under
litigation. I know it's a fine line, but I'm asking you to walk
it and to co-operate with us in terms of what this bill proposes
and the ministry's defence of this proposal.
Mr
Jackson: Insofar as there's a recognition of that fine
line, and sometimes I'll be trying to stay on the right side of
it, then yes.
Ms Lankin:
Fair enough.
Mrs
McLeod: Mr Chair, can I ask Mr Jackson to repeat the
very last comment he made about appealability under this
section?
Mr
Jackson: Sorry. Could you repeat the question?
Mrs
McLeod: Could you repeat the statement you made about
the ability of an individual to appeal under section 50?
Mr
Jackson: Where an agreement to change the record has not
been reached, the individual can go to the commissioner and
basically complain to the commissioner. The commissioner has the
power, then, to enforce the attachment of a statement of
disagreement.
Mrs
McLeod: I'll just raise it as a question now, and
hopefully we can get some clarification. That's not how I was
reading subsection 50(9), and that is not how either privacy
commissioner understood the right to appeal. I think subsection
50(9) qualifies it in such a way that the right to appeal is not
there, providing a reason for refusal has been given. I would
appreciate some clarification before we get to
clause-by-clause.
Mr
Jackson: With regard to directed disclosures-this is the
authority of the minister to direct the disclosure of certain
information and data for purposes set out in the act-the comment
was made that the disclosure of personal health information to
and by the minister can take place with virtually no
accountability. What we would draw attention to are the current
directed disclosure provisions that exist in several pieces of
legislation without oversight. We would also draw attention to
the fact that the section 12 limits are there to be put in place
on directed disclosure, and the general-
Ms Lankin:
Sorry. Would you repeat that?
Mr
Jackson: The section 12 limits are in place also to
apply to directed disclosure. It is the general right of an
aggrieved person to complain to the IPC. Insofar as this
constitutes virtually no accountability, we would have to
juxtapose that with the status quo.
On the issue of research,
to quote the commissioner, "Section 32 says that a custodian can
disclose personal health information to a researcher provided a
research ethics review board has approved the researcher's
project. Not only is the right of individuals to give or withhold
consent denied, but someone else would have the power to exercise
that right for them."
A mandatory research ethics
review is required in other provincial privacy
legislation-Alberta and Saskatchewan. Manitoba has approval for
the research given by the information and privacy commissioner
established under the act.
The consent of the
individual with regard to large-scale research or research
projects and the requirement of mandatory ethics review:
mandatory ethics review would take us from a current situation
where there is no requirement to go through ethics review to seek
to utilize personal health information, to a situation where it
would be mandatory, and if the ethics review board determined
that consent would be required, consent would have to be sought
if you wished to proceed with that project.
The question was also
raised around the composition of the ethics review committee. I
think it's fair to say that that, in and of itself, is an
extremely complex area. We've got a large number of research
ethics review boards up and running now, and the intent of the
regulation around that is partly to be able to look at and do a
thorough review of the existing ethics review committees that are
up and running and how best to ensure a consistent standard
across the board. It's not one where it's easy to come up with,
"OK, you've got to have these five interests." It's a complex
area that there has been masses of writing on. The proposal in
Bill 159 basically makes us consistent with a number of other
jurisdictions and tightens the research requirements.
Under this area, I would
also draw attention to Bill C-6. Although consent is the general
rule under C-6, the organization need not obtain consent for the
use or disclosure for research purposes, provided it informs the
federal Privacy Commissioner of the disclosure.
In a jurisdiction as large
as Ontario, with multiple researchers involved in multiple
aspects of day-to-day research in terms of epidemiological
trends, health system utilization trends, health system demand
management trends, we would ask the committee to consider whether
the requirement to notify an IPC, or approval through an IPC,
would be a workable solution for the day-to-day significant
number of research projects that take place. The issue of whether
research should be authorized to proceed without consent is most
appropriately considered, looking at the privacy aspect only or
the privacy aspect
vis-à-vis the social good that may come from a research
initiative. It's one that other jurisdictions have grappled with.
The issue of whether IPC approval is required before, becomes a
large question of whether that is operationally feasible, given
the sheer volume of research that takes place in Ontario.
Comments were made by the
federal Privacy Commissioner regarding computer matching. The
computer matching of personal health information, for instance,
is a big concern because of the exceptions in section 14. It was
termed, in essence, that computer matching is another disclosure
without consent.
On computer matching, it is
fair to say that it's difficult to know how computer matching is
best regulated, because legislative rules are still evolving in
this area. It's a very new area. The challenge of coming up with
rules that are workable next year and that will be workable 10
years from now is a significant issue. There are also no
legislated provisions in Ontario's public sector privacy
legislation, FIPPA and MFIPPA. Insofar as the issue of computer
matching is elevated to the status of legislation for
consideration and discussion, it brings us forward in terms of
the scope and technicality of the privacy protections you are
putting in place.
It at least lays the
foundation for a more modern approach to privacy protection, one
that recognizes the unique challenges that come through things
such as computer matching. It's also true to say that Manitoba
and Saskatchewan chose not to regulate in the area of computer
matching; only Alberta has data matching in its health
information statute.
1420
Comments received during
the consultation on the 1997 draft indicated that the ministry
needed to remain fairly flexible in the way in which it
structured the section of the bill, in large part because of the
rapid pace at which computer matching was growing.
Ms Lankin:
Which section does this refer to?
Mr
Jackson: Section 14 is computer matching, and the 1997
draft and the comments that we received on that.
We were grateful for the
offer of the federal Privacy Commissioner to maintain an open
door and to engage with the process. We anticipate that there are
areas where there are going to need to be examinations and
re-examinations. That's fairly consistent with processes that
other jurisdictions have gone through in crafting legislation of
this type.
We would suggest, by way of
final comments, that ultimately the issue of the balance between
privacy and the appropriate use of health information within the
health sector is both complex and nuanced. You're legislating in
an area where other legislation currently exists, where there are
multiple challenges.
It's certainly true that
the draft legislation of Bill 159 before you is complex; I will
not deny it's complex. Perhaps the bill is too complex. With the
situation out there with regard to the utilization of health care
information by hundreds upon hundreds of providers, hospitals,
long-term-care facilities, mental health clinics, all with
somewhat different needs, and given the increased sensitivity of
this area, perhaps the bill can be less complex; but the issues
are extremely tough and we would be saddened to see the work that
has gone on to date, which has gone on under not only the current
government but governments before it, withdrawn because of the
complexity of the issues.
The Chair:
Thank you very much. With that, perhaps we can start our
deliberations, go through section by section. I think, Mrs
McLeod, that was your preference.
Mrs
McLeod: Yes, thank you very much, Mr Chair. Could I ask
a general question before we get down to clause-by-clause and
then we'll look for your direction as to how proceed with the
clause-by-clause questioning?
The Chair:
Sure.
Mrs
McLeod: I appreciate the fact that you were, to use your
terms, caught by surprise by the federal Privacy Commissioner's
presentation. We'll go through and look in more detail at why
this bill is different from what the federal and provincial
privacy commissioners in many areas have said is indeed in place
in most jurisdictions. What we're trying to do here is establish
the differences in intent as well as the specific differences in
clause, because clearly in the presentation of the two privacy
commissioners they've said that this bill goes far and away
beyond in terms of both opportunities for collection disclosure
and in the limitations on access than the bills in any other
jurisdiction.
So even though you've made
reference to other jurisdictions at different points, as we
pursue it clause by clause, I think we'll see that this bill goes
beyond what is place in those other jurisdictions in terms of
how-yes, there are limitation in other jurisdictions; yes, there
are exclusions in other jurisdictions; yes, there are definitions
of custodians; but the comments of the commissioners were that
this goes far beyond what other jurisdictions do.
But I guess my overview
question, because that becomes part of clause-by-clause
discussion, is that at the end of the day surely this has to be
compatible with federal legislation. I agree that we want to have
a health privacy bill, but if it's not compatible, the confusion
that is introduced is not manageable for any of the people who
are either collecting, using or potentially disclosing health
information.
Mr
Jackson: With regard to the first question, on the
comparability, it varies area by area. There are areas where the
bill in front of you has tighter provisions and there are areas
where it has weaker provisions. It varies jurisdiction by
jurisdiction. It would be hard to say carte blanche-
Mrs
McLeod: That's why I was going to do that in
clause-by-clause. I acknowledge that.
Mr
Jackson: Yes. It's something you can only understand in
clause-by-clause. There are differences both ways.
With regard to C-6, as you
know, the requirement in C-6 is that for C-6 not to apply,
provincial jurisdictions would have to have in place substantially
similar legislation. Certainly from what we've heard in the past
from health care providers in Ontario, there is concern that
without some sort of overall framework, C-6, wherever it gets
determined, inside or outside of the doctor's office, establishes
one set of rules and FIPPA and MFIPPA are already out there. Yes,
I think the federal Privacy Commissioner, in the comments about
the waste that would exist in terms of the regulations-it's a
concern that many in health care share.
Mrs
McLeod: How would you like to proceed, Mr Chair?
The Chair:
If I may just answer that, we had actually got no further than
the definitions section, as I recall, so if you want to continue
on in that section if there are any other questions of the
ministry, or we can move into subsequent sections now.
Ms Lankin:
I would just like to ask one preliminary general question as
well. I agree with you that if we could move into the
clause-by-clause, I think having the ministry present the clause,
the intent, any comment they have about the controversy that may
exist around that clause from people in the field and/or either
of the privacy commissioners, and then allow members of the
committee to question might be a reasonable way to approach
it.
On the general question of
the response to the federal Privacy Commissioner's remarks that
you provided us, I guess this flows from what Mrs McLeod just
raised. The commissioner could not have been any more blunt or
direct; it was a bit breathtaking for all of us. He said very
clearly that this did not make the grade in terms of the test of
"substantially similar" in terms of his assessment of it. It is a
cabinet decision, but his recommendation to cabinet, if this bill
remains, not unchanged-because if you read his comments he says
it's without hope, it can't be fixed, it has to be scrapped, and
start again. It's a pretty high bar that he has set for us to
reach, through committee, committee amendment, House amendment
and passage of a bill-it's pretty hard to reach a point where he
will be recommending this framework, even with amendments, as
being substantially similar.
I'm not sure where that
leaves the work that you're doing on a policy basis and/or that
this committee will be doing on a policy basis, and whether or
not there are some preliminary discussions that need to take
place to understand where the federal government is at with
respect to provincial health privacy legislation, not just in
Ontario but across Canada, because you have and will continue to
draw our attention to similarities with other provincial
jurisdictions. It feels a bit to me as if we're just going to
roll merrily along here. If not, if there is a sense within the
ministry of needing to go back to preliminary discussions about
the expectations of the federal government around C-6 and
provincial legislation, and/or that may lead the ministry to look
at a major rewrite of the legislation, I still have the question
in my mind, of what benefit is it for the committee to proceed
with hearing from all sorts of stakeholders on all the points of
view that have already been done through two consultations around
these provisions, if they are going to be subject to dramatic
change?
If I may, even in your
presentation you specified many areas that could be rewritten,
redrafted, could be changed, could be tightened up. I feel as if
the ministry is not at the point of really having a near final
piece of legislation to present to us as a committee to work
with, and I wonder if there have been discussions within the
ministry and/or with the minister. Can you share with us what the
intent is in terms of a more substantive response to the dilemma
the federal Privacy Commissioner has presented you and this
committee with?
1430
Mr
Jackson: Certainly in the opening comments I made around
the presentation of the material, one of the first points that we
stated is the challenge of not having "substantially similar"
defined in general ways. "Substantially similar" is still not
defined. The federal Privacy Commissioner has provided some
insight into what that might be.
Ms Lankin:
At the very least he says this doesn't cut it.
Mr
Jackson: It raises a much bigger issue. I'm not going to
go down the road of other jurisdictions. However, should Ontario
know what constitutes "substantially similar"? The answer is it
needs to know in more detail than currently exists.
Ms Lankin:
The second part of the question was: has there been any
discussion that you can share with us that would enlighten us as
to the ministry's advised path for this piece of legislation,
given that we don't have a more definitive view from the federal
government on what "substantially similar" means?
Mr
Jackson: It's a determination that's going to have to be
made through the Chair and through the committee.
Ms Lankin:
That's a lot of power he just gave us, Mr Chair? I'm not sure the
minister would agree with that.
The Chair:
Well, all those federal MPs just talk about it-glad to see we've
taken the action at this end.
Ms Lankin:
Thank you.
The Chair:
With that, in the interest of getting the maximum benefit out of
the folks from the Ministry of Health while we have Ms
Cavoukian's comments here-and, just to be fair to them,
apparently these just arrived-as we go through, if you wanted to
cross-reference anything Ms Cavoukian has said, then you could do
that at the same time.
Mrs Sandra
Pupatello (Windsor West): Chair, if I could ask a
question of the staff before we get into this
clause-by-clause?
I'll put it as an example.
In what you presented, while we weren't able to follow it
specifically along with you, take the matter of the fees for
accessing your own medical record, for example. What your
explanation is, given the concerns that the federal commissioner
had in suggesting that it is not acceptable to have this enacted,
you came back today and suggested that the intent, in fact, was
not to have these exorbitant fees to access personal records, but rather you were intent
on putting it in legislation so as to ensure there's a cap on
it.
Just use that as the
example. If the commissioner came to us a week or more ago and
said that this is highly inappropriate, you come back today and
tell us that the intent is actually to place a cap on it, so-much
like the FOIs now, we pay exorbitant amounts in some cases to
access information that should be very easily accessible to the
public and it becomes prohibitive-there's clearly a difference in
opinion as to the basis of it. You've selected to say that you
can cap it, while the federal commissioner says no, that's a very
different position on that example and every one that you've
spoken of, where there's clearly a difference philosophically of
the intent of the bill, I would suggest would be the best example
of the definition of "substantially different."
So, while you're saying to
us in one breath, initially, "We don't understand what they mean
by `substantially similar to C-6,'" I'm suggesting to you that
it's actually quite easy to determine what they see as
substantially different. On each point they raised, it's clear
they're pointing out that you've managed to change the very
intent of what the law should be. If we in fact asked the
commissioner what in the long run happens if you pass this bill,
and that it eventually will be litigated and go through all the
machinations and we lose, and the province of Ontario cannot
support bringing in this bill, because it is not parallel to what
the feds are looking for, do you think it's in our best interests
then to take every one of the examples that both the provincial
and federal commissioners-but more so the federal
commissioner-have made, where it's so apparently different, that
the intent of the law was written differently, that we've come to
some determination, and it might become a political decision,
then, that our intent is X? Down the road that means they are
simply never going to agree with what you are bringing in as
potential legislation. It's not a quandary to me, based on what I
heard from the federal commissioner, why he thinks this is so
different. I can only pick one example of the one you gave, like
the fee-setting. Your intent is different, and he made many
examples of where your intent is different from theirs. So I
think it's not difficult to understand why they're not supportive
of this. Ultimately, someone makes the decision that it's written
in a manner, and it's of no interest what the feds say about this
law; we're going to go forward because our intent is much further
access, little or no cap fund disclosure etc, as we perceive this
bill to have been written.
Mr
Jackson: It's for the Ontario Legislature to determine
what the final bill is, but just in terms of the issue of C-6 and
the issue of fees with regard to access, it's certainly the
intent of C-6-it's drafted largely as a commercial bill-to
regulate e-commerce. That's some of the main intent behind the
bill. So, in that it was not drafted with the intent of
regulating health care, there are going to be areas where
"substantially similar," for it to work within health care, will
need to be interpreted certainly more broadly than the FPC's
comments around the interpretation. Does that mean the bill could
not evolve into a piece that was closer? Yes, but there are going
to be certain areas where there are unique needs for health care;
for example, directed disclosures. There is no grappling with the
issue of directed disclosures in C-6 because the health system is
regulated by and large on a provincial level. It's a provincial
absence of data that will show up in the auditor's reports at the
provincial level. So there are specific challenges to the health
sector that need specific provincial solutions, whether it's
through this act or whether it's through a future act under a
future government. The problems will be there and the problems
will still be specific to health.
If I can speak specifically
to the issue of fees to access your own information, this is one
where it's fair to say that we have had an extensive dialogue
with the provincial privacy commissioner over many years, not
just myself but my predecessor and my predecessor's predecessor,
on this type of framework, and it's also true to say that the
provincial privacy commissioner faces the challenge of balancing
the issues of privacy and the appropriate use of information
across the system. So it has not been flagged by the provincial
commissioner as a concern that there's a reg in there that would
allow you to set the fee for what would be acceptable to access
health records. The thinking is that that provision is so
fundamental that there should be the ability for any government
to prescribe that cost. The alternative is that it's not set and
the status quo remains and de facto you will hear horror stories.
So in that C-6 doesn't contain a provision like that, it doesn't,
but it's grappling with a different problem.
Mrs
Pupatello: So when the commissioner said to us the other
day-I think he counted 30-odd opportunities in the bill for
various details to be set by regulation. For all of the examples
he gave, he suggested that it was completely unacceptable that so
much of this detail would be by a stroke of the pen, by order in
council etc. Understanding that is something completely
unacceptable to the federal Privacy Commissioner, would you not
take that-one, I find it hard to believe that there would be so
little communication in advance of actually tabling a bill that
you wouldn't know before it got here that the federal
commissioner would have such a significant level of discomfort
with our bill. I'm speaking more to the process of how we operate
with other Parliaments. I find it very difficult that if that's
very significant, surely you would go back and say, "Well, there
are 35 or 37, and if that's a significant concern, which
apparently it was, then there would be a number of areas where
that ought to be struck out of our bill because it is not in
keeping with what they want to see as strikingly similar
legislation." But that process never happened. It's apparent to
me that that is one more example of the tweaking-I don't want to
call it "tweaking," because it's more serious than that, but
changes you would then make to legislation.
1440
Given how separate and
disparate we are on the issue between one level of government and
the other, would you
recommend that you ought to have another hand at drafting this
before it goes through and goes into clause-by-clause? It becomes
a basic issue of the provincial commissioner, who suggested a
major redraft, versus the federal commissioner, who considered
tossing it into the pail outright. That's a very far-apart
position to have and that leaves you saying, at minimum, that
maybe we can take the federal commissioner's comments and come
back with some very significant changes to what's only at first
reading.
Mr
Jackson: To answer that, I'm sure the committee is going
to scrutinize every regulation-making power.
Mrs
Pupatello: In fact, the regulations aren't apparent to
members of the House until after they've been-
Interjection: We never see
them.
Mr
Jackson: I'm talking about the reg-making power in the
bill in front of you, where it spells out "can be set by
regulation." Certainly that is an area where I anticipate there
is going to be a lot of discussion about whether it's appropriate
to have a certain reg-making power. I'd suggest that has to
balance off. It has to be balanced off between the desire to keep
a piece of legislation flexible and up to date, which is the way
you would tend to use regs, but providing sufficient assurance,
which is when you typically put stuff in the main body of the
legislation.
With regard to the comment
on the federal Privacy Commissioner, first, it's a relatively new
federal Privacy Commissioner who has come in. We have followed
the comments of the previous privacy commissioner closely and we
followed the comments of our own privacy commissioner closely. I
wasn't being dishonest when I said we were quite shocked by the
comments. It does raise an important question about the need to
keep the lines of communication open with the federal
commissioner as we go ahead. The example we just talked through,
the issue of setting fees, is a good example where that could
have been clarified, and at the committee level you sought and
got an undertaking from the federal commissioner to keep lines of
communication open.
Mrs
Pupatello: A final one just before I pass it off. I read
about what the federal commissioner's response was going to be
before he ever got to this committee because he was quite open
about it in various media opportunities that he took. So before
we came that day we had a very good sense of what he was going to
say in quite a bit of detail. I knew before I got here, and I'm
relatively new in the scope of things at Queen's Park, so I'm
surprised that you would be that surprised.
Second, it does come down
to that jurisdictional argument: are we, the Ontario government,
responsible for writing it as we'd like to or are we finally
going to be subjected to the federal government telling us that
we had better get our house in order and draft this bill
appropriately because it's not going to be accepted anyway? That
was the question I was trying to ask the federal commissioner,
and he couched his answer fairly carefully when he said there is
a particular road someone would have to travel to finally
challenge, but that it ultimately would be.
Mr
Jackson: It's not for me to determine what Legislatures
decide to do. I think the issue before the committee is to craft,
within the confines of what we know to be substantially similar
and within the confines of what we know to be the rulings that
have been made on substantially similar or the determinations
that have been made on that, the best possible bill. That, I
would say respectfully, is the challenge before you as
legislators.
Ms Lankin:
I appreciate that and I think we need to be careful in separating
out the role of the actual passage of legislation and the work
that's being done internally in the ministry. I am fully
cognizant of how shocked the ministry was by the federal
commissioner's presentation. It does, however, present a very
real issue in terms of how we proceed.
Mr Chair, I think the
ministry staff are unable to answer this question. At some point
I think the committee might have a discussion. I would like to
propose that as a committee we think about asking the minister's
office, through the parliamentary assistant, to advise the
committee whether it is the ministry's intent to do a substantial
rewrite on the legislation and whether they would like time to do
that before we proceed with hearing deputations or not.
But today, given that we've
tried this a couple of times and haven't gotten to it, I'd really
like to get through clause-by-clause so that wherever we go from
here, even if it's a major rewrite, we will have an understanding
of the intent of the bill as it has been written and what changes
either we as a committee make or the ministry makes and comes
back to us with.
The Chair:
Thank you, Ms Lankin. In exactly that same spirit, that wherever
we go as a committee in terms of the specifics of the bill, the
ministry has told me that it is up to the committee to make the
decision about having the hearings, on your behalf I indicated
that no one had come to me and suggested that we didn't want to
hear from the 95 or 96 people who have expressed an interest in
speaking on the issue of health privacy. Presumably that too is
important to hear before we make a decision as to whether or not
the bill, as is currently before us or as amended, should
proceed.
Ms Lankin:
With all due respect, Mr Chair, the last time we met, I raised
that very issue with you. I did receive a lecture or two from you
and told you how much I appreciated that-
The Chair:
Freely given; glad they're appreciated.
Ms Lankin:
-I say tongue in cheek. I'm sorry.
The very point I
raised-which is worthy of a discussion, but I don't want to yet
again waste the ministry's time and not get clause-by-clause-I
think the committee should discuss.
My own personal point of
view is that if we, the collective legislating body, are
presented with a view from the federal Privacy Commissioner that
there is very little way in hell, to put it bluntly, that this
legislation can be made to be substantially similar to the
federal bill, which is
the requirement of the law of this land, then I would like to see
the ministry take another crack at writing this bill to correct
some of those problems and the substantial problems presented by
the provincial privacy commissioner and have that bill circulated
out so that the views of presenters from the health care
community, whose views are incredibly important to this process
and to the committee, are actually on a piece of legislation that
the ministry intends to proceed with, one which we have a sense
that the federal commissioner would find substantially similar,
as opposed to a piece that seems to be doomed.
It's not that I don't want
to go through listening to people about the bill. I've received
many deputations already and have been in discussions with
people. It's simply that if the rug's going to be pulled out from
underneath us as a result of what we can see, this process of
matching federal Bill C-6, then surely it is in the interests of
everyone to have a more up-to-date piece of legislation that we
are asking the public to comment on. That may not be the majority
view of the committee; I understand that. But it is a position
that I put on the table asking us to consider the last time
around, so I think a representation on our behalf to the ministry
that no one has suggested that perhaps we look at this process is
not quite accurate.
The Chair:
Again, I think it's up to every member of this committee to
determine, at the end of the proceedings presumably, whether or
not one submission we had from Mr Radwanski is the one on which
they'd like to form the basis of their vote.
I appreciate what Mr
Radwanski said. I would also draw your attention to the fact that
he said very pointedly he would not comment on any proposed
amendments and would deal only with bills as faits accomplis. I
think that leaves you and all of us as members under the
frustrating situation that we don't appear to be in a position of
asking for comment on proposed changes to this bill, and that
they will be taken in their entirety or not at all.
Ms Lankin:
That's not what he said.
The Chair:
That was certainly the way I interpreted his comments when
offered the question by Mrs McLeod, I think it was.
Ms Lankin:
By me. I've got it right here.
1450
The Chair:
And to the question of what in the Quebec, Alberta or
Saskatchewan bills he would find attractive or not, he said, "I
will comment at some point in the future." In the absence of
those standards, I say, with the greatest respect to Mr
Radwanski, that it's up to us to do what we think is best for the
people we represent. At some point in the future it may very well
be a question for Mr Radwanski and the federal Parliament to
reconcile what we have done. I think we need to take his comments
into account, obviously; I agree with you there without any
debate. But at the same time we have about 100 other people who
want to comment on the bill before us right now, and then I think
it will be appropriate for us to determine whether we proceed
with this bill as is, as amended or not at all.
Was your hand up, Mrs
McLeod?
Mrs
McLeod: I understood, in response to my question, that
the federal Privacy Commissioner certainly indicated he wasn't
prepared to work on the actual drafting of amendments, which I
appreciate. But I thought a redrafted bill would be something he
could comment on, as he has commented on-
The Chair:
I agree. He said bills in their entirety, but I think that's very
different than the spirit in which we're trying to undertake
these hearings. I must stress that as a first reading bill,
nothing is cast in stone. I suspect you will find it frustrating
if there is not a process that would allow you to offer up a
suggested amendment and see if that passes muster. So I think the
question we have to deal with as a committee is, given that this
is first reading and given that the bill is as flexible as bills
can ever be at this stage, whether it's appropriate to listen to
the people who want to comment philosophically as well as to the
specifics of this bill and take those views forward, both to our
ministry and individually as members of this committee.
Mrs
McLeod: Quite frankly, I think it's of value to go
through the public hearing process. I think it's of value to hear
the concerns that will be raised with the bill. I think we'll
hear a lot of concerns that will reflect the concerns raised by
the privacy commissioners. I think we'll also hear some views on
the other side of the issue, which is perhaps less rigorously
protective of privacy as is the role of the privacy
commissioners. So I think it's worth hearing.
I guess one of the concerns
that may be under the surface of this discussion is whether the
government is prepared to bring back an amended bill if the
process of public hearings is sufficiently controversial that it
looks difficult, and this is a difficult bill. I would hope we
could go through public hearings, have the controversy, have the
debate and still at the end of the day be prepared to look at
whether we can draft a bill that would be compatible with federal
legislation.
The Chair:
I would only comment that the two precedents we've had before
this committee, the Mental Health Act and the franchising act,
have both seen just such a result, having gone through public
hearings. So I would be confident that any good idea that's
brought forward would be reflected unanimously.
Mrs
McLeod: I'm less so on this one, but I'm prepared to
try.
Mrs
Pupatello: Given the other examples, I don't think there
was such a jurisdictional issue. I'm still not clear in my mind
and wonder if we could request a legal opinion through the Chair
on jurisdiction.
Should this bill go forward
and become law and in the eventuality of its use then go back to
the same questions we put to the federal commissioner, where he
took a polite way in the end to say that his law essentially
prevails and it's so completely different from ours on so many
counts, why would any one of us go through the process only to know we're
actually bringing in a bill that is completely unacceptable?
I agree with the hearing
process, and we do want to hear that, but it could be that we all
have to acknowledge we have to change the lion's share whether we
like it or not. It becomes that kind of notion. We either want to
go forward and find that out in advance by going through all of
this or-I just don't understand why all of us would not want to
know in advance that there are some significant changes as to the
intent of how it's written, which we have to make. Why would we
not do that before we go forward? It just doesn't make sense to
me not to do that.
I don't want to get into
some kind of contest of wills: "Our bill is more important," and
" We are going forward anyway." We are part of a federated
nation, and this is something we have to do whether we like it or
not. I don't want to be so intransigent on this process as to do
something that is really not sensible. It seems so sensible and
realistic to me to call him on the phone and say, "If we prepared
a draft that incorporated a number of changes as to comments you
made, would you look at this and give it some comment?"
He seemed completely
prepared to do that when he was here the other day. I did not
interpret his comments as saying, "I will only look at a final
bill." He didn't indicate that to me whatsoever in his remarks.
He seemed quite interested, quite passionate about the fact that
we ought to pass a very good bill, is how it seemed to me. I
would take on that challenge. If the Chair isn't comfortable
calling him, we could do that, we could make that call, do
whatever to make sure we're going forward. Gosh, 75% of this bill
would be out with the stroke of a pen. I just want to ask, can we
go for some legal opinion in terms of jurisdiction?
The Chair:
I'd be happy to ask the legal branch for a briefing note
outlining the different responsibilities. I think Mr Radwanski
made it quite clear, but I'm sure we can get further
elaboration.
Mrs
Pupatello: Could you explain to me, Chair, whose advice
we from this committee seek about that huge disparity between
this bill and the federal commissioner's opinion? Whose advice do
we seek to say what we ought to do?
The Chair:
I think it would be up to your judgment as an individual to read
that briefing note and reconcile what you will be doing: voting
for or against this bill as is, as amended or no bill
whatsoever.
Mrs
Pupatello: Does that mean, then, that as Chair and as a
committee member you're not prepared to have some discussion
around rewriting before we go further with some of the
significant points-
The Chair:
I guess I'm a little confused. That's what this process is. We're
here to listen to submissions and then possibly prepare
amendments to the bill. What is there different about this bill
from all the other ones you've sat on in committee?
Mrs
Pupatello: Because it's practically the whole bill.
There's a problem with every section in such an alarming manner
as not to be acceptable by the federal Privacy Commissioner. It
was pretty incredible to hear that presentation, and his
government takes precedent over the provincial government in the
area of privacy law. That's why. It's not that difficult to
me.
The federal law is going to
take precedence. The federal Privacy Commissioner told us this in
no uncertain terms. Although it will take quite a bit of
litigation to prove that, that's the way it is. Since so much of
it is wrong, I would think we would want to try to redraft,
because we could make some immediate changes in not too difficult
a manner. I have a suspicion that some of those changes were
probably what existed in former drafts of this bill. That's my
personal opinion that I'll advance. I believe that to be the
case, and I do not think it would take a great deal of work for
Ministry of Health officials to do that, and we'd go forward with
a pretty good bill in hearings and hear from people.
Chair, I'm really
incredulous that we would be that intransigent on this. I just
want to ask if the committee members have any opinion on this
matter.
The Chair:
Ms Pupatello, questions go through the Chair. Mr Spina, you're
next in the speaking order.
Mr Joseph Spina
(Brampton Centre): I have a short question, first, of
the ministry staff. Did you come here today prepared to address
each of the suggestions by Ms Cavoukian, the provincial
commissioner?
Mr
Jackson: While we've seen Ms Cavoukian's original
submission, we have not seen the new drafted version that has
recently come to you-I believe it has come to members. We have
seen an older submission.
Mr Spina:
Is it fair to say you would not be fully prepared to respond to
questions any of us would have on any of the commissioner's
amendments?
Mr
Jackson: Without having had a chance to go through what
looks like a fairly significant file, that's fair to say. We have
followed two of the IPC's general submissions. The IPC's last
submission was based on a response to a consultation document,
which was at a very different level. It wasn't on language that's
specific, clause-by-clause. We would be prepared to respond to
those or to engage with those; we haven't yet seen them.
Mr Spina:
With respect, Chair, I liked some of the comments I heard from
the opposition, particularly Ms Lankin. I think it would be a
waste of time, to some degree at this stage, to go through all of
this. We are anticipating 90-odd other submissions from other
members, people from the public and other organizations, which
are to be taken into account by this committee. Also, with
respect to the concerns that Mrs Pupatello and Mrs McLeod have
with regard to the consistency, we really don't have a legal
ruling as yet as to the consistency between our privacy
commissioner, the federal Privacy Commissioner and the
jurisdiction of our proposed law versus any federal laws. I think
more work has to be done.
1500
We need the legal counsel,
and I think it would be fair, before we start putting amendments
into a bill, that all of the submissions come in. Staff will have had an
opportunity to comment and advise not only the ministry but also
advise us as members of this committee on the repercussions of
any amendments that are being proposed or not. I think then we as
members are in a position to make a decision, to debate it in the
proper and fair manner so that we can ensure that whatever comes
out of this process is the best possible bill we can have that
will be functional and acceptable within the federal jurisdiction
and yet something that will be workable for the province of
Ontario. I think that for us to try to prejudge at this point-we
just don't have enough complete information to be able to discuss
it and debate it even among ourselves and to make
recommendations. I think that to get into this at this point
would be partially a waste of time, and I think these people
should have a better opportunity to advise us on their
perspective.
Ms Lankin:
I appreciate those comments, Mr Spina, and I do understand the
point you're making, Mr Chair, with respect to this being a first
reading bill and an opportunity for a bill that's not written in
stone to be worked with by committee and by members of the public
in representation to committee. In a sense, it would be ideal if
we could actually rename this and say this is a white paper we
have in front of us instead of even a first reading bill.
The problem I'm having with
the position you've put forward is that I see the comments of the
federal Privacy Commissioner-and the provincial privacy
commissioner, but in this case the federal Privacy
Commissioner-as of such import that they're not just one more
opinion among the many that we have heard and will continue to
hear. I think it comes down to the issue of jurisdiction having
been established through C-6 and the jurisdiction resting with
the federal cabinet, on the advice of the federal Privacy
Commissioner, to determine the "substantially similar" or
not.
I feel that asking
considerable numbers of groups and individuals from the public to
come forward and comment on a bill that the committee already has
some sense needs to be dramatically redrafted in order to reach a
chance of being considered substantially similar is almost an
unfortunate waste of the time of those individuals. I guess if we
viewed this as a white paper exercise, a further extension of the
pre-legislation consultation that has been done, and we
recognized as a committee that after hearing from these people
there is going to be a period of substantial rewrite, working
perhaps in a more informal way with the ministry rather than
through formal amendments on the table at committee and that we
then, with a substantially redrafted bill, are likely to have to
go back out for public comment again, I can see my way through to
the end of this.
But one of the concerns I
would have is that we are asking people to come and comment once,
and once only, on a bill-I know that's not predetermined but that
would be my concern-and we're asking them to do it at a time when
we know in our heart of hearts that in order to meet federal
compliance there's going to have to be a major rewrite of the
legislation.
So I guess the question
before us is, does it make sense to ask the ministry at this
point in time-not this ministry but the minister's office, the
ministry in the sense of through cabinet-whether or not they
would like the time to make some amendments to the bill, to do
the best they can to bring it in compliance with C-6, and then
bring that back to us to go out to the public with, or do we as a
committee want to proceed with hearing from members of the public
and keep in the back of our minds that at the end of the day
there's most likely going to have to be a major rewrite and we
may well have to ask people to come and comment a second time and
the issues may differ greatly from the first time we asked them
to comment?
The Chair:
Ms Lankin, the only response I would have to your comment is that
I did receive feedback from the minister's office that they were
quite comfortable with us proceeding with the hearings. It is of
course within your purview to make a motion, if you wish, to
change what is the schedule the committee has adopted-any member.
I won't single you out. I will certainly respect the results of
that vote, obviously. At this stage we're in the midst of a
process that seems still to have favour at all levels. The
ministry has not indicated, at least I've not heard today, that
their predisposition would be to pull this bill off the table. If
in fact there's any action to be taken, it would be up to a
member of the committee.
Ms Lankin:
Let me indicate that I won't place such a motion because, if it
passed, there's no guarantee the ministry would do a rewrite on
the bill at this point in time and bring it back to us while the
House was sitting for those public hearings.
I know there are lots of
ways this can be communicated to the minister's office: through
committee Chair, through notes to the parliamentary assistant,
through ministry staff, through the minister's office staff. I
would ask that they give consideration to that possibility within
the next couple of days. We can always deal through subcommittee
and a conference call if there is an alternative that makes more
sense.
I think we should be
postponing the public deputations. The ministry should be doing a
rewrite on the bill and we should be proceeding, when the
Legislature comes back, with a rewritten bill to ask people,
who've had time to take a look at it, to come in and comment. But
given that there's no guarantee, from what you've heard-no offer,
let me put it that way-from the minister or what we've heard from
ministry staff or through the parliamentary assistant, that there
would be such a rewrite, I'm not going to today place that
motion, but I ask that people give some consideration to that
possibility, that idea over the next couple of days.
Mrs
Pupatello: I wanted to get a sense of security about
having public hearings, because I don't want to entertain any
kind of motion that means down the road there's a bill out there
and that we collectively have decided at this time not to go forward with
public hearings. But my greater concern is, if at the crux of
this may be a piece of legal information that the committee needs
to make a good decision about how we proceed-and I don't know
what the time frame is of getting that. The most simple way I can
understand this issue is that we are subject to federal law, and
the bill we're going to have become law needs to fit in within
the federal law.
I'll just wait till the
Chair is back.
Mr Gilbert
Sharpe: Mr Chair, I'm just wondering if it's time for me
to get into this.
Mrs
Pupatello: My question was actually going to be for the
floor.
Ms Lankin:
Go for it, then. You're waiting for this.
Mr Sharpe:
Well, not really. I was hoping to avoid it. Mr Chair?
The Chair:
Please.
Mr Sharpe:
When I spoke earlier, I described a bit about my own history with
respect to this bill going back many years, and also more
recently in terms of going to Ottawa, the House of Commons, Bills
C-54 and C-6 in the Senate and so on. Mrs McLeod raised a very
important question. She said that if we stepped back, we should
look at how possible it would be to make this bill compatible,
substantially similar to C-6. That was why the Ministry of Health
went to Ottawa twice, and that's why a number of provincial
health groups went as well, because C-54 was never designed with
health care in mind. In fact, the early discussions over two and
a half ago that various people had inside Industry Canada and
Health Canada resulted in comments like, "This doesn't apply to
health care." We initially went up there alone because some of
the groups we talked to indicated they did not think this had any
application to the health care system.
1510
When we were in Ottawa, we
asked not that federal and national privacy interests be set
aside in terms of application to health care-not that at all-but
that if there's going to be a federal privacy bill looking at
health care, it might better come out of Health Canada in concert
with provincial and territorial ministries and departments of
health with input from the health system from the kinds of people
who will be coming before this committee, starting next week, to
talk about what the very special interests and concerns are of
the health system.
Bill 159, in its
20-plus-year history, did not have in mind C-6, e-commerce
commercial privacy legislation. Similarly, C-6 did not have in
mind provincial health care concerns and the special problems of
the provincial health care system.
My view as a lawyer for
many years looking at these issues: I believe the issues are not
necessarily substantially similar. There are some areas where
there can be more compatibility for sure. We've learned a lot in
our discussions particularly with our federal Privacy
Commissioner. Ms Cavoukian and her office have been very
constructive for some years, and particularly over recent months,
in assisting us. I think that document that has just come in will
be a further clarification of some of the issues that need to be
addressed in Bill 159. But some of the positions taken by the
federal commissioner may underscore the fundamental difference in
approach from a federal Industry Canada commercial banking kind
of statute and the needs of a provincial health care system.
Regardless of whatever
legal opinions may be obtained as to whether this is the
regulation of provincial health care information, it's
constitutionally provincial jurisdiction, or whether there's an
overarching federal interest in privacy, ultimately there will
be, I'm sure, legal opinions on both sides of the issue. I think
the federal commissioner is correct that some years from now it
may or may not have to be determined in court. Hopefully not. I
think it would be very unfortunate if this became more
adversarial, more confrontational, rather than an effort at
constructively developing legislation that protects the interests
and integrity of patients as consumers in the health system, but
at the same time doesn't create problems in continuity of care
and doesn't disrupt a system that is struggling through an
evolution into a new era of high-tech integration.
When we developed this, we
were mindful of the concerns that are the underpinnings of C-6.
We came forward to Ottawa to present some of the conflicts in
conceptual principles and approach from provincial health care
needs to federal commercial Industry Canada views of the world,
but ultimately we are hoping to achieve, as I say, a result in
this legislation with the many consultations that have gone on
over many years with those who are going to come forward next
week with ongoing concerns from both sides. As Mrs McLeod said,
there will be folks on both sides of the issue continuing to
present concerns, a consultation that Industry Canada did not
undertake with the health care community, who were unaware that
that bill would have application to them or they would have come
forward and spoken to the federal government to make sure the
bill took into account these kinds of concerns.
Mr Chair, I just wanted to
present again, I guess as historian-old man, perhaps-some of the
frustrations that some of us have gone through over the many
years at the incompatibility and inflexibility perhaps of a
different jurisdiction. I mentioned last time out that I had done
work on the Criminal Code for the federal Department of Justice
and I understand, wearing that other hat, what the national
perspective can be in so many of these issues dealing with some
many different jurisdictions, but I am not certain that if the
ultimate goal is to mould this health legislation into the C-6
principles, as enunciated by the federal Privacy Commissioner,
whether that ultimately will be doing a service to consumers and
patients in the provincial health system. The effort has been
made and will continue to be made, and I would hope to be
optimistic. I'm just speaking in support of your comments that it
may be instructive to hear from others, as I know the committee
is planning to do.
The Chair:
Any further comment?
Mrs
Pupatello: Could I ask a question?
The Chair: Certainly.
Mrs
Pupatello: If there were to be any kind of review like
that, where you would take very specific examples of comments
from the federal commissioner-like the 30 items made by
regulation, which he felt was completely inappropriate-and walk
through that bill and see clearly, surely that would not be a
huge effort. With your 20-year history, you could probably write
this while you were sleeping.
Mr Sharpe:
Which isn't very often these days.
Mrs
Pupatello: You could likely turn around very quickly
some very significant points that were made by the federal
Privacy Commissioner that would be a significant change in the
legislation. Could you do that quickly?
Mr Sharpe:
As I said at the outset of my discussion last time, the specific
exceptions to consent-and there are a number of them, two
dozen-could probably be grouped in a smaller list. But each is
there as the result of input from a number of people over many
years. To add them up and say, "There are 24, and there should
only be eight or 15 or three"-isn't it more appropriate to have
the committee look at the substantive provisions and question, as
we're going to, "Why is this here, what is the rationale behind
it, who asked for it, and where did it come from?"
The same with the
reg-making authority. Why are all these here? Do they make sense
when you look at them individually, rather than saying, "There
are 30. That's too many. There should only be six"?
Mr
Jackson: Frankly, this has been a real challenge in
terms of the issue: is the number of directed disclosures too
many, or are there too many disclosures without consent? As
Gilbert said, the committee could go through and look
substantively at the rationale for each one. It may be that the
rationale is weak and the committee chooses to strike that.
We could, however, have
taken a different approach. For example, we could have had the
approach of not putting directed disclosures in the legislation
and had them scattered around in other pieces of legislation.
There is a certain openness to this that frankly makes the
legislation itself probably more vulnerable. It's there in front
of you in black and white. It's not necessarily buried in other
areas. There are privacy statutes which exist that do not refer
to directed disclosure, and the directed disclosures come through
other pieces of legislation. Stylistically, we could have taken
an alternate stylistic approach. That's for sure.
Mrs
McLeod: The third option would have been to amend the
other acts to remove directed disclosure, if that was felt to be
a problem.
I guess I'm not as
convinced that the ministry was as surprised by the substance of
Mr Radwanski's criticisms of the bill as it was by the public and
strident nature of his criticisms of the bill.
We're aware that you made a
presentation on the federal privacy bill. We're also aware that
you were aware of the federal government's response to your
presentation and their differences, and those differences are
apparent in the bill that's before us today. Those, as the
government has proceeded with its legislation, are apparently
irreconcilable differences between the two approaches of
government, not just in details of the legislation.
What I've heard today is
more a defence of what is here than a response to the privacy
commissioners. That gives me some concern about the amendment
process, and it's one of the reasons I feel we must go through
the public hearings, so that it's not just a question of the
Ontario government versus Mr Radwanski with Ms Cavoukian
somewhere in the middle, which is where we are as we sit
today.
I would like to go through
the public hearings. Let's hear the views, and let's trust that
at the end of this process there is a genuine willingness, which
I've not yet heard, to amend this bill in such a way that it is a
true privacy bill as well as being compatible with the federal
legislation, so we don't have legal chaos. Without going through
the public hearings, I'm not sure I'm looking to the ministry to
come back with a substantially different bill.
Mr
Jackson: To be fair, obviously there is a limit to the
role of bureaucrat in terms of being able to commit to changes
and non-changes.
Mrs
McLeod: I hear you.
Mr
Jackson: I would say I've probably signalled a number of
areas where alternate approaches could be done, probably more
than is healthy for my career.
1520
Mrs
McLeod: Recognizing the fact that it is the politically
elected government that will make the decisions about whether and
how to proceed with this bill, let me put on the record that I
trust that the criticisms that are still going to be raised about
this bill will not deter the government from developing what will
be truly good privacy legislation, which we all around this
committee table agree we need.
Ms Lankin:
But you don't trust that they'll bring back an amended bill that
will deal with the federal Privacy Commissioner. Anyway, there is
no motion before us at this time to defer the public hearings. I
am not, for the reasons I stated, going to put that motion
forward. I would like to suggest that we move to
clause-by-clause, but I have one quick question for Mr Sharpe.
Didn't I pay to go to a retirement party for you?
Mr Sharpe:
You did.
Ms Lankin:
Okay, that's fine.
Mr Sharpe:
Maybe I should have stayed away. I liked your speech in the
House.
The Chair:
With that, perhaps we can get back into looking at each section.
As I mentioned earlier, we were at the definitions section. I
don't know whether any committee members have any other-Mr
Spina?
Mr Spina:
I still am of the opinion that this is premature.
The Chair:
Mr Spina, only because you're joining us here today for the first
time, the original suggestion was to build on the Ministry of Health's appearance
last week, wherein we were hoping to get answered committee
members' questions on the bill itself, not Ms Cavoukian's
response.
Mr Garfield Dunlop
(Simcoe North): Just right on Bill 159.
The Chair:
Just on Bill 159.
Mr
Jackson: With respect, Chair, could we take a one-minute
washroom break?
The Chair:
This committee is recessed for five minutes.
The committee recessed
from 1521 to 1534.
The Chair:
I call the committee back to order. I'm sure Ms Lankin has some
questions we can start out with.
Ms Lankin:
A preliminary question about the information we were told would
be provided this afternoon, which is the copy of the document
with respect to registration information: has the clerk been
given that? Can we have that?
The Chair:
Mr Jackson, what's the status of that?
Mr
Jackson: We're just trying to locate it.
The Chair:
Perhaps we can have the clerk pass those out.
Ms Lankin:
Mr Chair, it would be my understanding, in terms of resuming
clause-by-clause analysis, that we would be starting with section
3 at this point in time. I'm not sure if that's what the
ministry's intent was. Were there any secondary comments that you
wished to make with respect to section 2 in particular,
definitions as a result of either the provincial or federal
privacy information?
Mr
Jackson: Less in terms of the comments of the
commissioners and more in terms of registration information.
In terms of registration
information, we went back, and I think you'll see in the material
that's being submitted that the ministry reviewed what the
original criteria in the draft bill or in Bill 159 were for
including employment status. As you'll recall, when the PHIPA was
originally drafted way back, it was drafted outside of the
context of either C-6 being in place or other work being
underway, so the definitions were broader. Hence, the
registration information definition included employment status
because, at the time when it was originally being discussed, it
may well have applied to such things as insurance. Now, having
reviewed it, we can see no reason to maintain its inclusion.
Ms Lankin:
Thank you very much. That makes me happy.
Mr Chair, would we commence
with clause-by-clause of section 3, then, and ask the ministry to
present the section and then the committee can move to
questioning?
The Chair:
Perhaps in the interest of time we could get right to questions.
By "present," do you mean actually read the entire section or
just give some thoughts?
Ms Lankin:
No. Just an overview of the intent, and I'm expecting that they
will editorialize because some of these sections will have been
commented on by the federal commissioner, and Mr Jackson made
some comments in his initial response which he said he would
elaborate on as we go through the sections.
The Chair:
Mrs McLeod?
Mrs
McLeod: I just had one question. I agree with Ms
Lankin's approach. I think it can be done fairly quickly. I don't
think any of us are looking to prolong it.
The Chair:
Fair enough.
Mrs
McLeod: But I did have one question arising from Mr
Radwanski's comments on section 1, if I may ask that before we
move directly to section 3.
The Chair:
Section 1.
Mrs
McLeod: It's the definitions section.
Ms Lankin:
Section 2.
Mrs
McLeod: Section 2; I'm sorry. I'm not going to get into
the whole long list. Mr Radwanski was concerned and, as you've
said in your response, there are rules being put in place through
this legislation around how health custodians have to regard that
health information. But his concern was that there was such a
long list of health custodians, that we'd given wide access to
health information because of the length of the list.
One that struck me as he
spoke was the inclusion of the district health council. I just
wondered if you would say why the district health council would
be in there, remembering that what we're dealing with is
identifiable information. The district health council is made up
of appointed people. I have a great deal of regard for the people
on the health council in my community, but I don't want them
having my personal health information under any
circumstances.
Mr
Jackson: It's a very good point and it goes to the
definition of "personal health information" that's used at the
beginning of the bill. "Personal health information" is defined
extremely broadly in the bill and it should be read, certainly
the intent of the way it's read, that it's identifiable or
potentially identifiable, so that in a manner that an individual
could put together various components of information in order to
obtain a whole picture.
Certainly district health
councils work with information-not patient records-that
potentially could be identifiable. So for example, for work
that's being done in the Metro Toronto area, to look at where to
place specific stroke services, a highly developed, unique census
for advanced stroke care, the sort of work that staff at a DHC
would do would require them to know epidemiological trend,
utilize the number of patients going through an individual
facility, in order to be able to determine where to appropriately
put it. Is that information individually identifiable? No. Is it
potentially identifiable when you take the pieces together? Yes.
This is the challenge of crafting access to what is essentially
data and trends and buried in that is the capacity to link.
1540
Mrs
McLeod: In the course of having what may be a more
detailed definition of "personal health information" and not
exclude legitimate uses from some users, you've now given such a
long list of users that can access much broader information than
what they require.
Mr Jackson: That's why
basically I draw attention to section 12, the general limiting
principles. The general limiting principles basically would spell
out, "No more information than is required for the purpose." If
you read through the section 12 provisions, if the purpose is for
planning and the planning can be achieved without identifiable
information, then they will be required to not use identifiable
information. One of the challenges of the act is reading section
12 in concert with all of the other sections. In many ways it's
the qualifier that applies to all collections, uses and
disclosures.
Mrs
McLeod: I'll return to section 12 when we get there.
The Chair:
Perhaps, Mr Jackson, you can give us a brief overview of section
3.
Mr
Jackson: I'm going to be joined by Juta Auksi.
Ms Juta
Auksi: I'll start with section 3 and touch on the
purpose of particular provisions, trying not to get into too much
detail so that we can do this in the time available.
Subsection 3(1) deals with
a situation where you could have a company that operates a number
of facilities; for example, long-term-care facilities. This
provision would say that each individual long-term-care facility
would be a custodian, as opposed to the company that might
operate a whole number of them.
Subsections (2) and (3)
deal with the notion that if you have information that is passing
control from one person to another, then there is not a time
during which it's not in anyone's control. Subsection (2): if you
have one custodian transferring information to another custodian,
the original custodian remains responsible until the transfer is
completed. Subsection (3): if you have a death of a custodian,
the estate trustee is the custodian until the information passes
on to another health information custodian.
Part II, the application of
the act: this clarifies, for example, that the act applies
retroactively to records that came into existence prior to the
time the act comes into force. With respect to the scope of the
act, it expands both public sector and private sector health care
entities. If there's a need, for example, to carve out the
application of these, the act must be made to apply to
information that is currently under the Freedom of Information
and Protection of Privacy Act or the Municipal Freedom of
Information and Protection of Privacy Act, FIPPA and MFIPPA, as
they're sometimes referred to. For example, personal health
information under the custody and control of the Ministry of
Health, currently under FIPPA and MFIPPA, would be subject to
this act instead. To the extent that some other custodians are in
that situation as well, this clarifies that personal health
information in those cases is governed by this act and not by
those acts.
The Chair:
Thank you. Any questions on that section?
Mrs
McLeod: Just in terms of all the sections and
subsections which you've just covered with your explanation, how
far along are you?
Ms Auksi:
How far? I hoped that this would work. If we did every-
Mrs
McLeod: We don't need to.
The Chair:
Exactly. That's my concern. We've only got 45 minutes.
Mrs
McLeod: We don't need to go over-
The Chair:
When I say "brief overview," a sentence or two would be
sufficient unless questions arise.
Ms Auksi:
All right.
Ms Lankin:
You were explaining how you were going through it. I'm assuming
you just went through to the end of section 6, essentially, at
that point.
Ms Auksi:
Pretty much. Yes.
Ms Lankin:
In section 6 I had a couple of questions. It's clear that if an
individual has made application and received disclosure of
information under the freedom of information and the municipal
freedom of information, that act continues to apply. Similarly,
if someone has made a request, it continues to apply, or if they
have appealed a decision, the previous legislation continues to
apply. What happens in the case where someone has requested
disclosure of personal health information and received a decision
which is negative, either a complete no or only partially
received what they had asked for? Do FIPPA and MFIPPA continue to
apply or do they have an opportunity to reapply for the same
information, the same basic set of data, under whatever this
PHIPA is?
Ms Auksi:
That's a good question. You mean can one-
Ms Lankin:
Re-litigate, essentially.
Mr
Jackson: It's basically, can an access request be
grandfathered?
Ms Auksi:
It's not necessarily precluded.
Mr
Jackson: Nothing would preclude a new request.
Ms Auksi:
No. These are simply transitional provisions for things that are
in the system at the time the legislation comes into force. So
once the legislation came into force, I guess potentially there
could be something that was redone, unless someone can point out
why that shouldn't be the case.
Ms Lankin:
The only thing I would suggest is that if someone makes a request
under freedom of information and receives, let's say, partial
disclosure, so their whole request is not granted, because there
has been disclosure of health information under freedom of
information, 6(1) would apply, which says they continue under
that act. It would seem to me we're saying that people would have
to go through the whole process of objecting and appealing and
getting a final decision under freedom of information, and then
you're telling me there would be no reason why they couldn't come
back and start over again under this new piece of legislation.
Given that there's a section here that says if they're making an
appeal they're still governed under this, would it preclude them?
I just want to make sure that in fact it doesn't preclude,
because at the end of the day we may have broader rights of
application of personal health information under this
legislation.
Ms Auksi: I think it's one of
those things that if someone would make the case that we should
look at it again and see whether it should be different than it
is-
Ms Lankin:
It may be a case where we look at some clause that says, "Nothing
in this section prohibits an application under this new
legislation."
Ms Auksi:
Yes. Either it's by saying nothing that it has that effect, or if
it's necessary to say something, it should have that effect.
Ms Lankin:
Perhaps the drafters could take a look at that and advise us.
Ms Auksi:
Sure.
Mrs
McLeod: Is my question on 7 premature then?
The Chair:
No.
Mrs
McLeod: Did they stop at 6?
Ms Lankin:
It is in that they haven't said anything about 7 yet.
Mrs
McLeod: That's why I was asking where you stopped in
application of the act. Shall I proceed with the question?
The Chair:
I'm always impressed with the degree of research members bring to
the committee. Ms McLeod, if you're ready with the question.
Mrs
McLeod: It takes a lot of work on this bill to do that,
Mr Chair.
Ms Lankin:
Could we ask the ministry to have their say about section 7
before we ask questions?
The Chair:
Sure. A brief overview, please.
Ms Auksi:
Section 7, then: this is to exclude some kinds of information
from the application of the act, and this includes information
about a person who has been dead for more than 30 years or
recorded information that's more than 150 years old, because
people said that sometimes you don't know when someone died.
The anonymous or
statistical information: this is to say that where there is
information that is in such a form that it does not, either by
itself or when combined with other information, permit an
individual to be identified, that is outside the scope of this
legislation. This is just current from the information that Phil
referred to earlier, where there would be reasonably foreseeable
ways of linking information to identify a person. This would be
information that doesn't permit that.
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Clause (d) is intended in
effect to exclude employment-related information. I think I
mentioned something in one of the earlier days we were at the
committee. The intent is not to have personnel records,
employment-related records, be the subject of this act. That is
because those records are really-those would apply in whatever
kind of organization you were talking about, not just those in
the health system. So they would be more properly the subject of
broader legislation than this, not just limited to the health
sector.
In response to the kinds of
issues where people say, "What about the protection of personal
health information in personnel records, in employment-related
records?" there are a number of ways in which the act actually
does speak to that; for example, further on, when we get to
section 24, the so-called recipient rule, where there are
restrictions that if someone gets information for one purpose,
they can't turn around and use it for another purpose unless with
restrictions. But perhaps I can get into that later. But the
basic idea is that there wasn't really a logical reason why the
records of employees of a hospital, for example, would be dealt
with by rules under this act whereas records of employees of a
non-health-sector institution would be dealt with by different
rules.
The Chair:
Thank you, Ms-oh, you have more?
Ms Auksi:
I think some of the other things here are more self-evident, so
unless there are questions-
Mrs
McLeod: Just to note for the record that the Ontario
privacy commissioner did have some concerns about anonymous
information and felt there should be some safeguards. But my
question was around clause 7(d) and the exclusion of health
information for employment-related purposes, which Ms Cavoukian
felt should be stricken from the bill, that this bill should
apply fully to health information related to labour negotiations
or to employment. Has the ministry a response to that?
Ms Auksi:
I guess that could be discussed, but the explanation that I gave
I think is why that is there.
Mr
Jackson: I think one of the challenges is, if you place
it in this bill, does it raise the fact that hospitals, for
example, would be governed under one set of rules for their
labour proceedings and for the files that they hold for their
employees that wouldn't apply elsewhere, in other-
Ms Auksi:
In a department store or in another kind of entity that isn't
governed by this act at all. It would put a layer of complexity
to the issue of how employee records are dealt with without
really a good reason. Why would information that's really dealing
with the operation of the health care area deal with that area?
It really belongs in more general legislation, like possibly
future privacy legislation in a more general way.
Ms McLeod:
But the commissioner's perspective was that what this serves to
do is deny individuals access to their own health information
which is being held by a public health custodian and that that
should not be denied. Her focus, as I understand it, was on
access.
Ms
Jackson: I think we'll need to go back and look at what
suggested drafting changes she's made round that. It's a
challenge if you want some sort of consistency. If I work for
Dunkin' Donuts, in theory I should have the same rights to be
able to access the information that's in my file as if I worked
for Toronto Western Hospital In that this is attempting to create
rules for the health sector, as it pertains to labour
proceedings, we've tried to not get into, basically, legislating
employment files wherever they're held, because that would
stretch the bounds of this legislation to an enormous degree. But
we certainly are interested in seeing if Ms Cavoukian's crafted
specific language.
Ms McLeod:
Could I just suggest, Mr Chair, that it would be of interest to
have some discussion between ministry representatives giving
their response and Ms Cavoukian? We're getting a little bit
tortured here. I honestly don't know how to weigh one concern
versus another in this situation. I'd be really interested in her
response to your concern.
Mr
Jackson: Yes, and this is one we'll definitely follow up
again. We have had some initial discussions around a number of
the clauses, but we'll we follow up with her staff.
Ms Lankin:
Just on that point, that would be my suggestion as well. Quite
frankly, I accept the ministry's explanation and I understand
that. As a workers' advocate, I would like to see legislation
that guaranteed a worker's right to that information in those
circumstances. There are certain pieces of legislation or
due-process practices that have been put in place that guarantee
that in certain circumstances. I think of the Workers'
Compensation Appeals Tribunal, which has a different name now,
but the right of due-process access to any information the
employer holds that they are using or that the board holds, and
the duty to disclose. So there are some areas where that's
covered and there are some areas where it's not, particularly in
unorganized workplaces, where people are looking at private suit
versus before the labour board. There are not clear rights that
are set out, at least in preliminary processes.
The question to the privacy
commissioner, given her comment that there should not be a
prohibition on access to personal health information: is she
suggesting, therefore, that this legislation should in fact be
broadened with respect to anyone who holds personal health
information? That would include employers; it would include
insurance companies. I think it's a valid question to ask, if
that's what her intent was by the criticism that she raised
here.
I also wanted to come back
to the issue of anonymized information. You said it's not the
intent that this would be information that could reasonably be
foreseen to be linked. In fact, I think that's the very concern
people have, that you exempt anonymized information.
I think back to some of the
debates that went on around public health legislation and
communicable diseases and the necessity to report and the
concerns of medical officers of health with anonymous HIV
testing. I remember the huge wrangle there was around that. Yet
if the very significant public policy and public health goal that
was thought to be met, and I think successfully met, by the
introduction of anonymous testing is jeopardized by the belief
that there could be links that are made, as you just told us in
your example of why the district health council has been included
as a health custodian under that definition, I don't think the
language here is sufficient to guarantee that it is anonymized
information that couldn't in some other way be linked. I would
ask you to address that or to tell us how we might get that
assurance stronger in the legislation.
Ms Auksi:
The point is taken, but I would point out that in the definition
of "personal health information" on page 8 of the bill, it says
that it "is information that,
"(i) identifies the
individual,
"(ii) can be used or
manipulated by a reasonably foreseeable method to identify the
individual, or
"(iii) can be linked or
matched by a reasonably foreseeable method to other information
that identifies the individual or that can be used or manipulated
by a reasonably foreseeable method to identify the
individual."
So where there can be
linkage by a reasonably foreseeable method, that is included as
information that would be governed by this act in the hands of a
custodian. This is-
Ms Lankin:
The rest of it, the stuff that couldn't in any way-
Ms Auksi:
-the stuff that couldn't be. If one doesn't make that distinction
at all, then the act ends up applying to things that really are
not linkable, not identifiable, and creates potentially real
difficulties in using things for quite appropriate purposes
without risk to individuals.
So, on to section 8?
Ms Lankin:
OK.
Ms Auksi:
Section 8 deals with some areas of law where there could be some
question as to whether the provisions of this act would interfere
with or conflict with-not conflict with, but interfere with in
particular-other areas of law where people might see an
interface. We wanted to make clear here that, for example, the
act would not be construed to interfere with certain things like
a right of subrogation, anything governed by the Human Tissue
Gift Act, which is now the Trillium Gift of Life Network Act, or
anything governed by the Occupational Health and Safety Act, not
to place new complications in those areas that have other rules
attached to them and the area of copyright, which might otherwise
be taken in some way to be affected by this act.
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Ms Lankin:
Could you give us a practical example of where there may be a
conflict in purpose and therefore a complication in procedure
between this legislation and the Occupational Health and Safety
Act?
Ms Auksi:
I must say I can't be specific about it but there are certain
very specific provisions there about disclosures that may and may
not be made. It's simply not intended that there be anything in
our provisions allowing disclosure where that act would prohibit
it, or prohibiting disclosure without this act would allow it,
since that is such a carefully worked out scheme. If there were
aspects that anyone thought to draw to our attention that either
should or shouldn't be dealt with in another way-
Ms Lankin:
I can probably think of some examples and accept that they are
separate schemes. I just wondered why certain other pieces of
legislation might not also be included. I'm thinking of the
scheme in governing workers' compensation, for example, and there
are some others. Perhaps you could respond to us with some
practical examples of why the inclusion of this and the exclusion
of some other similar kinds of legislation.
Ms Auksi:
As you probably are aware, the Workplace Safety and Insurance
Board in a previous version was a custodian under this act and if
by them not being a custodian under this act there is some impact
of that kind, then we certainly look forward to hearing from
them.
Ms Lankin:
Well, I'm asking you to take a look at that in particular.
Ms Auksi:
All right.
Ms Lankin:
Thank you.
Ms Auksi:
The OHSA. Yes.
We're at section 9, I guess
the typical provision not overriding solicitor-client
privilege.
Section 10: there certainly
are provisions in this act, later on as we'll come to, that do
affect the law of evidence, but the intent is not to interfere
with such law otherwise than what is specifically set out in this
act.
Conflict provision, section
11: "In the event of a conflict between a provision in this act
respecting confidentiality and one in any other act, this act
prevails unless this act or the other act specifically provides
otherwise."
Mr
Jackson: This is a piece I would draw attention to where
this would place a requirement for new legislation to state
explicitly whether it complied or did not with Bill 159.
Ms Auksi:
Well, only with respect to confidentiality provisions. If there
were something that was otherwise in conflict with this act, in
order to apply, it would need to say that notwithstanding-but it
does not mean that it applies to the whole scheme of other
acts.
The Chair:
Mrs McLeod.
Mrs
McLeod: Understandably, but my question on section 11
was, "Does this mean any other act that exists now or in the
future?" and what I've just heard you say is that any future act
of the government could specifically state that it is not in
compliance but it's access to health information. Another act, by
any other ministry even, could take precedence in terms of access
to confidential information over the provisions of this act.
For example, so that we're
not dealing with hypothetical things, I come back to Bill 155 and
the clause that was taken out of this bill. Bill 155 could
contain a clause which is not compliant with Bill 159 in terms of
confidentiality provisions, and Bill 155, by the very virtue of
its passage, would take precedence over Bill 159-I see
Gilbert nodding his head-which is the whole issue we've raised
over and over again with the Attorney General's department.
Mr
Jackson: This is a challenge insofar as it pertains to
privacy, which would be covered under this, specific to health
information, in that it will require it to be flagged. It will
actually be in the legislation to say, "Notwithstanding section
X."
Mrs
McLeod: Fine, but it could still pass. So if the
Attorney General is bound and determined to get hold of
confidential health information despite the fact that the
Minister of Health removed the clause from her bill, the Attorney
General could access it through his. All he has to do is say
"notwithstanding." There's an openness here to a
"notwithstanding" clause in every piece of legislation that's
passed in the Ontario government. Right?
Mr
Jackson: There's a provision that states the onus is on
a bill coming forward to explicitly state where it is not in
compliance.
Mrs
McLeod: But why would the privacy act of the Ministry of
Health dealing with confidential health information not have
primacy? Under what possible circumstances would you want to
allow another ministry of the government to pass legislation that
contains a notwithstanding clause that prevails over the privacy
of personal health information and the confidentiality of
records?
Mr
Jackson: It's very hard to anticipate, X years down the
line, where another piece of legislation in a very different
area, addressing a very specific problem, may run up against one
of the provisions in here. It could be a minor provision; it
could be a significant provision. It's hard to anticipate
that.
Mrs
McLeod: That's my problem. Because you can't anticipate
all possible uses, you've opened it to everything. That's why
there's such a fundamental disagreement with the bill.
Mr
Jackson: The requirement, as it's currently stated, does
as with FIPPA and MFIPPA. If you're not going to be following the
FIPPA and MFIPPA rules, you would introduce a provision saying,
"Notwithstanding section X of FIPPA and MFIPPA...." There's a
transparency aspect to it. Certainly we would not want to bind
every other piece of legislation that ever came through. On the
other hand, if there are suggestions of ways this could be
strengthened-we certainly hear the point you're making. The
thought was that by introducing the transparency provision, which
is what this is, you are requiring to bring in front of a
legislative process a declaration that you are overriding a
certain provision.
Ms Auksi:
I'm sorry to interrupt, but this also has the effect of actually
maintaining certain confidentiality provisions that are more
absolute than those that would apply here. For example, in
reference to the Child and Family Services Act, the provision is
that "No person shall publish or make public information that has
the effect of identifying a child who is a witness at or a
participant in a hearing or the subject of a proceeding, or the
child's parent or foster parent or a member of the child's
family," and it goes on. There are certain provisions that
would-
Interjection.
Ms Auksi:
Yes, 11(2) gives some examples where confidentiality provisions
in other acts would prevail. It can work that way too.
Mrs
McLeod: I understand where it's spelled out in (2). I'm
concerned about the "unless" provision.
Maybe I could make a
specific request for a written legal opinion from the Ministry of
Health on the relevance of section 6 and the definition of health
information exclusion under FIPPA, which the Attorney General has
used as a reason he would not, under Bill 155, have access
to confidential health information under section 11. I'd
like a written legal opinion as to whether section-
Interjection.
Mrs McLeod: I know I'm asking a
lot. It's whether Bill 155, as it's structured, would permit
access to confidential health information in the absence of any
warrant.
1610
Mr Sharpe:
This was actually seen as a safeguard. It's common to see in
statutes provisions that say, "The provisions of this act take
paramountcy over any other act to the extent of a conflict." If
every act says that, it becomes very confusing when there's an
actual conflict. So if there's a provision in some other statute
about, say, reporting people who have conditions that may make it
dangerous to drive-there's a provision in the Highway Traffic
Act-and it doesn't say it overrides this, and a physician is
wondering whether or not to report-they have two obligations: one
that says they have an obligation to report and the other that
says they have an obligation to maintain privacy with respect to
their patient's information-what do they do? What this says is
that it's not enough to simply get a legal opinion on how you
resolve these two conflicts. The act that is intending to
override this has to expressly do that.
Mrs
McLeod: I don't want to prolong the debate on this. I
understand how you've identified some acts, and there are reasons
why you've said they are exceptions and their provisions
override. What I don't understand is why you would leave an open
door, as opposed to, for instance, allow-in any substantive bill
that's passed, there are amendments to other acts. You could make
this the bill that has primacy, but any future legislation that
challenged this would require an amendment to the health privacy
act. It couldn't just come in by the back door through other
legislation. I really think that's a
legitimate-inaudible.
Mr Sharpe:
I understand what you're saying, though I think that's in
drafting. There's still the accountability of the legislative
process either way. To have a provision in a bill that's being
brought forward saying it expressly overrides this bill, it's
going to have to mention that, and that would be open for public
debate in the context of that bill. Or you can do it as you've
suggested and put in a provision saying this is a complementary
amendment to this bill, to add to subsection 11(2) to the list.
In either case, whether it's appropriate is going to be up for
debate and there will be that accountability there. It's a matter
of what is the better drafting mechanism. It will have attention
drawn to it in either situation.
Ms Lankin:
I personally believe that if the intent is a bill that is to
protect privacy, and this is the paramount bill, then it should
be drafted in way that any further exceptions to this are done by
amendment to this bill. It also has the effect of keeping the
list of differences in one place, otherwise you're seeking in
other pieces of legislation to determine whether this has got
primacy, and you may not even know where to look in a
circumstance. So I think that is a substantial problem with the
bill as drafted. It's more than stylistic; it's substantive in
the expression of intent and force of the bill, I think.
The second question I have
with respect to this is with respect to subsection (3). Without
having had the opportunity to read through the applicable
sections in the Ontario disabilities support program and the
Ontario Works Act, because they're not actually identified here,
I have significant concerns. Let me tell you, in particular, that
currently in the Ontario disabilities support program,
determination of disability is done through a bureaucratic
mechanism as opposed to a medical assessment. You certainly need
medical assessments to be fed into it, but in that process the
decision that you are disabled or not is a bureaucratic decision.
That's another issue, and it's significant to a lot of people.
It's one we will work on with the government in another
arena.
But to say that that act
has primacy over this legislation, given the bureaucratic
gathering of data and information, medical information in
particular, gives me great cause for concern; similarly on
Ontario Works, because often there's a relationship between the
individuals who may begin on Ontario Works and transfer to the
Ontario disabilities support program through application and
eligibility assessment.
I think it is necessary for
the ministry to give us explicit details of what sections of
those two acts override this legislation. I think I will object
to them in any event, but at the very least they should be
spelled out in this legislation, not simply that the whole two
pieces of legislation apply.
I have a sense that it's
less information-policy-based than it is government-goal-based in
terms of two pieces of legislation very important to the
government that they don't want anyone to mess with, so that
there is an effective working of the goals as set out in those
pieces of legislation. This committee needs to understand what it
means with respect to privacy rights of individuals under those
two pieces of legislation.
Mr Sharpe:
It does have to some extent to do with Juta's earlier comment on
the scope of this legislation. Should this be applying to health
care information everywhere? If that's the case, then you do
bring in quite a broad range of actors who are not really health
care custodians in the true sense of providers, or do you leave
intact in certain other statutes schemes that incidentally use
health and other kinds of information for other purposes?
Ms Lankin:
But my problem with it, Gilbert, is not that we're trying to
expand the scope here. It is in fact that we're not even
identifying particular areas of conflict, and yet we know that
health information is collected and used and that it is done by
the Ontario government and the Ontario government has access
through all sorts of cross-matching. Please don't suggest it's
not used, because in fact that's part of the whole new anti-fraud
mechanisms that have been put in place that cross-reference other
databases within the Ontario government. So there's a real
problem here when we don't even know what sections it is that
you're suggesting override this piece of legislation.
Mr Sharpe: We'll come back to
the specific provisions that were of concern in consultation-
Ms Lankin:
Then we'd be able to have a dialogue about what the intent
is.
Mr
Jackson: Essentially, there are a couple of questions.
One that Gilbert alluded to is the boundary question, what is the
boundary of PHIPA? Second are the specific provisions.
Ms Auksi:
Generally, the intent is not to revisit existing policy, where it
exists in statutes elsewhere. There would be some exceptions, I
guess, where it was possible, without interfering with another
scheme, to clarify or whatever. But it's not really seen as being
an act that would really revisit all other-
Ms Lankin:
I realize that, but an example was given just moments ago about
the Ministry of Transportation and driver licensing legislation
and regulation. It's not specifically referenced here and yet
Ontario Works and Ontario disability are. So I need to know. It
was obviously in the policy consultation process between
ministries. It was flagged by the Ministry of Community and
Social Services as a problem. It's been included in the bill as a
result of that. I'd like to know the rationale behind it and if
we can be more specific or not.
Ms Auksi:
I guess the question too is whether it is necessary. Again, these
programs were in the previous 1997 draft act. They were listed as
custodians, and in the narrowing of the scope of the bill in the
process of making it more specifically health system legislation,
they were removed from the list of custodians. It's possible that
this provision may no longer be necessary.
The Chair:
With a few minutes left to us, perhaps we'll move into section
12, because I'm sure there will be questions on that.
Ms Auksi:
Section 12 is in some respects, I guess, the heart and soul of
the legislation, and we like to remind people reading the
legislation to always keep in mind that it really applies
throughout the act. If you look at subsection 12(1), in regard to
general limitations that apply, this section applies to every
collection, use and disclosure of personal health information
that is governed by this act.
Subsections (2) through (5)
deal with what we call the general limiting principles. They
speak to, for example, the fact that personal health information
cannot be collected, used or disclosed unless other information
will not serve the purpose. For registration information, if the
more limited information such as name and address will serve the
purpose, then information that pertains to someone's health
status or health care must not be collected, used or disclosed.
The amount of information must be limited to the necessary amount
for a particular purpose, so only the necessary amount of
personal health information can be collected, used or
disclosed.
1620
Subsection (5) deals with,
once having the information as a custodian, how that information
must be handled. The rule then would be, "To the extent
reasonably possible, a health information custodian who collects,
uses or discloses personal health information" must "do so in a
manner that conceals the identity of the individual, that keeps
the identifiers of the individual separate from the information
or that deletes the identifiers from the information, while still
meeting the purpose of the collection, use or disclosure, as the
case may be." So using the appropriate methods of protecting the
identity of the individual.
Then subsection (6) deals
with the fact that standards may be prescribed by regulation for
the purposes of subsections (2) to (5), which are the general
limiting principles. If there are such standards in regulation,
then a health information custodian is required to comply with
them. Why is this left to regulation? People have pointed out
that the custodians are really quite diverse and the measures
that may be appropriate for one may not be appropriate to
another. The intent is not to get into a huge amount of detail by
regulation but to do so in a selective manner where this would
actually have beneficial guidance for custodians.
Subsection (7) is a
specific provision, rather similar to subsection (6) but speaking
to the issue of registration information, as to when, for
example, registration information may be the way to go as opposed
a broader range of health information.
Subsection (8) says that
this section of the general limiting principles "does not apply
to personal health information that a health information
custodian is required to disclose under this act or another law."
We recognize that this may need a technical fix to clarify that
it does not-
Mr
Jackson: The intent is to cover directed disclosures. It
doesn't come across clearly enough. If you read subsection 12(1),
it states that explicitly. Subsection 12(1) basically applies to
all. The intent is it applies to all under this act.
Ms Auksi:
I guess one example might be that if one is required to make a
disclosure, for example, where there may be a requirement to
disclose something to fulfill the requirements of the Canada
Health Act regarding the settling of a claim that was incurred
out of province, you wouldn't want someone to somehow be limited
from being able to meet that requirement by someone saying, "I'm
looking at what the amount of information is and I don't think
that it should be necessary to disclose that amount of
information," or somehow making a required disclosure not be
workable, because the custodian could be applying a restriction
that would nullify the effect of the requirement. I don't know if
that came out the right way.
For example, just even with
the directed disclosures, if you have a directed disclosure that
has gone through whatever processes are in the act for being
appropriate, like not more than is necessary and so forth, you
wouldn't want to have each individual custodian then
second-guessing what that bit of information is, because that
would mean that it could really not be put into effect. Once
there is a requirement, and it's clear what the required information is, then
you can't have that be challenged in every detail.
The Chair:
Since you're on the last section, why don't you just finish that
last section. Then Mrs McLeod and Ms Lankin.
Ms Auksi:
Subsection (9): inasmuch as the provision of health care is a
rather complex matter and it's not always possible to be very
precise about what information is or isn't required for the
proper health care of an individual, this is intended to give
some flexibility for health care providers. For example, when
they're taking a history, when they're determining what is
necessary to disclose to another provider, while they would be
subject to the general limiting principles, it is not intended to
be so restrictive on them that they would not be able to have
normal latitude. Not that they would be thinking for every little
piece of information, "Unless I need it at this minute I cannot
ask someone about it or I cannot disclose it to their next
provider," but it's certainly not intended to mean that the
general limiting principles would not apply at all.
Mrs
McLeod: My question is about the directed disclosure,
although I note that the federal commissioner did have concerns
about subsection (9) as well in the context again of his concern
about the breadth of people who had access and who were excluded
from the limitations clause. In your response to the federal
commissioner you indicated that section 12 was the way of
ensuring that that broad list of people who have access to health
information would be governed. His concern was that under
subsection 12(9) a lot of those providers are exempted from the
section 12 limitations clause.
Mr
Jackson: That offers an interpretation; it doesn't
exempt them. It's an interpretation that it can't be construed by
a provider as a barrier to-case conference was the one that was
used. They can't use the act, hold it up, to refuse care or to
withhold participation in a case conference, as the case may
be.
Mrs
McLeod: The question is around subsection (8), where the
privacy commissioner for Ontario clearly said that this was an
inappropriate inclusion in the legislation. Obviously a lot of us
do have concerns about the direct disclosure provisions in the
bill anyway and the fact that the health custodian would have no
ability to even apply these limitations, which are pretty modest.
The limitations section itself is pretty broad.
Mr
Jackson: Just on 12(8) and its relationship to 12(1),
the intent is that the general limiting principles apply to
directed disclosures. Insofar as section 8 is poorly worded or
doesn't reflect fully the intent that they apply, then it needs
clarifying, because the intent is that it applies. That's one
area where I think there's agreement between the commissioner
and-
Mrs
McLeod: The commissioner recommended deleting it.
Mr
Jackson: You're on about subsection (9).
Mrs
McLeod: No, it's (8).
Ms Lankin:
No, subsection (8). She recommended deletion of it.
Mr
Jackson: Sub (8) needs work to ensure that it cannot be
construed to not be capturing directed disclosures. The intent is
that it captures directed disclosures. The challenge in terms of
working through it is where there is disclosure that is required
under another act, and to the point that was raised earlier, it
has to be structured in such a way as to be workable with
appropriate privacy protections. But for the directed disclosures
in this act, the intent is that 12(1) applies.
Mrs
McLeod: It's still a concern.
1630
Ms Lankin:
If I may, I think it's going to take, in my humble view, more
than a technical amendment to that provision. When you put that
together with the general concern about the breadth of directed
disclosures that exist, it strikes me again-let's turn it on its
head. If we were to come at this and the general provisions apply
here, in this legislation where there is a specific purpose for a
directed disclosure, if we are to spell that out, if it requires
something above and beyond the general limiting provisions in
section 12, then you'd better be clear and say, "Notwithstanding
the limitations in section 12, the minister can direct for this
purpose," and we can debate that then, but it's clear that's what
we're doing. If there are no directed disclosures that fall
outside of the general limiting provisions, then we don't have
that problem; and if we're talking about directed disclosures in
other pieces of legislation, then we come back to spelling it out
in terms of the conflict section so that it's really clear. Even
if it is not the intent that it be used as a nullifying clause,
it has the ability to be used that way and it needs to be
structured very differently, outside of this section, I would
suggest.
Mr Sharpe:
We've discussed with the provincial privacy commissioner the way
of restructuring 12(8) to ensure that directed disclosures do
meet the minimalist provisions that are there in terms of
protecting individual rights and looking at narrowing the scope
of information that can be directed, coming up with a different
conceptual approach, which we can talk about at a very high level
when we get to the directed disclosure provisions.
Ms Lankin:
I think that will be really important for us to hear, but I come
back again to if a directed disclosure-and hopefully we will
narrow them down and make them more specific-falls outside of the
purview of these general limitations, then that disclosure should
be named and should be in the bill, notwithstanding the general
limitations, so that it's really clear that we are giving powers
above and beyond the general limitations. I suspect that most of
them are not going to fall outside of these general
limitations.
Ms Auksi:
That's the intent.
Ms Lankin:
That's the intent, so let's actually craft the legislation that
way.
The Chair:
With that, we've gone over our time. Might I invite the members
of the committee-I had mentioned to Ms Lankin when you were out,
Mrs McLeod, that we reactivate the same sort of subcommittee
process that we had in place for the Mental Health Act, on as frequent a basis as the
members of the subcommittee require, and that could be daily if
you wish, with the involvement of the Ministry of Health staff
directly in that process, that we continue this process via the
subcommittee. Should there be questions where you're not
satisfied with the answers, we can certainly bring it back to
this sort of forum. Again, building on the success of the Mental
Health Act debating process, I wonder if that might be acceptable
to all the members of committee.
Ms Lankin:
I think that would be very helpful. I also find this process very
helpful and I'm sure that it's a pipe dream to think that we
could reconvene the committee before Monday to continue this.
Failing that, I just want to serve notice that at the end of the
four days of public deputations I will be requesting that the
committee reconvene to continue this process. Our questions may
be even more informed in light of what we've heard at that point
in time. But I think this is really important. I think it's
important for the ministry too so that they get some suggestions
as to what the committee members might find as a useful amendment
to reach their goals and to satisfy concerns that we've
heard.
The Chair:
I'm sure all the committee members will welcome the opportunity
to have the ministry back after we hear the public deputations.
I'm sure such a request will find favour.
Mrs
McLeod: Is there a difference between what you suggested
and what Ms Lankin suggested? I think Ms Lankin was talking about
the full committee resuming.
The Chair:
I guess all I'm suggesting is that even before we hear the public
deputations, or more to the point, each day during the
deputations, if there are specific questions that arise from the
observations of the groups and individuals who come before the
committee, if you'd like to have the ministry response in a very
timely fashion, literally that day or the next day, we could put
in place a mechanism that perhaps meeting over the lunch hour
each day we would have an opportunity to have those questions
addressed, plus come back after the public hearings and reconvene
the committee and invite the ministry back for as long as it
takes to answer all your concerns.
Mrs
McLeod: I think that would be very helpful. I actually
think that's an expansion on the process that's been used before
where the subcommittee really met to deal with amendments prior
to second reading of the bill. I think what you're suggesting is
a much more developmental kind of process.
The Chair:
Indeed.
Ms Lankin:
I just want to remind the ministry-I know they don't need this-of
my request around the information of what standard disclosures
are in practice now and what the bill envisions. Given the
discussion we just had about 12(8) and about the potential-
Mrs
McLeod: Is some of that here?
Ms Lankin:
No, we haven't got this yet-restructuring of the directed
disclosures section, the discussions you're having with Ms
Cavoukian, I think it's critical for us to have that comparison,
and it would be helpful if we had that before we started into
public deputations, if that is possible.
Mr
Jackson: I think that's doable.
The Chair:
With that, the committee stands adjourned until 9 o'clock next
Monday morning.
