Information & Ethics Committee on Dec. 13th, 2006

[Jean Nelson, Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association]

If I might, the fact that some provincial legislation has been found to be substantially similar, such as Ontario's Personal Health Information Protection Act, has eased some of that confusion, because CMA's division, the Ontario Medical Association, worked very closely to put together privacy posters to gear up to that specific piece of provincial legislation.

So you're very right. There is Ontario. Alberta has health-specific legislation, and of course Quebec and the Maritimes.... In our interpretation, the territories is the jurisdiction where PIPEDA applies to the health information sector.

[Dr. Jeff Poston]

If I could just add, the general issue of administrative burden for health care practitioners is a significant one, particularly in the pharmacy sector, where we have to deal with significant administrative loads around both public and private drug plans. Certainly at the time that PIPEDA was drafted, because of the vagueness of the legislation, we were very concerned about what the administrative burden was likely to be. Hence they asked for delaying it substantially, until we could get more specific information around health care.

In practice, again echoing what my colleagues have said, the PARTs guidelines have been very critical in allowing that burden to be manageable.

But again, in every provincial jurisdiction, each with its own privacy legislation, pharmacies in those provinces have obviously had to comply with that. But usually this has been recognized as being substantially similar, so less of a burden.

[Jim Peterson, Liberal, Willowdale, ON]

So from the health care providers' point of view, you haven't really seen any particular problems with PIPEDA.

Ms. Cham, you mentioned that information regarding prescriptions is treated as work product information and should be treated as personal information. Why do you say that?

[Dr. Bonnie Cham]

This information is gained in the patient-physician relationship when we're diagnosing illnesses and prescribing drugs. It's not hard to imagine that patients who are being treated by physicians for potentially stigmatizing diseases may be less forthcoming with information about themselves if they realize that information may be available to others.

[Jim Peterson, Liberal, Willowdale, ON]

I have no problem with that.

What about information about prescribing patterns or something, which would be totally different and has been held to be quite all right?

[Dr. Bonnie Cham]

We recognize that there is a social interest in having that type of information to be used as peer assessment, to be used as aggregate data, to be used for research and planning, and to do so with suitable oversight by regulatory authorities. But what we want to prevent is the commercial use of that kind of information by private interests for marketing research. Under the appropriate regulations, such as those they would come under, we feel that medical licensing authorities, or pharmacy regulating boards in individual provinces, and research boards are what should be regulating these types of uses of that data.

[The Chair, Liberal, Tom Wappel]

Thank you, Mr. Peterson.

Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you, Mr. Chairman.

If I understood correctly, Mr. Peterson was referring earlier to provincial laws and the federal law. Here is what I understood from previous testimony: the Personal Information Protection and Electronic Documents Act applies in provinces where there is no similar law to protect personal information.

Would anyone like to confirm this for me?

[Dr. Jeff Poston]

Yes, that's correct, as I understand it.

I have a legal colleague here who can perhaps answer that.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Alright.

In Quebec, we have an Act respecting the Protection of Personal Information. The federal law would not apply to health, dental and pharmacological care. Is that correct?

[Jean Nelson]

Allow me to respond, Ms. Lavallée.

The Quebec Act respecting the Protection of Personal Information has indeed been found substantially similar to the Personal Information and Electronics Document Act. Consequently, the federal Act does not apply in Quebec, just as it does not apply to Ontario’s health sector.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

So if I understand correctly, your statements today concern other provinces of Canada, and not Quebec, since a similar law exists in Quebec. Is that correct?

[Jean Nelson]

Except for new issues such as electronic medical files. Should a change arise, Quebec’s Act respecting the Protection of Personal Information would have to be amended because it was adopted in 1994. The level of protection must also be increased.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

The laws must correspond; they need to be harmonized.

[Jean Nelson]

Yes, exactly. I believe the guideline on harmonizing laws comes from a European committee.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Pardon me, I didn’t quite understand what you just said.

You say that it comes from the European Union?

[Jean Nelson]

It was the catalyst for creating the federal Act. That is to say, a European committee at the OECD suggested that, in order to promote exchange and trade with each other, States should enact laws to protect private information. I believe it was the catalyst that brought about the federal Act at the end of 1999.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you very much for this valuable information.

When the Information and Privacy Commissioner of British Columbia appeared before the Committee, he said that there was much work being done at the federal level with regard to protecting health information.

Did you participate in that work and, particularly, on harmonizing the confidentiality of health information throughout Canada? Could you elaborate on that?

[Jean Nelson]

To my knowledge, the Canadian Medical Association was not in partnership with Great Britain on this issue but we are members of the World Medical Association (WMA). In this regard, the question as to how to protect the privacy of patients remains.

Other representatives here today might have something to add on this subject.

[Dr. Jeff Poston]

I just want to clarify. Concerning the harmonization of legislation across Canada, I think the most important piece of work we've seen on that particular area, which we did participate in, was the development of this pan-Canadian framework that I referred to in our presentation. That has really set out to try to promote at least some harmonization and some commonality of some of the approaches that the different legislation at the provincial level has given us.

Particularly, I think the view of the pan-Canadian framework exercise that was led by one of the federal assistant deputy ministers, Mr. Marcel Nouvet, was that there was the need to really prepare for the implications of the electronic health record.

I think one of the areas where PIPEDA is important, in terms of future health care systems, is in the transmission of information across provincial boundaries and also across international boundaries, as well as in looking at what some of the implications of that might be as we move to a world where we have electronic records. We have a lot more mobility of people, but there are probably also issues we'll have to face concerning the mobility of health care professionals as well.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Actually, with regard to electronic files, it is easy to see how things work with pharmacists and dentists: all their information is processed electronically.

As for physicians, there are practically no electronic files. I don’t know if your physician uses them but I have mostly seen paper files.

Is there starting to be a trend among physicians to take the electronic route or do they continue to prefer paper files?

[Dr. Bonnie Cham]

There are a number of primary care clinics that are setting up initiatives for electronic health records. In addition, there's a lot of electronic exchange of information in the hospitals and in clinics among radiologists, for example, and among laboratory information systems. So there is a lot of personal health information on electronic records in Canada.

In the individual doctors' offices, it's not widespread yet, but there is certainly interest and potentially movement towards making this much more widespread. So I do agree that we need to have proper regulations to ensure protection of privacy.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Ms. Cham and Mr. Poston, you said earlier that a patient’s medical information should not be used for purposes other than research. Mr. Poston, you used the word “inappropriate”.

Do you not find it difficult to distinguish one from the other? Some companies use and collect medical information. They share part of it with university groups for research and sell some to private enterprise for market studies, I suppose. That would surely be useful. They probably want to know what kind of medications they could sell more of.

Do you not think it difficult to categorize these things? What constitutes “going over the line”? Do you know?

[Dr. Jeff Poston]

First of all, the drug utilization prescribing data has been collected and used in many different ways for many years. The practice of collecting prescribing data from community pharmacies in Canada has probably gone on for 30 or 40 years. I think it's a very good example—and you've put your finger on the issue—to show that the critical issue is how that information gets used. The information is extremely useful to show us how drugs are actually being prescribed and used in the community.

People tend to forget that about 50% of prescriptions in Canada are paid for in the public sector; the others are in the private sector. The methods that are used give us one way of collecting information from both sectors so we can get a very complete picture of what is happening.

This has gone on, and there was relatively little concern about the issue until we saw the emergence of some of this data's being used to directly target marketing activities of the few individual physicians. I think when the data is used in aggregate, at a group level, there's less concern about it, but when it's used for commercial purposes to target individual physicians, that's an issue of concern.

The other important area is that I think the data that gets collected has to—

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

I am sorry. My time is up.