Evidence of meeting #25 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was care.
A recording is available from Parliament.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I'm just making an observation that your penalties are very severe. The general public's penalties, really, witnesses have come and said, are severe, but compared to your penalties they're nothing.
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
In the relationship of trust that is the foundation for these relationships between doctor and patient, lawyer and client, the consequences have to be severe or you wouldn't even have a relationship; it may be declined because of the quality of the data that's being shared. But in the commercial context, do you have the same trust with that store clerk at the dry cleaner that you would with your doctor, your dentist, or your pharmacist? So I would ask, are we comparing apples to apples here?
The CMA doesn't have a particular submission on the penalty provision of it, but we would just say that physicians have been regulated and will continue to be regulated by their code of ethics by their colleges.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Okay.
I'll move on to the issues on websites, the consent business.
I went to a dentist and there was paperwork, and it was really full of legalese. I'm sure the dentist didn't draw it up. It was drawn up by Ms. Nelson. That's a serious issue, because I don't think—and I'm looking at all of you, maybe not the pharmaceutical people, but certainly the medical and the dental people—the average person who reads that sort of thing has a clue what they've signed. The dentist or the doctor says, “Here, this is something new that the government has come up with; we have to comply with this rule, so just sign right here”, and you see two pages of legalese and it's very complicated.
Is there a way to make these consents that the dentists and the doctors are sticking in front of their patients more user-friendly?
President, Canadian Dental Association
I think one of the great benefits of enshrining the parts of the program would be to put some teeth in the whole question of this consent issue. I agree with you, and I've seen for years the whole question of, how valuable is an informed consent that you have from a patient who has no basis of medical or dental understanding that would allow him or her to evaluate that?
I will pass to my legal colleague over here. I don't see a lot of value in informed consent, particularly the confusion to the patient. So if through the legislation that exists with PIPEDA those sorts of things can be clarified and simplified, I would agree.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I'll bet you the average dentist may not explain it. He or she may not understand the form either. “Would you tell us what your latest health condition is? I want to put this—Because I'm going to be working on you, I want to know what your latest health condition is.” Then, I suppose, the insurance company could find out, couldn't they?
President, Canadian Dental Association
Only through the activity of a complaint to the college.... The regulatory body would be in a position to demand any information relative to patient care, but the private health record of the patient is not made available to the insurer.
Liberal
The Chair Liberal Tom Wappel
Thank you, Mr. Tilson.
Would the other two witnesses or groups agree that plain language consent is better than the jumbled legalese?
Mrs. Nelson.
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
I don't know if I should leap into the fray, given that my name has already been invoked as the poster child of jumbled legalese.
What I would offer is that in the kit you received is the privacy poster that CMA worked together with our divisions on. It looks very specifically at a plain language version. At the provincial level, when it came to the Ontario health information act, the Privacy Commissioner worked with the lawyers, actually, the bar association and the Ontario Medical Association, to have plain language posters and plain language forms. Actually, there was a collaboration of lawyers, privacy regulators, and physicians to come out with appropriate forms. So there's a good example of—and it seems to have worked quite well in the Ontario physician setting.
Executive Director, Canadian Pharmacists Association
We would certainly support plain language in consent forms. There are a number of areas of pharmacy practice where patients are required to provide consent. Obviously, we have a lot of experience particularly relating to the development of clinical trials relating to new drugs. The critical thing is to make sure the patients really understand what their options are and what the situation is. So keeping it as plain and as simple as possible is clearly our goal.
Liberal
The Chair Liberal Tom Wappel
Thank you.
We're now going to round two, which are five-minute rounds. We'll start with me, and then Mr. Van Kesteren, and Monsieur Laforest. If anybody else wants to ask questions, just get the attention of the clerk.
I'd like to ask Dr. Cham and Ms. Nelson a question.
In your opening remarks, under number one, the recognition in law of the unique nature of health care, you said that when PIPEDA was in fact first debated, CMA posed questions about the scope of the act and was told, one, that the legislation would not capture health information; and two, even if it did, it wouldn't change how we practise medicine. I'd like to know who told you that.
Chair, Committee on Ethics, Canadian Medical Association
I'm actually going to defer that to Ms. Nelson, who has a lot more history with the organization.
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
When PIPEDA was first put forth as a legislative proposal, CMA and other health care groups said, “Wait a minute, what about its application to health?” I think some of the response at the administrators' level from Industry Canada was, “What do you mean? It doesn't even apply to health.” So it was at that level of asking, why are you raising this question?
Liberal
The Chair Liberal Tom Wappel
So it was representatives of Industry Canada with whom you were engaging, who then told you that PIPEDA wouldn't apply to health information.
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
I think the initial reaction was, “Where are you coming from with that?” We were doing this for trade and commerce to promote—so it didn't seem that it was something specific to health that was worthy of comment.
As a caveat, I wasn't working at the association at that time. The brief that's in your package on Bill C-6 gives a more fulsome history of that, so I would direct your attention to that. I could follow up with my colleagues on the actual source of that quote.
Liberal
The Chair Liberal Tom Wappel
I'll put it another way. Was that information that you were given incorrect, in your view?
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
I would say yes, because that's why we have the PARTs guidelines, and that's where there has been all this effort to make sure the professions are actually working towards compliance with PIPEDA.
Liberal
The Chair Liberal Tom Wappel
That's why I'm curious. You have Industry Canada saying, “It won't even apply to you folks”, on the one hand, and then, even before the act comes into force with respect to the health professions, there are already discussions, one presumes, with Industry Canada about the PARTs guidelines. Are these the same people who told you it wouldn't apply in the first place?
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
I think there are two moments in time, so it was when PIPEDA was a bill.
Assistant Director, Legal Services and Chief Privacy Officer, Canadian Medical Association
When PIPEDA was a bill in 1999-2000, that sort of moment, it didn't really apply to health or where you're coming from. But then in the fall of 2003, when, after that delay period, it was going to apply, the health care providers said to Health Canada and Industry Canada, “We're hearing all kinds of different stories about how it's going to apply as express consent and we need to bring together some guidelines for clearance.”
There was something like a four-year gap between those communications. That's my understanding.
December 13th, 2006 / 4:25 p.m.
Liberal
The Chair Liberal Tom Wappel
I see. Thank you.
You asked for the implementation of the parts guidelines as part of the statute. I just want to be clear. In your package you have something called “PIPEDA Awareness Raising Tools (PARTs) Initiative for the Health Sector, Questions and Answers”, 20 pages. Is this whole thing what you want to see as being annexed to the act and thereby having legal status? Q and A—just so we understand, is that what you're talking about?
Liberal
The Chair Liberal Tom Wappel
Okay.
We've heard a lot about the issue of work product. We've heard a number of witnesses from Industry Canada, from the Privacy Commissioner, and we've heard evidence that there was a ruling by the previous Privacy Commissioner, all of them indicating that this is not personal information as contemplated by the act. And you disagree with that. I understand that.
Have any of your members been adversely affected by the ruling of the Privacy Commissioner? If so, in what way?