Bill 104 2010

An Act to amend the Personal Health Information Protection Act, 2004 respecting access to personal health information, security of personal health information and informed consent

Note: This Act amends the Personal Health Information Protection Act, 2004.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History on www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  (1)  Section 3 of the Personal Health Information Protection Act, 2004 is amended by adding the following subsection:

Transfer of records

   (11.1)  If a health information custodian mentioned in paragraph 1 of the definition of "health information custodian" in subsection (1) ceases to provide health care or assistance in providing health care to an individual, the health information custodian shall, if directed to do so by the individual, take steps that are reasonable in the circumstances to ensure that,

  (a)  the records of personal health information about the individual are transferred to another person who is legally authorized to hold the records; or

  (b)  a copy of the records of personal health information about the individual is given to the individual.

   (2)  Section 3 of the Act is amended by adding the following subsection:

Transfer of records, death of custodian

   (13)  If a health information custodian mentioned in paragraph 1 of the definition of "health information custodian" in subsection (1) dies, the estate trustee of the deceased custodian or the person who has assumed responsibility for the administration of the deceased custodian's estate under subsection (12) shall take steps that are reasonable in the circumstances to ensure that, 

  (a)  any records of personal health information about an individual held by the deceased custodian are transferred to another person who is legally authorized to hold the records, if directed to do so by the individual; or

  (b)  a copy of the records of personal health information about an individual is given to the individual.

   2.  The Act is amended by adding the following section:

Property of the individual

   5.1  Personal health information that is in the custody or control of a health information custodian is the property of the individual to whom the information relates.

   3.  The Act is amended by adding the following section:

Electronic information secure

   12.1  A health information custodian shall take steps that are reasonable in the circumstances to ensure that personal health information in the custodian's custody or control that is stored on a mobile electronic device or disclosed by electronic means is collected, used and disclosed in a secure electronic format that renders the information unusable, unreadable or indecipherable to unauthorized individuals.

   4.  (1)  Clause 18 (1) (b) of the Act is amended by striking out "knowledgeable" at the end and substituting "informed".

   (2)  Subsection 18 (5) of the Act is repealed and the following substituted:

Informed consent

   (5)  A consent to the collection, use or disclosure of personal health information about an individual is informed if the individual who gives the consent is provided with the information that a reasonable person in the same circumstances would require in order to make a decision about the collection, use or disclosure of personal health information.

Information required

   (5.1)  The information mentioned in subsection (5) that a reasonable person would require to give consent in respect of the collection, use or disclosure, as the case may be, includes,

  (a)  that the individual may give or withhold consent;

  (b)  the identity of the person who will collect, use or disclose the information;

   (c)  the purpose of the collection, use or disclosure;

  (d)  the specific nature and extent of the information to be collected, used or disclosed;

  (e)  the reasonably foreseeable consequences of giving or withholding consent to the collection, use or disclosure;

    (f)  the date on which the consent would be effective; and

  (g)  the date, if any, on which the consent would expire.

   5.  Section 35 of the Act is repealed and the following substituted:

Fees prohibited

   35.  A health information custodian shall not charge a person a fee for collecting, using or disclosing personal health information.

   6.  Subsections 54 (10), (11) and (12) of the Act are repealed.

Commencement

   7.  This Act comes into force six months after the day it receives Royal Assent.

Short title

   8.  The short title of this Act is the Access to Personal Health Information Act, 2010.

EXPLANATORY NOTE

The Bill amends the Personal Health Information Protection Act, 2004 to provide for the transfer of records from a health information custodian to a successor custodian or the individual to whom the information relates, if the individual's relationship with the original health information custodian is terminated.  The Bill also ensures that no fees are charged for the collection, use or disclosure of personal health information.

The Bill amends clause 18 (1) (b) of the Act to provide that consent of an individual for the collection, use or disclosure of personal health information by a health information custodian must be informed rather than knowledgeable.  It also establishes the requirement that electronic personal health information that is stored on a mobile device or disclosed electronically be stored or disclosed in a secure electronic format.