The Yukon Information and Privacy Commissioner is sounding an alarm after having a “troubling” time trying to resolve two complaints against the Yukon government’s Department of Health and Social Services.
In press releases as well as an interview on Jan. 21, Diane McLeod-McKay expressed frustration at the department repeatedly ignoring her requests for updates on two files related to the territorial Health Information Privacy and Management Act (HIPMA).
“This is what’s concerning me the most, is the fact that a particular public body … has taken the position that, you know, they’re ignoring me, they’re not answering my questions,” she told the News.
“It really brings into question, you know, whether or not the purpose of HIPMA is going to be achieved if these things can actually happen.”
The Department of Health and Social Services (HSS) did not respond to a request for comment before press time.
Both complaints in question were filed to McLeod-McKay’s office in 2018.
In one, McLeod-McKay found HSS wrongly extended its deadline to provide an applicant with their continuing care and home care records, and then failed to provide records by the revised deadline.
The complainant requested the records in August 2018 and under HIPMA, should have received them by mid-September that year. However, by June 2019, when McLeod-McKay issued a consideration report on the matter, the complainant still had not received all the records.
McLeod-McKay made eight recommendations, including for HSS to provide the complainant with all the records and to evaluate its resources to ensure they’re sufficient to process the number of access requests it receives.
In the other case, McLeod-McKay found HSS failed to exercise its discretion, a requirement under HIPMA, when sharing portions of the complainant’s personal health information with a psychiatrist. She made two recommendations, again in June 2019 — for the department to train employees on that HIPMA requirement, and for it to update her within 90 days on the steps it was taking to do that.
In both cases, the department accepted all the recommendations but then failed to follow up with McLeod-McKay. Based on correspondence posted to the information and privacy commissioner’s (IPC) website, it also ignored several of her messages.
In a letter to deputy HSS minister Stephen Samis dated Nov. 1, 2019, McLeod-McKay wrote that the difficulty in dealing with the department was “very concerning.”
“It is not uncommon for the Department to be involved with my office given the nature of its programs and services,” she wrote. “What is uncommon is the lack of cooperation by the Department in working with my office to bring these matters to successful resolution … We do not experience any of these challenges with other Yukon government public bodies, or any other body for that matter, that we deal with.”
McLeod-McKay cc’d the department’s chief information officer, Jennifer Potvin, and minister Pauline Frost on the letter. She told the News she’d never had to copy a minister on any of her correspondences before.
HSS ultimately implemented the eight recommendations from the first case, but chose not to implement the two related to using discretion, despite having accepted the recommendations earlier.
In the Yukon, the only recourse when a public body rejects he IPC’s recommendations is for the original complainant to take the public body to court.
McLeod-McKay said that’s never happened during her term, adding that she thinks it’s unfair that the responsibility is placed on the complainant to ensure compliance.
In other jurisdictions, she explained, IPCs have the power to issue orders, and in Newfoundland, it’s the public body that has to go to court if it wants to ignore a recommendation.
“I am the information and privacy commissioner and I am supposed to have a certain amount of authority and responsibility under the legislation for monitoring compliance with the act … And as you can see from the correspondence, I had a significant difficulty in trying to get (HSS) to respond to me,” she said.
“So that raises the question for me, you know, how would a complainant ever navigate that course on their own? It would be very difficult.”
Asked if her office was working with HSS to figure out the communication issues, McLeod-McKay replied, “Let’s just say we’re working to resolve the problem.”
Contact Jackie Hong at firstname.lastname@example.org