Download Sunshine2016 - Ontario Kinesiology Association

HEALTH LAW UPDATE
Presentation to:
Ontario Kinesiology Association
May 7, 2016
Elyse Sunshine
Transparency
2
Background
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•
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Regular news headlines
October 4, 2014 letter from the Minster to all College
Presidents and Registrars
Directive from the Minister - Your transparency initiatives
should include:
• How you will be strengthening existing measures
that the College or transitional Council has in
place to enhance transparency; and,
• New measures that the Council or transitional
Council will develop and implement to increase
transparency in College processes, decisionmaking and information disclosure.
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Transparency Principles
• 2013 group of Colleges formed Advisory Group for
Regulatory Excellence (AGRE)
• included the Registrars from medicine,
nursing, dentistry, pharmacy, optometry and
physiotherapy
• Purpose of AGRE: to consider and collaboratively
address significant regulatory issues
• Developed principles to guide regulatory college
discussions about making more information
publicly available
• In 2014, CKO adopted the AGRE principles
4
The Principles
Principle 1
The mandate of regulators is public protection and safety. The
public needs access to appropriate information in order to trust that
this system of self-regulation works effectively.
Principle 2
Providing more information to the public has benefits, including
improved patient choice and increased accountability for regulators.
Principle 3
Any information provided should enhance the public’s ability to
make decisions or hold the regulator accountable. This information
needs to be relevant, credible and accurate.
Principle 4
In order for information to be helpful to the public, it must be
timely, easy to find and understand and include context and
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explanation
The Principles cont.
Principle 5
Certain regulatory processes intended to improve competence
may lead to better outcomes for the public if they happen
confidentially.
Principle 6
Transparency discussions should balance the principles of public
protection and accountability, with fairness and privacy.
Principle 7
The greater the potential risk to the public, the more important
transparency becomes.
Principle 8
Information available from colleges about members and
processes should be similar.
6
Where are we now?
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•
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Each College and Transitional Council has submitted a
transparency report to the Ministry
Each College has committed to making transparency a
priority objective and to taking steps to enhance
transparency
Many Colleges are currently circulating or have already
passed by-law amendments which would allow more
information about their members to be made available to
the public, including
•
Criminal charges and criminal findings of guilt; bail conditions;
professional licenses held in other jurisdictions; discipline findings
in other jurisdictions; cautions and SCERPs ordered by the
College’s ICRC.
7
Where are we now?
Each College taking a slightly different approach to key
issues:
•
Whether to post information about an undertaking provided by
the member as a result of an ICRC matter
•
•
i.e. College of Optometrists and Physiotherapists will post
information about all undertakings
Types of charges and offences that should be posted
•
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All? Or only those under certain statutes or those relevant to the
member’s suitability to practise the profession?
CPSO to post charges and convictions under the Criminal Code and
the Health Insurance Act, while the College of Optometrists will post
charges and findings of guilt that the Registrar determines to be
relevant to the member’s suitability to practise
8
Where are we now?
Each College taking a slightly different approach to key
issues:
•
How long information should be posted and on what basis it
should be removed
•
•
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RCDSO will automatically remove information about cautions 2 years
after they are administered and about SCERPs once the requirements
have been fulfilled
CPSO has not yet addressed removal
College of Optometrists will remove information about undertakings,
cautions and SCERPs if the member applies, it has been over 3 years,
requirements have been fulfilled and information is no longer
relevant to suitability to practise
9
What have kins done?
• September 2015
• Council approved by-law amendments that would require the
posting of findings of guilt, bail conditions, and more detailed
information on matters referred to the Discipline Committee
• December 2015
• Council approved by-law amendments which would require the
College to post oral cautions and SCERPs (with removal 6 years
after completion), summary of charges laid against a member
under the Criminal Code or Controlled Drugs and Substances Act,
and information on members’ licenses from other professions
• Anticipated implementation date = June 1, 2016
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Authorization of Use of a
Specialty Title
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Specialties
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•
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Members not allowed to call themselves a “specialist” in
any area of practice
College currently allows members to use titles or
designations in addition to “kinesiologist”, “registered
kinesiologist” or “R.Kin”
Those titles must refer to certifications reflective of
significant skills and learning which would not necessarily
be achieved through normal CPD
Draft Specialties Assessment Framework and draft PolicyAuthorization of a Specialty Title
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•
College accepted feedback until April 30, 2016
Summary of feedback posted on College website
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Specialties
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Require advance knowledge and skills that are: (a)
recognized as part or combination of special area(s) of
kinesiology practice; and (b) cannot be adequately
represented to the public and to members of other health
professions solely through the use of the R. Kin
designation
Increase depth of knowledge and skills within specialty
area
Adhere to standards of practice and essential
competencies
13
Specialties cont.
• Demonstrate competencies required to provide
advanced and specialized services
• Respond to recurrent set of well-defined
situations/problems/needs of members of the
public
• Provide education and training beyond kin
bachelor degree or equivalent degree program
14
Accreditation of Specialty
Programs
•
•
•
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College to accredit certificate, diploma or degree
programs that qualify kins to practise as specialist
Program must submit an application for accreditation
Committee on Specialties to review, and College to
undertake extensive consultation with Ministry, other
regulators, associations, kins, and the public on proposed
specialty
After consultation, Council to make accreditation decision
15
Request to Use Specialty Title
•
Once program accredited, members may submit
application to use specialty title associated with the
program
•
•
•
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Must have completed study and supervised practise in
specialty program
Must meet qualifications defined in specific policy relating to
that specialty
Focused practice alone not sufficient to authorize specialty
Specialty title authorized by the College will be a
protected title and may only be used by individuals who
have the required education and certification
16
Continuing Professional
Development
17
Green v. Law Society of
Manitoba (2015)
•
•
Lawyer in Manitoba did not comply with the law society’s
requirement prescribed by the Law Society of Manitoba to
complete at least 12 hours of annual CPD activities and
was suspended
Brought an application for a declaration that these rules of
were illegal and invalid on the basis that:
•
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No statutory authority for making mandatory CPD rules
A suspension without hearing or a right of appeal violates the
rules of natural justice and procedural fairness
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Green v. Law Society of
Manitoba (2015)
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Application judge dismissed application
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Necessary statutory authority existed
“Administrative suspension” resulting from non-compliance
with CPD rules does not involve finding of professional
misconduct, or call into question character, conduct or
competency
Suspension at low end in terms of duty of procedural fairness
and this was met by way of written notice warning of risks of
non-compliance
Court of Appeal dismissed the appeal
Leave to appeal to SCC granted on December 10, 2015
Tentative hearing date = October 7, 2016
19
CPD for Kinesiologists
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Members must participate in self-assessment, continuing
education and professional development activities annually
College does not require a certain number of CPD hours or
credits per year; learning is self-directed
Annual online Self-Assessment
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Identify a minimum of three learning goals
Develop an Individual Learning Plan (ILP), including one activity
per learning goal
Provide personal assessment of effectiveness of CPD activities
undertaken in previous year
Complete and retain ILP in prescribed form and manner
Must undertake CPD activities to support achievement of
goals in ILP
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CPD for Kinesiologists
•
Must keep a Portfolio in accordance with College policy
that contains:
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Two most recent self-assessments and ILPs
Record of participation in CPD activities (for 2 years)
Evidence of participation in learning activity (for 2 years)
Failure to comply = eligible for Peer and Practice
Assessment and may be referred to ICRC for noncompliance
Members selected for a Peer and Practice Assessment will
have Portfolio reviewed by College staff or an assessor to
confirm completion and retention of Self-Assessments and
ILPs
21
Clinic Regulation
22
Clinic Regulation Working Group
• Clinic Regulation Working Group formed to
jointly explore the possibility of clinic regulation
•
Colleges of Audiologists and Speech-Language
Pathologists, Chiropodists, Chiropractors, Dental
Hygienists, Kinesiologists, Massage Therapists,
Naturopaths, Occupational Therapists, and
Physiotherapists
• Concern = unregulated clinics may be
compromising the care provided to Ontarians
• Developed and sought feedback until Dec 31,
2015 on a preliminary clinic regulation model
23
CKO
• Decision made to make a submission to the
Ministry of Health and Long-Term Care
• Goals of submission:
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•
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bring awareness to the gap in public protection that
currently exists,
discuss alternative solutions and
call on the Ministry to take action to address the gap.
• A draft submission has been prepared. Will be
reviewed by Council at June meeting.
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Proposed Clinic Regulation
Model
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Proposal for new legislation that would establish the
Health Clinic Authority to regulate clinics where health
care services are delivered
HCA would:
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Establish and maintain standards of qualification for the Clinics
Provide for a complaints process and clinic inspections
Work with the health regulatory colleges, including mandatory
reporting obligations of clinics and regulated health professionals
working in clinics
Public register to include information about a clinic, such
as the dates and outcomes of all inspections and any
terms, conditions or limitations on the clinic
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Compliance with Orders of the
College
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CPSO v. Botros (2015)
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Doctor charged with DDU conduct for failing to comply with
an order of the ICRC to complete the Communications Skills
course or an alternative course
ICRC had made the order which was the subject of an HPARB
review by Dr. Botros
HPARB upheld decision of ICRC
Following HPARB’s decision, College engaged in
correspondence with Dr. Botros in order to assist him in
complying with the order
Almost a year later, Dr. Botros had still not attended the
course and so the ICRC referred to the Discipline Committee
the allegation that by failing to comply with the order, he
had committed an act of professional misconduct
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Findings of Discipline Committee
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No dispute that Dr. Botros failed to attend a Communication
Skills course at any time before the Notice of Hearing was
issued by the ICRC therefore the Discipline Committee found
that Dr. Botros had failed to comply with an order of the ICRC
In determining whether the failure to comply with the order
constituted professional misconduct, the Committee noted that
it had no evidence of any extenuating circumstance (such as
prolonged illness) that would have served as a reasonable
explanation for why Dr. Botros failed to comply with the order
The Committee was disturbed by Dr. Botros’ failure to
communicate with the College and to respond to letters from
the College and felt that in doing so Dr. Botros had thwarted
the College’s attempts to assist him in complying with the Order
28
Lessons Learned
• Failure to comply with an order
of the ICRC can result in a finding
of professional misconduct,
absent a reasonable explanation
for the failure
• Such conduct is considered by
members to be disgraceful,
dishonourable and or
unprofessional
• It is critical that members
cooperate fully with their College
29
Resignation to Avoid Revocation
30
Dumchin and CNO (2016)
• In 2013, Nurse resigned his certificate of
registration while under investigation for
professional misconduct 2013
• In March 2015, he was found to have engaged in
professional misconduct in that he was convicted
criminally of possession of child pornography and
making available child pornography
• College sought revocation of his certificate of
registration
31
Discipline Decision
• Panel believed that the revocation of his
certificate of registration would be the
appropriate penalty
• However, it concluded that it did not have the
statutory authority to impose such a penalty on
the basis that Mr. Dumchin had resigned and did
not have a certificate that could be revoked
• As a result, the panel imposed only a reprimand.
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Appeal
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•
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College argued the panel’s interpretation of its
statutory powers was unreasonable and that the
certificate of registration should have been revoked
Nurse took the position the penalty was reasonable
and should be upheld
The Federation of Health Regulatory Colleges of
Ontario (“FHRCO”) was granted intervener status to
explain the legislative regulatory regime and the
significant consequences to the activities and
mandate of the colleges operating under the RHPA if
the appeal was unsuccessful
33
Divisional Court Ruling
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RHPA and the Code must be given a broad and purposive
interpretation in keeping with the College’s obligation to
protect the public
Panel’s interpretation would lead to “absurd results,” such
as the ability of a member to circumvent the statutory
requirement that applications for reinstatement by
members whose certificates have been revoked
Section 14 of the RHPA makes a former college member
subject to all stages of the investigation and disciplinary
process, including investigation, hearing, findings and
penalties
Set aside the decision and replaced it with an order
revoking the certificate of registration
34
Lessons Learned
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•
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Health regulatory colleges have continuing
jurisdiction over their members, including the
authority to impose the entire range of penalties
(even revocation) on a no longer existent certificate
of registration.
Regulated health professionals cannot avoid the
disciplinary consequences of professional misconduct
by unilaterally resigning.
Colleges maintain the authority to investigate, refer
to the Discipline Committee and prosecute alleged
misconduct that occurred while a person was a
member.
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Sexual Abuse
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Recent Developments
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In December 2014, Health Minister Dr. Eric Hoskins
announced that he had appointed a three-member task
force to review the legislation that dictates sexual abuse
policies for the RHPA Colleges
Task force is to look at issues such as:
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The definition of sexual abuse
How a college can discipline a member found guilty of sexually
abusing a patient
Mandatory reporting requirements of sexual abuse of patients by
health professionals
Whether there is room for further public participation in college
disciplinary processes.
How patients who have been sexually abused by health
professionals can be supported to come forward.
38
CPSO Review
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The CPSO concurrently undertook its
own review
October 19, 2015 report to Ministry
on actions taken
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Recommended amendments to the
RHPA
Adopted sexual abuse principles
Developed a framework to guide the
use of gender-based restrictions and an
internal policy to guide informationsharing with police
Enhanced public communication and
education and training for physicians
and College staff
39
Hanif v. Ontario College of
Pharmacists (2015)
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Mr. Hanif, a Loblaws pharmacist, engaged in a consensual
sexual relationship with Ms. W, a Loblaws cashier
During the period of their romantic relationship, Mr. Hanif
continued to dispense medications to Ms. W, including
filling a prescription six days prior to an instance of sexual
contact
Shortly after Loblaws became aware of their sexual
interaction, Mr. Hanif was fired
40
Findings
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Following an investigation, the College referred allegations
of professional misconduct and sexual abuse to the
Discipline Committee in May 2011
In March 2012, Mr. Hanif commenced an application in
the Superior Court of Justice challenging the mandatory
revocation provisions for sexual abuse
Discipline hearing proceed by way of an agreed statement
of facts and joint submission on penalty, whereby Mr.
Hanif plead guilty and the parties agreed to a suspension
of the mandatory 5-year revocation of his licence until the
completion of the constitutional challenge
41
Findings
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Mr. Hanif argued that the mandatory revocation
provisions of the RHPA Code fell within the federal
government’s exclusive jurisdiction over criminal law and
were, therefore, invalid
The trial judge rejected this argument
Court of Appeal upheld the trial judge’s decision finding
that the effect of the Code provisions is to protect the
public, not regulate morality as do Criminal laws
42
Lessons Learned
•
•
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There is an absolute
prohibition on sexual abuse of
patients by regulated health
professionals
This prohibition is
constitutional
Neither pre-existence of a
relationship nor “consent” will
negate sexual abuse
43
Spousal Exemption
44
No sex with patients!
• The RHPA and the Code contain strict, zerotolerance provisions regarding sexual abuse of
patients by regulated health professionals
• Where a health professional engages in certain
specified frank sexual acts with a patient,
including sexual intercourse, oral sex and
masturbation, he or she faces the mandatory
revocation of his or her license
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… even if the patient is a spouse
•
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Historically, certain professions had a practice of providing
treatment to spouses
The RHPA does not exempt spouses from the definition of
“patient”
As a result, a health professional may be guilty of sexual
abuse when providing treatment to his or her spouse, due
to the coexistence of a sexual relationship and a health
care professional-patient relationship
The Ontario Court of Appeal confirmed that the sexual
abuse provisions of the RHPA apply even where the
patient is the health professional’s spouse
•
penalty of revocation is both mandatory and constitutional
46
Spousal Treatment
• October 2013: Bill 70: the RHPA
Amendment Act (Spousal Exception)
• Amended the Code to permit individual
health colleges to enact regulations
permitting its members to treat their
spouses
o sexual relations between a health
professional and a patient will not be
considered sexual abuse if:
(a) the patient is the member’s spouse; and
(b) the member is not engaged in the
practice of the profession at the time that
any sexual conduct, behaviour or remark
occurs
47
Spousal Treatment
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On July 10, 2014, RCDSO became the first health college to
submit and have approved a regulation under Bill 70
Similar regulations are being considered by the Colleges of
Chiropodists, Chiropractors, Dental Hygienists, Denturists,
Homeopaths, Massage Therapists, Opticians,
Optometrists, Pharmacists, Respiratory Therapists, and
Traditional Chinese Medicine Practitioners and
Acupuncturists
However, until such regulations have been passed,
members of these professions who treat their spouses do
so at their peril!
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Spouses of Kinesiologists
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In December 2015, Council voted to formally submit
regulation to the Ministry of Health that would exempt
members’ spouses from the definition of sexual abuse
outlined in the RHPA
It will take several months for this regulation to come into
effect and until it does, members are prohibited from
treating spouses beyond any minor, episodic or
emergency care
Once in effect, treating spouses will not automatically be
considered sexual abuse
49
Treating Family Members and
Other Close Personal Relations
• Policy does not apply to
spouses or anyone in a
sexual relationship. This
applies to parents,
children, siblings, in-laws
etc.
• Treating such people is
generally not
recommended, except in
exceptional circumstances
50
Treating family
•
Exceptional circumstances = benefits of providing
treatment, outweigh the risks
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No other similar or viable care providers
Demonstrated financial hardship
Other barriers to accessing services
If circumstances change, must end the relationship.
Still accountable to the College for the care/services
provided
Details several professional obligations (conflict of
interest, professional boundaries, consent and capacity,
fees and billing, record-keeping, mandatory reporting) and
instructs members to assess whether or not they can meet
these obligations when treating a family member
51
Identity Theft
52
BMG v. MM (2014) (HPARB)
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Complaint by a patient regarding billings for services
provided by a dental hygienist submitted in the dentist’s
name
Dentist was required by the clinic to allow their dental
hygienists to use her stamp
Dentist acknowledged the billing submissions were
inappropriate. Explained that she had not treated the
patient on the dates in question and was not aware that
the treatment charges were submitted under her name
Denied any wrongdoing on her part and argued that the
dentist owners of the clinic were ultimately responsible
for the billing practices of the clinic
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Decision of HPARB
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The billings were inappropriate
Even though requirements of employer put dentist in
a difficult position, not sufficient to justify the use of
stamp for inappropriate billing
Dentist had the ultimate responsibility of ensuring
that all billings and claims submitted under her name
were accurate
Dentist required to appear at the College to be
cautioned regarding her professional obligations,
which included that “she should not allow her
professional responsibilities to be compromised by
anyone, including her employer”
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Lessons Learned
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•
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Professionals must take steps to
protect their “identity”
Professionals have a duty to supervise
all billing that is being completed in
their name by staff members, in order
to ensure compliance with their
professional responsibilities
Professionals are responsible for all
billing and claims submitted under
their name, even if not owner of clinic
and where the billing is completed by
staff members
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Advertising
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College Guideline
• Advertisements must be: accurate, true,
verifiable, professional and not misleading
• The information must be:
•
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comprehensible, and
in accordance with the generally accepted standards of
good taste
• The professional services offered by a member
advertising in his or her capacity as a member are
within the scope of practice of kinesiology
• No testimonials or endorsements
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Guideline cont.
• Not permitted:
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guarantees
comparative or
superlative statements
about service quality,
products or people
solicitations
58
SB v. TZ (2014) (HPARB)
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Complaint made by TZ that Dr. Bernstein (diet doctor) had engaged in
unprofessional behaviour by including testimonials and statements
which are false, misleading or deceptive on his website
Dr. B claimed that the applicable advertising regulation did not apply
to his website because it was designed for non-Ontario resident
viewers
ICRC did not accept this assertion because despite its intended
audience, the website could be accessed by Ontario viewers as well
ICRC found that the information on the Applicant’s website with
respect to Vitamin B injections was not scientifically or clinically
proven, and thus false, misleading and deceptive.
ICRC further concerned re superlative statements (75% of his patients
maintain their weight loss long-term, compared to 5% of patients who
follow other weight loss programs)
ICRC issued written caution
59
HPARB Review
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•
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Dr. B made several arguments regarding the adequacy of the
investigation and reasonableness, including that the ICRC’s
decision was unreasonable because it did not provide a
definition of “testimonials” or include an analysis of the
interpretation of “testimonials”
HPARB found this argument to be without merit, noting that
the ICRC has knowledge regarding what constitutes a
testimonial from over 20 years of experience interpreting
the advertising regulation, and that the ICRC does not have
to provide details in its reasons regarding every single piece
of information it relied on to come to its conclusion in order
for HPARB to review the validity of the decision
Confirmed decision of ICRC
60
Lessons Learned
•
•
•
Even where advertisements are
targeted for a specific audience,
where accessible by Ontario
patients, they may be found to be in
breach of the advertising regulations
Patient testimonials are an
unacceptable form of advertising
(even if others are using them)
Scientific and statistical statements
that are included in advertisements
or promotional materials must be
supported by clinical and/or
scientific evidence
61
Cyriac, Yau v. Bernstein, CPSO (2015)
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Dr. Bernstein made a complaint to the CPSO about the
advertising practices of Slimband’s Toronto clinic
In the process of investigating the complaint, a College
investigator discovered an ad for Slimband on a website
that included testimonials, before and after
photographs of patients, as well as names, biographies
and photos of Drs. Yau and Cyriac
Both doctors had been the subject of previous ICRC
decisions in respect of breaches of the advertising
regulations
ICRC ordered a caution in respect of the two doctors
Doctors sought review by HPARB. Decision was upheld
62
Court Challenge
•
•
CPSO’s advertising regulation states that no member shall
“cause or permit himself or herself to be associated with
the advertising or promotion of any product or service”
which contains a testimonial or any comparative or
superlative statements
Even though doctors did not place the ads, given the
history of Slimband’s advertising, which was known to the
applicants, they had “permitted” the advertisement
because they failed to show that they had taken
reasonable steps to remove and/or prevent improper
advertising bearing their names
63
Lessons Learned
•
•
•
•
College regulations and guidelines on advertising must be
followed
Health professionals may be held responsible for the
advertising practices of the clinic in which they work even
if they did not approve of or have control over the
advertising
Health professionals are required to take “reasonable
steps” to ensure that a clinic’s practices are in accordance
with College guidelines
The ICRC may impose increasingly serious dispositions for
recurrent concerns about a member’s conduct
64
Audiology Cases
• Small group of independent audiologists has
hired lawyer to file complaints to the College
against audiologists who work for large
companies about their advertising practices
• Although these audiologists are not practically
responsible for the advertising that the
companies do, the are held to be professionally
responsible for anything that offends the draft
College guidelines on advertising i.e.
testimonials, superlative statements
65
Privacy
66
Headlines
67
Recent News
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•
•
•
November 2014 - Documents containing personal health
information were found scattered across a street in
Toronto. The Privacy Commissioner issued a statement
regarding proper disposal of health records: “Disposal means
secure shredding in a manner that they can’t be reconstructed.”
January 2015 – Headline: Hundreds of hospital privacy
violations go unreported - Privacy Commissioner Brian Beamish
calls for changes in law to require hospitals to reveal breaches
to his office
March 2015 – Headline: Ontario government under fire over
inaction on health privacy law
May 2015 - Orillia Soldier's Memorial Hospital caught four
employees peering into 52 patient records
68
Consequences
•
•
•
•
January 2015 – IPC issues
guidance document on
“snooping”
PHIPA being reviewed
IPC launching an internal
review of how they deal with
PHIPA complaints, with a
focus on looking at
efficiency, transparency, and
fairness
Minister calls for
prosecutions
69
A New Risk:
Liability for Invasion of Privacy
A New Tort
• In the January 2012 decision Jones v. Tsige, the
Ontario Court of Appeal recognized a right to
bring a civil action for damages for the invasion of
personal privacy: “Intrusion Upon Seclusion”
70
A New Risk:
Liability for Invasion of Privacy
Facts
• Jones and Tsige were both employees of Bank
but did not know or work with each other
• Tsige became involved with Jones’ former
partner, and became involved in a financial
dispute with him
• Tsige accessed Jones’ bank records (including
personal and transaction information) 174
times to determine if partner was paying
support to Jones
• Jones complained and bank investigated.
71
A New Risk:
Liability for Invasion of Privacy
Findings
• Even though Tsige never published the
information or caused Jones any actual harm,
Jones sued Tsige for invasion of privacy.
• Trial Court dismissed the action on the basis
that there was no free-standing right to privacy
and that privacy legislation covered any breach
• Court of Appeal overturned dismissal of action
and granted judgment to Jones for $10,000.
72
A New Risk:
Liability for Invasion of Privacy
Elements of the New Tort
• Defendant’s conduct must be intentional or
reckless
• Defendant must have invaded plaintiff’s private
affairs or concerns
• Reasonable person would regard the invasion as
highly offensive causing distress, humiliation or
anguish.
73
Damages for Intrusion
Upon Seclusion
Unless financial loss is proved, damages are limited
to $20,000 based on five factors:
1. The nature, incidence and occasion of the defendant's
wrongful act;
2. The effect of the wrong on the plaintiff's health, welfare,
social, business or financial position;
3. Any relationship, whether domestic or otherwise,
between the parties;
4. Any distress, annoyance or embarrassment suffered by
the plaintiff arising from the wrong; and
5. The conduct of the parties, both before and after the
wrong, including any apology or offer of amends made by
74
the defendant.
Hopkins v. Kay (2015) ONCA
•
•
•
•
Class action law suit launched by one of 280 patients of the
Peterborough Regional Health Centre who had their health
records accessed by unauthorized staff members
The plaintiff had previously sought medical care for injuries that
were inflicted by her ex-husband. She subsequently left him
and took steps to hide her identity. She feared that the privacy
breach was an attempt by him to hire someone to locate her
Claim was for damages through the tort of intrusion upon
seclusion against the hospital and its employees who
authorized her health records without authority
Hospital argued that the action could not proceed because
PHIPA creates an exhaustive code for remedying privacy
breaches
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Findings
•
•
•
•
Court of Appeal upheld lower court decision: Ontario’s
health privacy laws do not prevent patients from taking
legal action against hospitals when their privacy has been
breached
Court noted that PHIPA was intended, and has been used,
to address systemic issues as opposed to personal wrongs
“the broad discretion conferred on the Commissioner by
PHIPA means that complainants would face an expensive
and uphill fight on any judicial review challenging a
decision not to review or proceed with an individual
complaint."
The court also awarded the respondent the costs of the
appeal at $24,00
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Lessons Learned
• Patients may now sue
hospitals and other
health-care organizations
for privacy breaches
• Organizations must have
comprehensive, up to
date privacy policies and
procedures in place,
including training for staff
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Upcoming Amendments to
PHIPA
• In the wake of a number of high-profile privacy breaches,
the Ministry of Health and Long-Term Care introduced
amendments to PHIPA through Bill 119
• Bill 119 passed second reading and is currently being
considered by the Standing Committee on Justice Policy
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Upcoming Amendments to
PHIPA
Key Amendments set out in Bill 119 include:
• Mandatory reporting of privacy breaches
• HICs will be required to report certain prescribed privacy breaches
to the IPC
• HICs will be required to notify relevant regulatory Colleges if a
member of a College who is employed by the HIC has (or is
suspected of having) committed a privacy breach for which the HIC
has initiated an investigation or taken disciplinary action
•
•
Doubling fines for offences under PHIPA from $50,000
to $100,000 for individuals and from $250,000 to
$500,000 for organizations
Removal of limitation period for PHIPA prosecutions
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College of Nurses of
Ontario v Calvano (2015)
Facts:
• Nurse was found guilty professional misconduct after
accessing the medical records of approx. 338 patients
without consent or authorization over the course of 2 years
• Patients were outside circle of care
• No evidence that she had disclosed any PHI to anyone else
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College of Nurses of
Ontario v Calvano (2015)
Penalty:
• Three month suspension
• Two meetings with a Nursing Expert
• Requirement to notify employers of decision for 18 months
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For More Information
Elyse Sunshine
Rosen Sunshine LLP
123 John Street, Suite 200
Toronto, Ontario
M5V 2E2
@RosenSunshine
Rosen Sunshine LLP
Tel: (416) 572-4902
E-mail: [email protected]
Website: http://www.rosensunshine.com
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