Diane McLeod-McKay, the territory’s information and privacy commissioner, released a consideration report on Jan. 15 after her investigation into a complaint filed by a new mother in April 2017. (Crystal Schick/Yukon News)

Yukon Hospital Corp. violated privacy legislation by sharing new mother’s health info, IPC finds

Mother filed complaint saying she had not consented to hospital sharing her info with health centre

The Yukon Hospital Corporation (YHC) violated privacy legislation when it shared a new mother’s health information with a community health centre without the woman’s knowledge or consent, the territory’s privacy watchdog has found.

However, after an internal review and consultation with British Columbia health authorities, the YHC determined that there was nothing wrong with its policies and nothing needs to change.

Yukon Information and Privacy Commissioner (IPC) Diane McLeod-McKay released her consideration report, the result of her investigation into a complaint filed by the mother, on Jan. 15, along with two response letters from the YHC.

According to the report, dated March 16, 2018, the IPC received a complaint from the unnamed mother on April 19, 2017.

The mother alleged that after giving birth at Whitehorse General Hospital, she returned to her home community, where she was contacted by a nurse from the local health centre who had details about her delivery.

Health centres are run by the Department of Health and Social Services, a separate government body from the YHC.

The mother said she had not consented for the hospital to share her or her baby’s records with the health centre, and, by doing so without her knowledge or permission, the YHC had violated the territory’s Health Information Privacy and Management Act (HIPMA).

The two sides failed to reach a settlement and the issue was brought to the commissioner.

After unsuccessfully attempting to argue that the IPC had lost jurisdiction to consider the matter, the YHC submitted that it was authorized under HIPMA to disclose the records and that they were necessary for nurses working at the health centre to provide follow-up care to the mother and baby.

Affidavits by a doctor and nurse also indicated that the mother had been told that a public health nurse would contact her to arrange an at-home, follow-up visit.

In her submissions, the mother said that while she acknowledged the important role that health centres play in follow-up care, accessing those services are optional and patients should have final say on how much of their information is shared.

“Advising a patient of a resource that is available to them is not the same as getting informed consent to disclose medical records. It is impossible to raise an objection or refuse a service if that patient is not aware of the services or what is involved in accepting those services,” the report quotes the mother as saying.

As part of her consideration, McLeod-McKay spoke to Perinatal Services BC, which created the records that are also used in the Yukon. While YHC said that all personal health information in the records is “reasonably necessary” to provide appropriate at-home follow-up care to mothers and newborns, in British Columbia, only a portion of the records are shared, with one record in particular — the labour and birth summary record — never shared at all.

When asked about the discrepancy, McLeod-McKay wrote that YHC said that it “does not have a full understanding of the practices used in British Columbia, or the rationale for those practices” and “does not wish to speculate” on why the differences in practice exist.

McLeod-McKay ultimately found that the mother did not give consent for her health information to be shared and that YHC failed to disclose only the minimum amount of information necessary to provide follow-up care, thereby violating HIPMA. It had also defaulted to adhering to a mandate from HSS to share records instead of exercising its discretion, despite the fact that the sharing would put the YHC in violation of HIPMA.

The IPC made four recommendations:

-for the YHC to have the mother and baby’s health information returned or destroyed;

-for the YHC to continue consulting with Perinatal Services BC to determine whether it needs to change its practice on how much information about mothers and newborns is shared with health centre nurses;

-for YHC to adopt the practice of telling new mothers about the disclosure of their personal health information and their right to refuse its disclosure;

-and for YHC to review its practice of disclosing the health information of mothers and newborns for a purpose mandated by HSS to ensure the practice does not violate HIPMA.

The YHC initially objected to the recommendations, but was informed that it had to either accept or refuse them.

In an April 20, 2018 letter, the YHC refused the third recommendation, saying that it had not been given an opportunity to make arguments on the matter. It accepted the other three.

In a progress update letter dated Aug. 16, 2018, YHC chief privacy officer Warren Holland wrote that YHC could not destroy the mother and baby’s health information as it was in the hands of another entity — HSS (the IPC notes that the information has since been destroyed).

The letter also states that the YHC finished consultations with health authorities in British Columbia and found “no justification” to modify how things are done in the Yukon. As well, the letter continues, the YHC’s review found that its information-sharing practices do not violate HIPMA.

In a postscript, McLeod-McKay wrote that the case “demonstrates that seeking consent for collection, use and disclosure of personal health information is the best policy.”

The Yukon’s HIPMA, when compared to legislation in other jurisdictions, is an outlier, she notes, in that it gives public-body custodians — for example, YHC and HSS — the authority to collect personal health information without consent.

“When a custodian does not obtain consent from an individual to collect, use or disclose their personal health information, the individual is left uninformed about their choices,” she wrote.

“… Without this information, they do not know they have any choice about what happens with their personal health information when engaging the services of these custodians.”

When HIPMA is reviewed, McLeod-McKay wrote, she will recommend for this authority to be removed.

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

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