Nova Scotia Personal Health Information Act

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Bill No. 89 Personal Health Information Act *

An Act Respecting the Collection, Use, Disclosure and Retention of Personal Health Information


Debate Prior to 3rd Reading

HON. FRANK CORBETT: Mr. Speaker, would you please call Bill No. 89.

Bill No. 89 - Personal Health Information Act.

MR. SPEAKER: The honourable member for Halifax Clayton Park.

MS. DIANA WHALEN: Mr. Speaker, I'm glad that I happen to be staying at the House tonight since we have gone to third reading on Bill No. 89, which is the Personal Health Information Act.

The points that I wanted to raise, in particular on this Act, relate to the amendments that I had made this afternoon and I just wanted to make sure that, for the record, that we understood what they were for and why they were before us. In fact, those amendments were the amendments that were suggested after we received a submission from a professor at the University of Kings College, a journalist professor, who asked us to consider and asked the

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House, in fact, in a five-page letter, to please consider the access to information that the media requires in order to do their work.

I know the minister had looked at this issue as well and certainly had discussed it with her staff, so I realize that it was an informed decision, in terms of voting against those amendments today and that is important that people have time to consider amendments when they come forward. Those amendments had taken out the areas relating to the Freedom of Information Act, which the professor felt were actually contradictory, that they would in some way diminish our Freedom of Information Act. In fact, by including all health information in this Act, in the Personal Health Information Act, it actually took, as his letter said, a huge body of information out of the information you could ask for, under freedom of information.

I want to be clear, it isn't information that we're talking about that is personal, that you could say was Diana Whalen's health record, but it would be information that others might use for research or in a body of information, that might be all the people that had a particular - maybe everybody who had H1N1, how many were there, where were they and that sort of thing. It is possible to say that maybe somebody could deduce that I was one of those people who had a particular affliction or whatever it was they were looking at.

The media feel very strongly, and I have to agree, that they can't be threatened with fines for simply asking for information. That's the way the Act is written now, that there is an implied section there - it's not in front of me right now, Mr. Speaker, but it might be nearby. In the Act, there is a section that implies that if you even ask for information, you are breaking the law. It certainly would be against the law if you were given that information, if somebody incorrectly gave it, but to even ask would be considered a breach of the law and therefore, a $10,000 fine or a jail term could result.

I think it's important that we look at that kind of concern, that researchers, media and others might want to know about trends in health care, about negative impacts, maybe it's about errors in the medical system. They need to get some general information on adverse effects and on outcomes. The way the bill is written, the media feel they cannot even ask for some of that information because there is that implied section that says, if you could even impute who it was that was affected, then therefore, you are breaking the law.

I think it's very important, again, that we look at who suggested that. The professor who brought it to our attention is Fred Valance Jones and he has written textbooks that are used across the country in the teaching of journalism and has very high credentials in that area and had taken the time to go through in great detail, to see what areas he felt were going to impede the work of journalists, frankly, in our province.

I wanted to find out - I understood that our bill, this Personal Health Information Act, largely mirrored the Ontario Act. I don't believe this is an issue in Ontario, so I think these

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clauses must be different than what was in the Ontario Act. We felt that by making the amendments that I propose today, we could take out the portions that are controversial, follow what Mr. Valance Jones has suggested, which would really just be an assurance to the media and to the journalistic community that we'll respect their right to seek information to hold the government and in fact institutions accountable.

All of us in the House know how important the media is in terms of being one of the pillars of democracy in the sense that we all have a balance and if we didn't - you know, we all need to do our job well. Opposition needs to do their job, so does government, and the media needs to be there to also hold us accountable and to do the investigative reporting that is so important, that sometimes brings issues to our attention that we would otherwise have been completely unaware of, or government might be unaware of.

So it's very important that they not have their hands tied and I don't think I need to remind the members of this House that Joseph Howe was the original defender of freedom of speech for journalists, freedom of the press. He defended that right right here in the Legislature in a six-hour trial for treason, right next door in our Legislative Library, and his portrait hangs right there on the government side of the House. I think that that is a very important connection that we have and journalists across the country recognize what he did. Often Nova Scotians may not know exactly who he is but I'm telling you people who work in journalism certainly do. They have the highest regard for him and I believe that we should be looking at any Acts that we have before the House that might possibly step on the rights of journalists to do their work and to do it well.

I mean we really do need to encourage an active journalistic media that will seek out stories and do that kind of digging and that's not going to happen if they're in jeopardy of a $10,000 fine whenever they ask for information from a health institute or a hospital, or place that provides care. As we know, this bill covers not just our hospitals but it covers all of dentists offices and other health practitioners, doctors practices as well, anybody who's holding medical information on an individual.

I think we all very much support the move that's within this bill to bring us to a point where personal information is protected but the one amendment, in particular, that I had proposed was to have Section 3 be just ended with the fact that we wouldn't release personal health information and to take out the part that talks about that might possibly be identifying information. So that part we felt could come out completely because that's where you get into the ambiguity, the area that could in fact intimidate media not to ask the questions that are needed to be asked. I felt that that was very important.

The thing with this bill is you can always come back and amend it again. So if you take it out now, try to work with the concerns that have been raised by the journalists and by the professors and see whether or not there is a way around this that could be brought in later, that was really my intent, was to try to take it out for now and let's resolve it so that the

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wording is not going to, and frankly I think a strong word but to say intimidate, I think it would intimidate the media and stop them from doing investigative reporting which is very important to us.

So that was the purpose of the amendment today. There were four clauses I wanted to have changed. I understand they've been defeated by the government and supported by the Opposition but, you know, I felt it was important we look at that and now that we're here at third reading and it has already gone through the Law Amendments Committee, I should make the point that the submission we received from Fred Valance Jones arrived after the Law Amendments Committee process was finished for this bill and that is because, as is often the case, it's hard for people to know what bills are traveling through the Legislature and he said, unfortunately, he missed the opportunity to come in person but he did write a very complete report on what he felt was wrong with it and made suggested amendments as well that the Law Amendment Committee or now the Legislature could consider.

At the same time, during the Law Amendments Committee process I had the chance to sit in with some of the presenters there. I think it's important to note that on the issue of information being made available, just name and address being made available to our hospital foundations and our health foundations, like the QE II Foundation, the IWK, the Cobequid Health Foundation, Dartmouth Hospital Foundation and every other little hospital and community across the province, they have asked very loud and clear to please have that access to information, name and address only, no personal health information would be included, and also that they would have a protocol for contacting anybody who had been a patient within the health system.

[7:00 p.m.]

That protocol would mean nobody would be contacted within a number of months, so that there would be time for people to recover and be well again. Nobody would be contacted who had either a bad prognosis or had had a bad experience or had lost a loved one. There would be many, many checkpoints put in there to make sure you would only be contacting people who are in the right position to be spoken to.

We would be very sensitive to people who would have other issues or had had any bad experience in the hospital or might be sensitive about being contacted. People could opt out, if they chose right off the bat, that they did not ever want to hear from their foundation.

The reason I'm raising it again, is that the foundations spoke at the Committee on Law Amendments but at the same time so did our Freedom of Information officer. I may not be using exactly her right term, I think it's commissioner perhaps, but she spoke as well to the House and it was interesting because she didn't take a side, one way or the other, which is appropriate, but what she did say was she had contacted her counterpart in Ontario and there has never been a complaint to the Freedom of Information officer in Ontario that

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related to any information that was given to the foundations. That is a common practice in Ontario, that's allowed by their legislation. It was one of the aspects of the Ontario Act that we didn't choose to follow.

I think it is important for all members to know there were no complaints registered. I think that was a telling comment from our own officer, sort of indicating that we needn't worry. As I said, she didn't take a position but I think she was telling us it won't be controversial, it hasn't been a problem in Ontario.

With that, Mr. Speaker, I'm not going to belabour those points. I think they've been made. I know the minister has been aware of both of them. I would be happy to hear from other members of the House. Thank you.

MR. SPEAKER: The honourable member for Argyle.

HON. CHRISTOPHER D'ENTREMONT: Mr. Speaker, of course, as we get to third reading, it's our last real opportunity to make comments on a bill that's been seen before this House, before it moves on for Royal Assent and becomes the law in this province.

Very much the same kind of comments that the member for Halifax Clayton Park just made. The two issues that are still outstanding and I'm hoping maybe the minister will stand and comment to these issues for a few moments before we send it on to final assent.

The issue of the foundations was a very well-founded one. I know they had a relatively good lobby effort to try to find a way in which to be able to access, at the very least, the names and addresses of people who have visited the hospital. And, to be cognizant in a way, that they would be filtered so that there would be no medical information seen and it would be done after a certain wait period.

What happens now, of course, their concern is that there can be situations where someone who has had a negative access to a hospital system would receive one of the mail outs that would be received by one of the foundations - whether it be the IWK, CDHA, the Yarmouth hospital, the foundation, what have you. Right now there's no screening that happens and most Nova Scotians would probably surmise, because the foundation shares an office within that hospital, that they already received some of this information.

I think the bill, in its current form, is a very good bill, one that will protect privacy of patients and allow for the kind of things that we do need to do, especially when it comes to an electronic record. But I think we maybe missed an opportunity there, I'm not sure, but I think time will tell.

I think it was a $40 million amount of money that's left on the table, by not allowing the foundations to have this, but I think the foundations will persevere, they'll find ways in

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order to raise money. If I may comment quickly on that is that we do ask 25 per cent on any build project, purchase of equipment by those foundations and maybe it's time to maybe look at that contribution level. They are getting more and more expensive to buy equipment or to build hospitals and the 25 per cent is out of reach for many of the foundations in our smaller communities.

I'll leave it there and maybe the minister can comment on that. The issue of the media or the journalists being able to access information, the member for Halifax Clayton Park was quite correct but let us run a situation to understand the problem that this really creates. There's a highway accident, for example, EHS comes in, picks up the person who is injured, that person is brought into the hospital. Of course everybody knows about it because they drove by, they saw the accident and it becomes a news story, whether it be here in the metro area or whether it be down in Yarmouth. People tend to be accident watchers, I guess is what you would say, and they want to know what the outcome of that story might be, so the journalist or the media individual will make a number of phone calls.

I remember when I was part of the media, there were two phone calls I would make when something like that happened. I'd call the RCMP office and I'd call the hospital, there were two places I would call. Now, because of the way some of these things are worded and what has been presented to us by Professor Valance Jones, is the issue that it will now make it illegal for that journalist to call the hospital because if they ask the question, they're in contravention of the Act. Even worse, that should - the person who answers the phone - respond in a way providing that information, they are in contravention of the Act and therefore subject to a possible fine, so it's illegal to ask the information.

Maybe there needs to be clarification of how journalists might be able to ascertain some very basic information. I mean, if they do know the name of the person already, are they okay, what kind of situation are they in, these are some very basic questions that we hear everyday on our news. The member for Halifax Clayton Park was also correct in saying we really don't want to impede their very important part of today's government, of today's way of life so maybe just ask a question, maybe a clarification, maybe the doctor has it wrong but I think with the learned information that he has here, the amount of work that went into his proposal - unfortunately it was too late for Law Amendments - I'm hoping that maybe the minister has a bit of an answer for that.

As much as I support this bill, there are a couple of little questions left hanging and I thank the minister for bringing it forward today. Thank you very much, Mr. Speaker.

MR. SPEAKER: The motion is for third reading of Bill No. 89. Would all those in favour of the motion please say Aye. Contrary minded, Nay.

The motion is carried.

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Ordered that this bill do pass. Ordered that the title be as read by the Clerk. Ordered that the bill be engrossed.

The honourable Government House Leader.

HON. FRANK CORBETT: Mr. Speaker, would you please call Bill No. 102.


Versions of Bill 89

Submissions to the Law Amendments Committee:

Submission by AdIDEM.

Submission by Professor Fred Vallance-Jones (Awaiting permission).

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