Health privacy update: complainant does not get two kicks at the can

By Kate Dewhirst

In decision 80 of the Information and Privacy Commissioner of Ontario, the wife of a deceased patient was concerned that a hospital doctor wrongly shared her husband’s health information by speaking to a third party about the care he received and that the hospital failed to meet its privacy obligations. These concerns were raised with the IPC as well as the College of Physicians and Surgeons of Ontario (CPSO) (which decision of the Inquiries, Complaints and Reports Committee decision was further appealed to the Health Professions Appeal and Review Board (HPARB)).

The IPC declined to review the complaint having found it had been adequately addressed in the proceeding by the CPSO and concluded that the hospital took adequate steps to respond to the complaint.

As background, the wife made a complaint about care provided to her husband (the patient) at the hospital. The doctor admitted he asked the patient’s hospital roommate’s wife (the third party) whether she witnessed any nursing care provided to the patient. The doctor said he didn’t share the patient’s name. The patient’s wife complained to the hospital that the doctor’s conversation with the roommate’s wife constituted a privacy breach.

The hospital reviewed the complaint and concluded that there had not been any disclosure of information to a third party.

The wife of the patient was dissatisfied and complained about the doctor’s actions to the CPSO. The concerns about a potential breach of confidentiality were addressed by the CPSO as well as by the appeal board, HPARB. The CPSO issued a decision addressing the doctor’s conduct, which was upheld by HPARB.

The wife also complained to the IPC.

The IPC concluded the doctor had disclosed information to the patient’s hospital roommate’s wife and that such disclosure was subject to PHIPA. However, the IPC also concluded that the matter had been adequately addressed by another proceeding through the CPSO and chose not to review the matter again. The IPC concluded it was not necessary to review the complaint because of judicial finality, economy and fairness to the parties. The decision also addresses the legal issue of the IPC taking notice of the proceedings of the CPSO.

Bottom line: While this decision focuses on legal process – there are practical takeaways for clinicians.

One of the debates discussed in this case was whether the doctor’s conversation with the patient’s roommate’s wife included personal health information. The doctor never mentioned the patient’s name to the roommate’s wife. However, the IPC concluded the conversation involved personal health information. Personal health information is broadly understood and defined. Just because a name is not mentioned does not remove privacy obligations under PHIPA.

The hospital, in this case, was able to demonstrate it provided training and education of its physician members and took the culture of privacy very seriously. Such evidence obviously went a long way in convincing the IPC the hospital’s conduct was reasonable. Training is a vital aspect of privacy risk management. Do not forget to train your physicians in addition to other health professionals!

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