New snooping case for health privacy

By Kate Dewhirst

Decision 74 recently released by the Information and Privacy Commissioner is another snooping case.

My summary of all the IPC decisions is available here.

A physician used a hospital’s electronic health record system to look at the records of a patient numerous times without authorization. The physician was related to the patient by marriage and was not providing care to the individual.

Here are some highlights every privacy officer should know about this case:

Difference between confidentiality (don’t tell) and privacy (don’t even look)

This decision includes a powerful statement from the physician himself:

I graduated from medical school in 1973 and have always understood and taken doctor-patient confidentiality very seriously. It is sacrosanct and I have never disclosed information from anyone’s medical records to a third party without authorization. However, I did not fully appreciate the related but distinct concepts of patient privacy, the circle of care and the “need to know” principle.

This is an important reminder for privacy officers.

There are LOTS of healthcare providers who were trained in a time where the key message was “confidentiality is sacrosanct” – you cannot tell anyone what you know about a patient without their permission or unless required by law. Confidentiality is, of course, an important aspect of privacy – but it’s not the only element.

Privacy is broader and includes “don’t even look!” at health records or health information if you are not involved in care or another authorized administrative activity.

Some healthcare providers are of the mistaken impression that so long as they do not share the information with someone else they are allowed to read anyone’s health record. Snooping includes viewing a patient’s information when not authorized to do so.

This is essential messaging as we move into more and more electronic platforms for sharing health information to provide continuity of care. Healthcare providers who have technical sign-in access to health records should NOT look at health records unless doing so is part of providing care (circle of care) or part of other authorized administrative activities.

Proper investigation

The hospital was criticized for not adequately investigating the initial privacy complaint.

Initially, the hospital investigated the allegations and found the physician looked at the patient’s record once and that the access was appropriate (related to the physician’s role as coroner). After further concerns were expressed by the complainant, the hospital did a further audit and uncovered additional accesses to the record by the physician prior to the patient’s death and unauthorized in any way.

The IPC concluded that the hospital did not perform an adequate initial investigation of the initial complaint and because of that did not uncover the physician’s inappropriate access. But, once the inappropriate access was discovered, the IPC concluded the hospital did take adequate steps including: (1) installing a new auditing program to detect unauthorized access; (2) updating its policies; (3) implementing a yearly electronic privacy training program; and (4) strengthening the privacy warning system on its electronic system to tell users there will be disciplinary action for misuse.

Sufficient discipline

The hospital was criticized for not imposing sufficient disciplinary consequences. The IPC disagreed with the complainant.

The hospital had taken the case to the Medical Advisory Committee which imposed a three-month suspension of privileges and required that the physician do speaking rounds on his experience to teach others what to avoid and how to learn from his mistakes. The physician had accepted personal responsibility for the privacy breach and delivered presentations to his colleagues at the hospital and was frank and open about his learnings. The hospital undertook additional safeguards to prevent the situation from happening again. The IPC found that the hospital’s actions were sufficient and imposed no additional measures.

Bottom line: this is an interesting case for privacy officers to show what “reasonable” actions are required in a snooping case. Although the hospital did not respond adequately at first instance, the hospital took the situation seriously and was able to demonstrate to the IPC a “reasonable” response. It is notable that the physician took personal responsibility for his role in the privacy breach which was then used as a learning opportunity for others.

If you are a privacy officer in the healthcare sector in Ontario and want to feel even more confident in your role, join me for my next round of privacy officer training or advanced privacy officer training.

Here’s a link to the free video series for privacy officers in healthcare.

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