Diane McLeod-McKay, the territory’s information and privacy commissioner, argues there should not be a mandatory 150-day limit to investigate privacy complaints. (Joel Krahn/Yukon News file)

Information and Privacy Commissioner allows health privacy complaints to continue

Health and Social Services and the Yukon Hospital Corporation had argued the IPC lost jurisdiction

Yukon’s Information and Privacy Commissioner will allow separate health information privacy complaints to continue against the Yukon Hospital Corporation and Department of Health and Social Services despite the entities arguing she’d lost jurisdiction over the cases.

In two similar decisions that were the subject of a press release last week, commissioner Diane McLeod-McKay found that she did not lose jurisdiction even though the complaints, made under the Health Information Privacy and Management Act (HIPMA), were not resolved by the 150-day period set out in the act.

That timeframe, McLeod-McKay wrote in both decisions, is more a suggestion than a mandatory limit, and to treat it as the latter would only disadvantage complainants who have no other manner of recourse.

According to one decision, the office of the Information and Privacy Commissioner (IPC) received the first complaint against Health and Social Services on Nov. 29, 2016, which alleged that the department was “collecting and using personal health information from his physician’s patient files for the purpose of remunerating his physician for services rendered contrary to HIPMA” and that it “does not have adequate security measures in place to protect the personal health information collected.”

The IPC notified Health and Social Services about the complaint Dec. 8, 2016, and assigned an investigator to try and settle the complaint. However, on Feb. 2, 2017, the investigator notified the IPC that a settlement couldn’t be reached, at which point the IPC registrar issued a notice of consideration.

Final submissions for that were due March 8, but after examining them, McLeod-McKay determined they were “insufficient” and that she needed additional records from both Health and Social Services and the physician involved. The registrar sent a letter to the department, dated July 27, requesting the records, but on Aug. 28, received a response from Health and Social Services alleging the IPC had lost jurisdiction.

The IPC received the second complaint in question on April 19, 2017, alleging that the Yukon Hospital Corporation had disclosed the complainant and the complainant’s child’s personal health information to a community health centre. As with the first case, the IPC assigned an investigator to the case but a settlement couldn’t be reached, and the IPC registrar prepared a notice of consideration on Aug. 25. In its submissions, the Yukon Hospital Corporation objected to the IPC considering the complaint “on the basis that she has lost jurisdiction as a result of being out of time” under HIPMA.

In her decision on the Yukon Hospital Corporation complaint, McLeod-McKay wrote that interpreting the 150-day time limit in HIPMA as mandatory would have a “significantly detrimental effect” on the IPC’s ability to perform her public duty.

“In most cases, the 150 days are used up by a combination of settlement attempts and initial/reply submissions,” McLeod-McKay wrote. “If (the 150-day time limits) are mandatory and the IPC determines she needs additional evidence to properly consider a complaint and she is at the 150 day mark by the time she receives the parties initial and reply submissions, she would be prevented from obtaining the evidence she needs to properly consider the complaint.”

Having a mandatory time limit would also disadvantage complainants, McLeod-McKay wrote in her decision on the Health and Social Services complaint.

“If (the 150-day timeframes) are found to be mandatory, the Complainant would lose his ability to have his Complaint addressed and the Custodian would not be held accountable for potential non-compliance,” she wrote.

“There is no appeal mechanism available to the Complainant…. The prejudice to the Complainant, as a result of a finding that these subsections are mandatory, is clear. On the other hand, there is no prejudice to the Custodian which has collected or continues to collect this personal health information other than to wait for my decision in respect of the Complaints put forward.”

In both cases, McLeod-McKay ruled she still had jurisdiction even though more than 150 days had passed since her office received the complaints, and that she will continue to consider them.

Spokespeople for Health and Social Services and the Yukon Hospital Corporation declined to comment directly about the decisions, citing the ongoing complaint procedures and reviews on how to handle future HIPMA matters.

In a phone interview, McLeod-McKay said she doesn’t expect any similar challenges to her jurisdiction to arise in future complaint investigations.

“I’ve issued my findings on how the law is to be interpreted, so going forward, unless someone challenges my decisions in court, they actually have to follow that,” she said.

Contact Jackie Hong at jackie.hong@yukon-news.com

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