BC FIPA publishes “Personal Health Information and the Right to Privacy in Canada: An overview of statutory, common law, voluntary and constitutional privacy protection”

BC FIPA has released “Personal Health Information and the Right to Privacy in Canada: An overview of statutory, common law, voluntary and constitutional privacy protection”, a law reform report prepared by Susan Prosser of the BC Public Interest Advocacy Centre (BCPIAC).

The report outlines the gaps in protection in existing provincial privacy laws, the disparity in sources of privacy law and privacy policy, and the divergent interests of those involved in the administration of Canada’s healthcare system.

Confidentiality and informed consent form the backbone of the medical system. As Bruce Phillips, the federal Privacy Commissioner, argued in his 1996-97 Annual Report, “an individual’s right to control the disclosure of personal medical information should be paramount. That right should be overruled only in the face of an overwhelming and compelling public interest (or to provide the patient emergency care).”

If the federal and provincial governments fail to pass legislation which protects individuals’ rights to privacy, it will be up to the courts to decide under what circumstances individuals have a right to a reasonable expectation of privacy and whether legislation that permits either use or disclosure to third parties without consent passes constitutional muster.

Download the report (pdf).

BC FIPA and Partners Publish Discussion Paper on Alberta Health Information Act

BC FIPA along with the Canadian Mental Health Association (Alberta Division), the Alberta Medical Association, and United Nurses of Alberta has published a discussion paper on Alberta’s recently adopted Health Information Act (HIA).

The paper, titled “Alberta’s Health Information Act and the Charter”, reviews the underpinnings of the right to privacy in Canada, the protection of this right afforded under the Charter, and discusses issues and concerns with the HIA.

The Act allows individually identifying health information to be disclosed without the individual’s consent in a number of circumstances … If particularly sensitive information is not effectively protected, this may violate individuals’ privacy and also the equality rights of individuals with certain personal characteristics.

The definition of non-identifying information establishes a low threshold which … increases the likelihood of privacy violations.

This preliminary analysis indicates that there are constitutional issues raised by the text of the Health Information Act. It will also be essential to bear in mind the constitutional protection of the right to privacy as the Act is implemented. The actions of government in implementing the Act … must therefore be taken in a manner which is consistent with the Charter, including its requirement to respect individuals’ privacy.

Download the discussion paper (pdf).