Privacy update – changes in managing privacy in health care

By Staff

Privacy is such a dynamic area of law and health care that organizations need to pay attention to it constantly, says Toronto health lawyer Kate Dewhirst.

“It isn’t something you can take out of the box once a year and look at: private lawyers and also privacy officers and contact people within health organizations have to keep their fingers on the pulse of what’s going on,” says Dewhirst, principal of Kate Dewhirst Health Law, who publishes regular summaries of important rulings by Ontario’s Information and Privacy Commissioner.

Privacy commissioner Brian Beamish has been good about sharing new developments and updates on a regular basis, she says, and the flip side of that is the struggle to keep up.

“That’s why I do privacy updates,” she tells “I’ve had huge feedback on that document, people find it really helpful to know what the commissioner is expecting from folks.”

The latest decisions have covered such issues as snooping into health records, decision-making by executors after a death and the release of correspondence between an organization and its insurer.

In addition to updates from the commissioner, Dewhirst has seen three major trends in issues facing the privacy officers she works with at health-care organizations:

Video surveillance at health-care facilities

The commissioner’s office recently did a webinar on this, Dewhirst says.

“It’s a hot topic in two different ways: what are health-care organizations and clinicians allowed to record? And are those video recordings available to the public, specifically to patients, if they want to have access to something that’s been videotaped about them in that environment? Which it is, generally yes,” she says.

Patients making recordings

Patients and families are making their own recordings of health visits using their phones and other personal devices, Dewhirst says.

“They do it for a variety of reasons. One is that they simply can’t take in or remember what the health provider says to them during an appointment.”

This requires a new conversation among health-care leaders, she says.

“There’s a lot concern and uncertainty from health-care providers when they hear that patients and families are making their own recordings," Dewhirst notes. "But I think we have to start embracing the concept.”

Clinicians and staff should debate who can make a recording, under what circumstances and what use to make of such recordings, Dewhirst says.

Teams have to know “are we going to add a patient recording to their health record?”

It gives providers more control if they can put up posters saying, “if you want to make a recording please ask us and we can explain how that works.”

The privacy of other patients in public spaces needs to be respected and patients should not record secretly, she says.

“Having people record you without your knowledge interrupts the therapeutic relationship. It can be a demonstration of mistrust. It can really upset the clinician, so it’s just better to get the fact of recording out in the open,” says Dewhirst.

“The reality is that patients and families want more take-home information,” says Dewhirst, who recommends health-care teams think about how to provide even more information on websites, brochures or patient handouts to reduce the need for personal recordings.

The democratization of health information

Patients and families want timely access to their own information, Dewhirst says, and that changes the professional-patient relationship.

“Technology is changing the dynamic from clinicians having all the information and patients only some or little. But what if we have patient portals where patients can access their own information? What if patients can contribute to their own health records? We’re even hearing of technology coming in a variety of places where patients can carry their own health records with them, maybe on watches or other portable devices, so when they need coordinated care they are the ones providing the information.”

If patients start getting their test results before seeing their health-care provider, that can lead to panicked phone calls to clinical offices and additional workload, Dewhirst cautions.

“Health and privacy leaders need to be talking to their teams about what does this look like for you, how does it feel? It’s like with the introduction of Doctor Google. Google changed the clinical relationship and dynamic. We all need to talk about that and adjust for that.”

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