Submission to Standing Committee on Health Bill 52, Health Information Amendment Act, 2009 April 24, 2009.

• Author: Bailey, Tracey M.
• Position: Alberta

The Health Law Institute, Faculty of Law, University of Alberta

The Health Law Institute is an academic institute of the University of Alberta established in part to promote positive reform of law and associated health policy. Based upon previous work in the area of health law and the handling of health information, we are pleased to have the opportunity to comment on Bill 52. We look forward to providing further comments and explanation in person if requested to do so by the Standing Committee on Health.

In this submission, we outline aspects of Bill 52 which provide improvements over the current legislation, and comment upon amendments that, in our respectful opinion, tip the balance too far in favour of non-explicit uses of health information without sufficient detail regarding the related mechanisms and duties. There is little weight left on the side of protection of the rights and privacy of individuals respecting access to their health information. We conclude with recommendations regarding next steps.

Purposes of the Health Information Act

Alberta's Health Information Act (HIA) was enacted in 2001 with certain explicit purposes in mind (as set out in s. 2 of the legislation). All of those purposes are relevant to the amendments that have been introduced in the form of Bill 52. Those purposes are as follows:

1. to establish strong and effective mechanisms to protect the privacy of individuals with respect to their health information and to protect the confidentiality of that information,

2. to enable health information to be shared and accessed, where appropriate, to provide health services and to manage the health system,

3. to prescribe rules for the collection, use and disclosure of health information, which are to be carried out in the most limited manner and with the highest degree of anonymity that is possible in the circumstances,

4. to provide individuals with a right of access to health information about themselves, subject to limited and specific exceptions as set out in this Act,

5. to provide individuals with a right to request correction or amendment of health information about themselves,

6. to establish strong and effective remedies for contraventions of this Act, and

7. to provide for independent reviews of decisions made by custodians under this Act and the resolution of complaints under this Act.

1999 cH-4.8 s2

It is clear from a review of such purposes that the task for the legislature is the striking of an appropriate balance between competing purposes such as protection of individual privacy and the use of health information to provide better health care to Albertans, for example. We respectfully submit that Bill 52, The Health Information Amendment Act, 2009 will significantly undermine the achievement of an appropriate balance between these important aims if enacted in its current form. The amendments tip the scale in favour of the use, as government sees fit, for any number of purposes (not only to improve the health care system or to provide health care services) without adequate consultation, oversight by the Information and Privacy Commissioner of Alberta, consideration of the wishes of individuals, or appropriate accountability to individuals for the collection, use and/or disclosure of their information.

Expanded Scope of HIA

We support the amendments in Bill 52 aimed at expanding the scope of "health service" and, as a result, information that will be treated as "health information" under the HIA. We make this submission based on the predication that other concerns as set out in our submission are addressed. It has been unwieldy for health care providers that deliver health care services to be subject to more than one piece of provincial legislation depending upon method of payment for those health care services. Expansion of health services regardless of source of payment will enable health care providers to deal with health information of individuals in a consistent manner. A distinction of protection based only on source of payment is not a rational basis for distinct rules.

Electronic Health Record and other Electronic Health Information Systems

The stated intention of these amendments, support for the development of EHRs in Alberta as "a tool that...