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Health Privacy Update: New health privacy decision 71

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The Information and Privacy Commissioner of Ontario just released a new decision under the Personal Health Information Protection Act, 2004.

In Decision 71,  a hospital received a correction request relating to four records (six pages) of information documented in the emergency room. The information was used by physicians to report the patient to the Ministry of Transportation which led to a driver’s license suspension.

At the heart of the matter, the patient disputed the cause of the medical event (which the physicians had attributed to a personal habit he denies) and he asked for the cause to be removed.  He said the physicians did not test him for the real cause – they relied on inaccurate historical data and made assumptions instead of professional opinion.

The IPC upheld the hospital’s decision not to make the requested corrections and supported the hospital’s assertion of the good faith professional opinion exception.

In this decision, the IPC upholds the interpretation of “opinion” to mean “a belief or assessment based on grounds short of proof; a view held as probable.” And “observation” to mean a “comment based on something one has seen, heard or noticed, and the action or process of closely observing or monitoring”.

The IPC also states that evidence that someone has not acted in good faith can be based on “evidence of malice or intent to harm another individual, as well as serious carelessness or recklessness.” There is a presumption of good faith and the burden of proof for bad faith (or not good faith) rests with the complainant.

Bottom Line: This decision is consistent with other correction decisions of the IPC.  There is nothing new health information custodians need to do.  

It is interesting as a case study because NO PATIENT wants to be reported to the Ministry of Transportation and have their driver’s license suspended. This is a mandatory reporting issue that makes everyone uncomfortable and unhappy. It’s never easy for physicians to make such a report – and can lead to hard feelings and a breakdown in the therapeutic relationship. 

Here is my summary of all  IPC-PHIPA-Decisions.

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Kate Dewhirst Health Law

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