Privacy and Confidentiality Health Laws, Policies and Security

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New advancements in health record technology raise questions about privacy and security. Consumers are worried that someone might be able to hack into health systems to gain access to private health information.

Federal and state privacy laws such as HIPAA are designed to protect both paper and electronic health records. Systems must be designed to meet these stringent requirements. Any certified electronic system must be password protected, and all files need to be encrypted.

Unlike with paper health records, a log is created every time someone views an electronic health record. In addition, access to certain parts of health records can be regulated by password and system design.
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The Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights with respect to that information. At the same time, the Privacy Rule is balanced so that it permits the disclosure of personal health information needed for patient care and other important purposes.

Your Health Information Is Protected By Federal Law

Most of us believe that our medical and other health information is private and should be protected, and we want to know who has this information. The Privacy Rule, a Federal law, gives you rights over your health information and sets rules and limits on who can look at and receive your health information.

Who Must Follow This Law

We call the entities that must follow the Privacy Rule covered entities.

Covered entities include:

• Health Plans, including Health Insurance companies, HMOs, company health plans, and certain government programs that pay for health care, such as Medicare and Medicaid.
• Most Health Care Providers—those that conduct certain business electronically, such as electronically billing your health insurance—including most doctors, clinics, hospitals, psychologists, chiropractors, nursing homes, pharmacies, and dentists.
• Health Care Clearinghouses—entities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa.

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The Privacy Amendment (Private Sector) Act 2000 extends the operation of the Privacy Act 1988 to cover the private health sector throughout Australia.

The co-regulatory approach offered by the legislation allows for flexibility in how organisations (including health service providers) deal with their privacy obligations, while ensuring standards apply to the protection of personal information, including health information. The legislation recognises the particularly sensitive nature of health information, and places extra protections around its handling, including enforcement mechanisms to deal with breaches of the privacy standards.

In the private health sector, the legislation will complement the existing culture of confidentiality that is fundamental to many health service providers’ professional practice obligations.

The legislation, through its ten National Privacy Principles, promotes greater openness between health service providers and consumers regarding the handling of health information. The legislation introduces, for instance, a general right of access for consumers to their own health records, and requires health service providers to have available documentation that clearly sets out their policies for the management of personal information.

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A true pioneer in North America in the area of access to information and protection of privacy, Québec devoted three decades to devising an innovative legislative framework that has paved the way for the introduction of similar measures throughout the Canadian federation. Twenty-five years after its inception, this innovative framework, as embodied by the Commission d’accès à l’information du Québec, is intended as an essential reference for all Western countries with regard to access to information and protection of privacy.

The Commission d’accès à l’information, which is under the authority of the Québec National Assembly, was created in 1982 further to increasing public concern over the issues involved in protecting privacy and providing access to information. From the start of the 70s, this interest in the so-called “new law” showed up gradually in a number of statutes enacted at that time. As early as 1971, with the passage of the Consumer Protection Act, the legislator broke new ground by ensuring all persons right of access to their credit record. Laws governing professions, such as the Professional Code, enshrined principles such as professional secrecy and the confidential nature of personal information.

In enacting the Charter of human rights and freedoms, the Québec National Assembly recognized the right of all persons to respect for their privacy as well as their right to information and, in so doing, took an historic legislative step that would lay the legal foundations for fundamental principles.

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The Personal Health Information Act (PHIA) provides you with the right to:

1. access your personal health information, and
2. have your personal health information kept private

when that information is held by a health care provider, health care facility or public body (referred to in the Act as “trustees“).

Access

The right of access means that you can ask to see, or get a copy of, personal health information about you.  You also have the right to request a correction to this information if you feel it is inaccurate or incomplete.

Access to your health records allows you to make informed decisions, based on complete information, about your health and health care.

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The FOIP Act provides the authority for the Information and Privacy Commissioner to comment on the implications for freedom of information or for protection of privacy of proposed legislative schemes or programs of public bodies. Privacy impact assessments are not mandatory under the FOIP Act, but are recommended for major projects that involve the collection, use or disclosure of personal information.

The HIA requires that the Information and Privacy Commissioner receive a privacy impact assessment for review and comment before a custodian implements proposed administrative practices and information systems relating to the collection, use or disclosure of individually identifying health information. Privacy impact assessments are mandatory under the HIA if the project fits the foregoing definition.

The Office of the Information and Privacy Commissioner has developed a Privacy Impact Assessment (PIA) process to assist organizations in reviewing the impact that the new project may have on the individual privacy. The process is designed to ensure that the public body or custodian evaluates the program or scheme to ensure compliance with the FOIP Act or HIA.
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Canadians expect and have confidence that the privacy and confidentiality of their personal information will be protected when governments use it in the course of providing programs and services. In no field is the maintenance of this trust more critical than in the health sector.

Recognizing the importance of privacy, the Federal/Provincial/Territorial Conference of Deputy Ministers of Health tasked its Advisory Committee on Information and Emerging Technologies to develop a Pan-Canadian Health Information Privacy and Confidentiality Framework.

The objective of the Framework is to respond to Canadians’ privacy and confidentiality expectations and to suggest a harmonized set of core provisions for the collection, use and disclosure of personal health information in both the publicly and privately funded sectors. Consistent, or at least more consistent, privacy regimes among jurisdictions would facilitate health care renewal, including the development of electronic health record systems and primary health care reform.

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Confidentiality is the cornerstone of the patient-pharmacist relationship. Patients have a right to expect that their pharmacist(s) will hold their personal health information in strict confidence. In order to assist pharmacists in their obligation to preserve the privacy of their patients, the following guidelines were developed:

1. Personal health information is privileged and confidential and should not be released to any person without the consent of the patient or the patient’s agent (someone legally entrusted to handle the patient’s affairs). Confidentiality is owed to all patients, regardless of age. Therefore, pharmacists should use professional judgement in releasing information to the parent of a minor. In the case of older children, the consent of the child should be obtained prior to the release of personal health information.

2. Demographic information (address, date of birth, etc.) is also considered confidential. To ensure that this type of information is not inadvertently disclosed during the process of confirming patient identity, pharmacists should ask patients to provide information for confirmation purposes.

3. Pharmacists should not release any data which reveals any specific identifier or demographic information about patients or provide information about medication dispensed which could compromise the patient’s identity.

4. Pharmacists should take care that patient information is not seen or overheard by other customers, tradespeople, service crews, pharmaceutical representatives, etc., who may be in or about the dispensary.

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