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Improving Health Outcomes through Poverty Reduction: Part I

Contributed by: Gary Lai

Introduction

The Canada Health Act (1984) established universal health care in Canada with five principles, one of which is accessibility—insured Canadians should not be impeded from reasonable hospital and physician services. But there is ample evidence that the medical outcome of low-income people is not what was originally intended by the legislation; they are disproportionately less healthy than the rest of the population. The late sociologist and former University of Laval professor André Billette highlighted two studies that looked at health outcomes of the poor in Canada in 1979. One, led by Philip Enterline, formerly a biostatistician at the University of Pittsburgh, found that in Montreal, the poor made the most doctors’ visits. Another was by University of Ottawa’s Pran Manga, who found that, between 1974 and 1975, the lower the family income, the greater the use of all types of medical services – significantly more for members of families making under $4,000 (approximately $18,000 in 2019, when adjusted for inflation).

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The lower the family income, the greater the use of all types of medical services || (Source: Flickr // Aimee Dars Ellis )

Nicholas Vozoris and Valerie Tarasuk, of the University of Toronto, observed in 2004 that a family on welfare was more likely to report diseases associated with general, mental, and social health than a respondent household that was not on welfare. In fact, they were even found to be more at risk than members of other low-income groups, including the working poor. Despite finding a correlation, the researchers cautioned that their model could not prove a causal link. That being said, more than 3.4 million Canadians are currently eligible for welfare and Vozoris and Tarasuk’s conclusions would suggest that a significant portion of them may be at risk for income-related health issues, due to problems with hunger, affording special diets and exercise, and buying essential medicine and medical supplies.

The Link between Poverty and Food Insecurity

Patricia Collins, of Queen’s University, and her colleagues claimed there is an established link between poverty and food insecurity, and their associated non-communicable diseases. Household food insecurity (HFI), according to Collins, is the “inability to consume an adequate diet quality or sufficient quantity of food in socially acceptable ways.” 3.8 million Canadians, or 12% of households, were considered food insecure in 2014.

65% of welfare recipients are considered food insecure, with 27% of them being extremely food insecure. 37% of those on worker’s compensation or employment insurance also experience food insecurity. People suffering from HFI report poorer mental, physical, and oral health than the general population. They suffer from diabetes, heart disease, hypertension, and depression at a higher rate than the general population, and these conditions are exacerbated by stagnant or negative income growth in poor households and rising costs of food and basic necessities.

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3.8 million Canadians were considered food insecure in 2014 || (Source: Behance // Dr. Jenson Mak )

Studies clearly show that poverty and illness can form a vicious cycle, affirming the work of 19th century British public health pioneers Edwin Chadwick and William Farr. So what can be done about it?

Poverty Reduction Strategies

Billette and his colleague identified four categories of poverty reduction: redistribution of income to the poor; reduction of regional inequalities; community-based, non-social service focused programs, for example, initiatives for young people; and local social services that benefit everyone. Income redistribution can be done in three ways. The government can redistribute through public expenditures on public services, although, citing two studies, Billette found the effectiveness of this approach to be inconclusive. Simple transfer payments – towards universal transfers, old age security, and guaranteed income supplement – are also possible. The third way to redistribute wealth is through corporate and personal income taxes, although the former tends to be passed onto consumers in the form of higher prices and the latter makes low-income Canadians pay more proportionally compared to those in higher income brackets.

Deanna Williamson, of the University of Alberta, claimed, “efforts to improve the health of Canadians are intricately linked to policies and programs that reduce poverty and its negative influences on health.” Her study collected information about health sector initiatives addressing poverty from Health Canada, 12 provincial and territorial health ministries, and 49 of 137 health regions – including Ontario’s district health councils. Specifically, she identified policies, programs, and projects that addressed poverty. 53.1% of the health initiatives Williamson identified focused on poverty and its negative effects on health. 20.5% of the initiatives’ objectives were targeted toward poverty: to raise awareness about poverty, to keep people from becoming poor, to enhance skills in people living in poverty, and to change social and economic conditions leading to poverty. Williamson also found that Health Canada is employing “significantly fewer” strategies to address poverty than ministries at lower levels. In addition, 46.9% of the initiatives targeted marginalized populations such as teen parents and their children, Indigenous peoples, IV drug users, and new immigrants. All of this hints at the infringement upon another tenant of The Canada Health Act, which guarantees that all Canadians are entitled to public health insurance coverage on equal terms and conditions.

According to Williamson, there is an “ever-growing body of evidence about the detrimental effects that poverty has on health…Necessary as individual and family-focused strategies may be in improving the health and quality of life of Canadians in poverty, they do little to reduce the number and proportion of people in poverty. The most effective way to decrease the negative health consequences of poverty is, first and foremost, to reduce poverty.” Some of the causes of poverty are changing labour market conditions and insufficient social assistance benefits and minimum wages.

8660821435_56bf08e951_b Food banks and community food kitchens are among some poverty alleviation strategies || (Source: Flickr // Andrew Belt )

Collins and her colleagues found a correlation between the risk of HFI and decreasing income. They proposed a model to address HFI, in which poverty alleviation works alongside charities (like food banks), household improvements and supports (like community food kitchens), and community food systems (like food charters). These are all municipal-level efforts. The scholars predicted that generous income support programs (like social assistance, child care benefits, and housing supports) from the government would resolve the root causes of poverty in the community.

Next Steps

With the link between poverty and poor health established, I will now turn my attention to possible solutions. Economic solutions – from the macro to the micro levels – exist as well as community-based, governmental, and legislative channels. In any case, poverty must be addressed as a component of improving health outcomes for low-income Canadians.

I will continue my investigation into the link between poverty and poor health outcomes, as well as explore possible solutions to poverty-related health inequities in Part II.

Gary Lai holds an MEcon in Economics from the University of Hong Kong, where he has published a paper on Hong Kong’s public health spending. He also holds a B.A. in Economics from the University of Southern California. In between, he attended UBC’s Allard School of Law and Columbia University, where he studied premedical sciences.

MJLH Podcast 2019 – Surrogacy Law

Summary

Currently, Section 6 of the Assisted Human Reproduction Act prohibits payment to surrogates. The only type of legal surrogacy is voluntary and benevolent, and there is no legal framework surrounding it. Parliament is exploring the idea of amending the Assisted Human Reproduction Act in order to decriminalize commercial surrogacy.

This podcast features 4 interviews that touch on a range of issues relating to surrogacy, including a contractual aspect, proposed legislation, and social concerns, to name a few. We hope to explore different perspectives to develop a better idea of surrogacy laws in Quebec and the rest of Canada – how they exist now, how and why they have developed in this direction, and where they may be headed.

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From left to right: Sidney Rotchin, Bianca Braganza, MP Anthony Housefather

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From left to right: Sidney Rotchin, Bianca Braganza, MP Anthony Housefather

Speakers:

Professor Rosalie Jukier, Dr. Kathleen Hammond, MP Anthony Housefather,

Stefanie Carsley Ph.D Candidate

Hosts: 

Bianca Braganza (BCL/LLB Candidate), Sidney Rotchin (BCL/LLB Candidate)

Editor: 

Laura Michaud-Ouellette (PharmD, BCL LLB Candidate)

Podcast

Constitutionalization of the Right to Health: a Pathway to Improved Health Outcomes?

Contributed by: Maya Gunnarsson

Introduction

This February, the McGill Journal of Law and Health hosted a conference on Access to Care and the Constitutionalization of the Right to Health.  One panel featured two experts on the right to health and the Canadian constitution.  The general argument for the constitutionalization of health is that it will lead to better health outcomes within a society.  The panellists, however, questioned this assumption.  This article will highlight some of the challenges associated with the constitutionalization of the right to health, as well as explore how this process has played out in other countries.

What is the right to health?

The concept of health being linked to human rights first emerged internationally in the middle of the 20th century, along with the rise of international organizations such as the United Nations  and it’s related agencies. The preamble of the World Health Organization’s constitution, which came into force in 1948, declares:

Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being […].

Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.

Article 25 of the Universal Declaration of Human Rights (1948) states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.”  Since then, this right has been reinforced internationally through various international treaties and declarations, such as the International Covenant on Economic, Social, and Cultural Rights.

Beyond international obligations, over half of all constitutions globally recognize a right to health today.  As the concept of health as a human right has been entrenched around the world, and as countries have adopted legislation to protect this right, the question of what constitutes health arises.  Does a right to health simply mean a right to access healthcare? Or is a more holistic view that addresses the various social determinants of health necessary?

The debate over what is encompassed by ‘health’ is central to the discussions on the constitutionalization of the right to health.  When the right to health is offered constitutional protections, if framed as a positive right, this can mean that the government has an obligation to ensure everyone has access to the services, programs, and treatments that they require to maintain their health.  If a government fails to provide access to these things, the courts can step in and order the government to do so.  This is in contrast to negative rights, which protect individuals from disparate effects of governmental legislation, but do not entitle individuals to any benefits from the State.

The debate over what is encompassed by ‘health’ is central to the discussions on the constitutionalization of the right to health.

With a more limited conceptualization of health, this right could compel governments to ensure all of their citizens have access to adequate healthcare services. A more expansive understanding of health, however, could require governments to ensure that individuals have access to things such as affordable housing, drinking water safe for consumption, and/or food security. Constitutionalizing the right to health imposes burdens upon governments. Without clearly delineating what those burdens are, the interpretation of them is left to the judiciary.

The impact of constitutionalizing the right to health

Advocates of constitutionalizing the right to health argue that when the right to health is afforded constitutional protection, individuals will have better health outcomes, and that courts can be used to protect the health outcomes of the most vulnerable individuals in society.  In effect, they believe that the constitutional protection of health rights will lead to better and more equitable health outcomes for society.

Opponents of the constitutionalization of the right to health, however, point to examples of countries such as Brazil, where the constitutionalization of the right to health has actually had a negative impact on the country’s overall health.  They claim that providing constitutional protections to health rights leads to middle-class and wealthy individuals using the courts to ensure access to costly, non-critical treatments, which takes money away from providing care to the most vulnerable in society.

Various studies have been performed on the effectiveness of constitutionalizing the right to health in terms of increasing health outcomes, and the results have been mixed.  One study, which looked at data from 144 countries over 40 years, found that the right to health has positive effects for the overall health of a population, as it ensures access to more and better health services, including medicines. Another study, which looked at 195 countries over 15 years, found that the right to health led to increased public expenditures on healthcare, but mixed results on health outcomes.

Among countries that have the right to health entrenched in their constitutions, one study identified two main ways in which this right has impacted public health.  In the first method, judicial enforcement occurs primarily through individual lawsuits, resulting in specific orders for the individuals involved to receive certain treatments from the government.  By contrast, the second method involves the judiciary ordering broader changes to national health policies.

Lessons from Abroad

The individualistic approach is the one that garners the most criticisms. This is because it can often lead to the reallocation of limited healthcare resources away from programs that benefit a large percentage of the population, towards the few individuals who are able to make claims through the courts.  Opponents say that policy makers are in the best position to allocate healthcare funding to maximize the benefit throughout society as a whole.  The judiciary in countries such as Brazil and Costa Rica have been criticized for their lack of cost-benefit ratio assessments in their judgements.  The approach of Brazil’s courts has been described as “applying the right to health as a trump against rationing decisions.” Further, due to their lack of medical knowledge, judges are not always in the best position to determine if a specific treatment is necessary, high-priority, or cost-effective.  Essentially, healthcare policy is complex and multi-faceted; judgements that only consider individual rights can have far-reaching unintended consequences for the wider system.

The judicial approach to the constitutionalization of the right to health in countries such as South Africa has favoured rulings directed at broader health policy, rather than individual cases.  Though not without its critics, this approach has been praised for the positive impact judicial intervention has played on health policy and health outcomes.  For example, the South African government’s response to the HIV/AIDS crisis in the late 1990s and early 2000s was seen by many as inadequate.  In 2002, Treatment Action Campaign (TAC), a South African activist organization, brought a constitutional challenge against the government for their unreasonable response to the crisis.  The court ruled in TAC’s favour, leading to healthcare policy reforms and an updated strategy to address HIV/AIDS in the country.

Indian courts have taken a similar approach to South Africa, in ordering changes to broader healthcare policies.  For example, in 1996, in Paschim Banga Khet Mazdoor Samity v State of West Bengal, the complaint of a man who had been turned away by six hospitals due to a lack of beds in the state of West Bengal reached the Supreme Court.  They ruled that the denial of timely medical care constituted a violation of his constitutional right, and that “the State cannot avoid its constitutional obligation […] on account of financial constraints.”  This decision outlined what the government must do to ensure that proper medical facilities were available to deal with emergencies, in order to meet their constitutional obligations. Notably, India’s constitution does not make direct reference to a right to health; rather, provisions on the right to life, personal liberty, and welfare have been interpreted to include the right to health.

Canadian Context

Canadian courts have been reluctant to interpret section 7 of the Canadian Charter of Rights and Freedoms as including a right to health, as was the case in India with similarly worded constitutional provisions. The Supreme Court of Canada, through cases such as Chaoulli and Carter, has favoured an interpretation of sec. 7 that views the right to life in a strictly literal sense, meaning it is only engaged when there is a risk of death. Many proponents of offering constitutional protections to the right to health in Canada believe that broadening the interpretation of sec. 7 would be a far simpler route to constitutionalizing the right to health than amending the constitution.  The question remains however, whether such constitutional protections would actually improve health outcomes in Canada.  If the Canadian judiciary were to open its doors to this type of protection in the future, they may look to their foreign counterparts for lessons on how to enforce this right in an equitable way, without creating the same barriers to health that currently exist for accessing justice in Canada.

Maya Gunnarsson is a Junior Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds a M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. She also holds a B.A. in Political Science from McGill University.  Maya has worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.

Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC

Contributed by Loïc Welch

Introduction

“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)

The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years.

The Duty to Consult

The relationship between Indigenous peoples and Canada is governed by the honour of the Crown, enshrined in section 35 of the Constitution and includes the duty to consult. This duty binds the Crown to consult Indigenous peoples whenever it contemplates actions potentially infringing Aboriginal rights. Moreover, as detailed in the Haida Nation decision, this duty is triggered even if the right or title potentially exists, but has not yet been determined to exist. The duty cannot be ignored if a consultation is requested. It requires that both parties deal in good faith.

To interpret the honour of the Crown as restricting its responsibility to only matters of Aboriginal rights and titles would run counter to reconciliation goals between the government of Canada and Indigenous peoples. After years of inquiry, the Truth and Reconciliation Commission put forth calls to action to guide the Canadian Government in recognizing its part played in the colonial history with regards to the marginalization of Indigenous peoples. This led to the establishment of the Principles respecting the Government of Canada’s relationship with Indigenous peoples. The sixth principle specifically states that “[t]he Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources” [added emphasis]. With this principle, the government recognizes that their duty towards Indigenous peoples extends beyond the duty to consult on purely Aboriginal rights and treaties. For instance, many Nations live and depend on the lands around them and their interests in these lands have a major impact on their health and general well-being. If the government intends to implement or disband regulations, through legislation, which may have adverse impact on neighbouring Nations, then it seems the duty to consult would be triggered.

Health extends beyond simply what you would go to the hospital for. There is a growing body of research that highlights what are termed “social determinants of health” which comprise social, economic, cultural, and political inequities influencing health outcomes of Indigenous peoples. With this in mind, it’s important to recognize that the colonial history and continuing marginalization of Indigenous peoples has profound effects on their mental, physical, and spiritual well-being. In fact, Indigenous peoples, both on reserve and off-reserve, suffer from serious health issues (e.g. increased rates of malnutrition, suicide, mental health issues, infectious diseases) as compared to the general Canadian population. While the Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 case, outlined in the following section, appears to deal exclusively with issues of Aboriginal rights and treaty rights, the repercussions are far-reaching and set precedent for immunizing legislation from the duty to consult. This duty has been recognized and circumscribed to executive actions. In other words, the government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

The government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

In 2012, the Government of Canada introduced two omnibus bills setting the course on environmental protection; no Indigenous Nations were consulted before the introduction of these bills. The Mikisew Cree First Nation brought an application for judicial review, stating that because of the potential impact of the omnibus legislation on their treaty rights, the Crown had a duty to consult in accordance with s. 35 of the Constitution.

The duty to consult is context-dependent and requires a proportionate consultation to the degree of infringement on the alleged right. In this case, the Mikisew Cree Nation contended that the legislation threatened their right to hunt, trap, and fish on their traditional territory—which have core implications to the way of life and health of the Nation. These rights were recognized and guaranteed by the Crown in Treaty 8, and the alleged breach by the omnibus bill would require “deep” consultation, proportionate to the infringement.

The reviewing judge agreed with the Mikisew, stating that the duty to consult had been triggered. However, the Federal Court of Appeal disagreed and found that the reviewing judge erred by reviewing legislative action, which is immune from review. The Mikisew appealed the decision to the Supreme Court of Canada. The majority concluded that duty to consult is only recognized and circumscribed to executive action. In other words, the government only has an obligation to consult Indigenous Nations where it is taking direct action, and not when developing legislation. The majority explained that the separation of powers found in the Constitution favours minimal interference from one branch of government to another (i.e. legislative, executive, and judiciary). The majority stated that “[a]pplying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature [para 38].” Moreover, the recourses used to mend a breach of the duty to consult would amount to undue judicial interference in the law-making process.

The Honourable Justices Abella and Martin JJ., concurring in-part, expressed their concern about the majority’s reasoning when it came to legislative immunity from judicial review in situations where the duty to consult is potentially breached. They contended that recognizing this immunity would essentially create a “gap in the s. 35 framework” and leave “Aboriginal rights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action [para 79].” The Justices continued, stating that the Crown was bound to its honour in all relations with Indigenous peoples and that the principle of parliamentary sovereignty does not absolve the Crown from consulting when potential rights or interests are at stake.

Commentary & Implications

The governing principles that guide the relationship between the Crown and Indigenous peoples in Canada denote the importance of respecting already-established treaty rights and Aboriginal rights. However, there is also a contention that the interests of Indigenous peoples extend beyond simply these categorized rights.  In the third governing principle, it is stated that the honour of the Crown also ensures that Indigenous peoples are to be treated with respect like all other Canadians. Importantly, the goal of these principles is to recognize a duty of “good faith, the rule of law, democracy, equality non-discrimination, and respect for human rights.” Do Indigenous interests and human rights not include a fundamental right to health, such as that recognized by the World Health Organization? The Supreme Court of Canada, in Mikisew case, restricts the duty to consult to direct action by the government, rendering legislative direction which directly threatens many Indigenous peoples’ way of life immune from judicial oversight. In this case, the omnibus bills will weaken the protections in place for natural resources and food sources for the Mikisew Nation, thereby threatening their livelihood and other interests, such as health, which were previously protected by treaty.

Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

Electronic Health Records: a Glimpse Into the Legal Framework

Contributed by Annelise Harnanan 

Introduction

In an attempt to improve and modernize the state of health care in Canada, many provinces have been investing significant amounts of money and time into the digitization and centralization of health records. In 2013, Quebec introduced an electronic database, called the Québec Health Record, to securely share a patient’s information with their other healthcare providers. The aggregation of patients’ health data on a single electronic database has many advantages. However, the increasing use of Electronic Health Records (EHRs) has caused some concern that the legislative framework surrounding health information privacy might require some adaptations.

The term “Electronic Health Record” has been defined somewhat inconsistently in the literature. Häyrinen, Saranto & Nykänen, basing their definition off of the International Organization for Standardization, have described it as a “repository of patient data in digital form, stored and exchanged securely, and accessible by multiple authorized users”. EHRs bring all of a patient’s health data into one digital location. This information can be accessed by any of that patient’s health care providers when authorized by a patient. Notably, there are other electronic forms of medical information, such as electronic patient information files, which are localised at hospitals and health clinics and are not shared amongst health care providers.

2472281967_73772b6c43_o Electronic servers can be used to store digital information || (Source: Flickr // Stefano Petroni )

The Benefits of an Electronic Health Record

The implementation of EHRs has been widely supported and encouraged. Experts claim that such modernization would greatly increase efficiency within the Canadian health care system. A 2002 report compiled by the Commission on the Future of Health Care in Canada contended that EHRs would significantly improve patient treatment.

For example, the existence of an EHR could provide an emergency room doctor with quick and easy access to a patient’s medical information and prescription history which the doctor otherwise may not have had. Additionally, with EHRs, doctors at walk-in clinics can have access to the details of a patient’s medical history. In both cases, patients can receive more personalized care due to the existence of an EHR. Therefore, even when a patient is not being seen by a family doctor who is familiar with their unique health needs, the patient can still receive care tailored to their own health circumstances. This is especially valuable given that in 2016, Statistics Canada reported that 15.8% of Canadians above the age of twelve said they did not have a regular health care provider.

Privacy Breach Risks

A commonly cited concern over the implementation of EHRs in Canada is the risk of privacy breaches. The digitization of health records may bring an ease of access which may not have previously existed when records were in paper form and stored under lock and key. Organisations that have access to electronic health records, which can include the provider of the electronic platform itself, information technology specialists, hospitals, private clinics and sometimes third parties such as provincial Workers’ Compensation Boards, would need to introduce stringent privacy regulations and mechanisms for ensuring only those authorized to view a particular patient’s health data have the ability to do so.

Concerns over the security of private health information under EHR systems are not unfounded. Earlier this year, a lab assistant in Calgary admitted to inappropriately accessing the health records of 11 Albertans. This unauthorized access was discovered during a routine audit of accesses to the EHR system. It appears that the digitization of health records in general can make health information more vulnerable to these privacy breaches.

Nova Scotia, which does not have an EHR system (the province is currently undergoing a bid process to acquire one) has also been the site of some serious privacy breaches. Between 2005 and 2011, a former employee of the Nova Scotia Health Authority (then called Capital District Health Authority) accessed, without authorization, the information of approximately 100 friends and family members. This has resulted in a class action lawsuit with a proposed settlement worth about $400,000. The former employee who committed the breach admitted to doing so simply because it was “so easy”. In a report released last year by the Office of the Information and Privacy Commissioner for Nova Scotia, Privacy Commissioner Catherine Tully recommended that the province’s health authority implement a number of preventative measures, including online privacy training for staff and proactive user audit flags for high profile patient and excessive patient access. The Health Authority has accepted and implemented these recommendations. Nevertheless, some have taken this incident as an indication that the province is not ready to embark on the task of implementing a centralized EHR system.

Mitigating risk – the Legislative Framework

In Canada, there are two levels of privacy legislation, both at the federal level and provincial level. At the federal level, laws relating to privacy rights include The Privacy Act, which governs the way federal government institutions handle personal information, and The Personal Information Protection and Electronic Documents Act (PIPEDA), which governs how private-sector organizations use personal information.

The provinces also have their own privacy legislation, and in some provinces this legislation has been deemed “substantially similar” to PIPEDA and must be followed instead. Ontario, Nova Scotia, Newfoundland and New Brunswick have adopted legislation deemed substantively similar to PIPEDA with respect to health information. Because of the complex nature of healthcare provision in Canada, there is some uncertainty over whether provincial or federal legislation would apply in the context of digital health information, EHRs and privacy breaches.

Generally, however, publicly funded hospitals are not regarded as commercial bodies, and their use of personal information is regulated by the provinces and territories. On the other hand, the Office of the Privacy Commissioner of Canada’s website explains, “private health practitioners” and “privately funded long-term care facilities, nursing homes, retirement residences and home care services are generally considered to be conducting commercial activities and therefore… PIPEDA would likely apply to their personal information practices unless substantially similar legislation exists within the province or territory”.

Because personal health information is mostly regulated under these provincial acts, the presence of EHRs and the degree of the law’s protection over the health information contained within them vary across Canada. Québec has had an EHR system for many years, and the province has developed a robust regulatory framework around it. Conversely, as mentioned earlier, Nova Scotia currently has no EHR system. Interestingly, although Ontario has an EHR system, the laws surrounding it, which received royal assent in 2016, have not yet come into force.

Ontario’s Personal Health Information Protection Act (PHIPA) sets out that health information custodians must “take steps that are reasonable in the circumstances to ensure that personal health information in the custodian’s custody or control is protected against theft, loss and unauthorized use or disclosure and to ensure that the records containing the information are protected against unauthorized copying, modification or disposal”. Additionally, concerns over privacy breaches can be reported to the Information and Privacy Commissioner (IPC) in the form of a complaint, whose office will then investigate the incident and where appropriate, levy a fine against someone who has committed an offence under the act. In 2017, the IPC ordered a social work student to pay $25 000 for accessing information of five individuals without proper authorization.

In 2016, amendments to PHIPA that would regulate EHRs were made under Bill 119. These amendments describe what it means to ‘use’ an Electronic Health Record, create a duty for prescribed organizations to develop and maintain an EHR, and set out the requirements of the EHR. Though these laws are not yet in force, presumably because it would take a great deal of time and resources for hospitals and other prescribed organizations to ensure they have the proper infrastructure to comply with them, the fact that they have been passed indicates that the Ontario government recognizes the growing prevalence of EHRs and the resulting need to legislate in a manner that protects the health information of Canadians.

Nevertheless, given the personal nature of the information that is contained in Electronic Health Records, one might question whether these provincial regulatory frameworks can provide adequate protection. Ontario’s PHIPA, for example, allows for someone whose privacy has been breached to commence a proceeding at a Superior Court for “damages for actual harm that the person suffered as a result of a contravention of this Act or its regulations”. However, some have suggested that with the increased use of EHRs, more safeguards should be put in place. In the Report on the Future of Health in Canada, Commissioner Romanow recommended that privacy breaches of Electronic Health Records should be “treated as an offense under the Criminal Code of Canada”. Indeed, this could ensure more consistent protections against improper access of personal health information throughout the country.

Annelise Harnanan is a Junior Online Editor with the McGill Journal of Law and Health. She is in her first year of the B.C.L./ L.L.B. program at McGill University’s Faculty of Law, and has a keen interest in health policy. She holds a BA with distinction in Political Science from Dalhousie University.