On September 5, 2017, the Ontario Information and Privacy Commissioner issued an important and practical guidance document to assist health information custodians to comply with new privacy breach notification requirements under the Personal Health Information Protection Act ("PHIPA"): Reporting a Breach to the Privacy Commissioner - Guidelines for the Health Sector (September 2017) (the "Guideline").
Under the new requirements, which take effect on October 1, 2017, custodians must report seven categories of privacy breaches to the Commissioner. This is separate from the duty to notify affected individuals under subsection 12(2) of PHIPA in connection with the theft, loss or unauthorized use or disclosure of personal health information.
Although the Guideline is not a binding statement of the law, it provides concrete examples of the types of breaches that the Commissioner expects to be reported, and a useful roadmap for helping to ensure compliance under PHIPA's new breach reporting provisions. This bulletin summarizes key aspects of the Guideline and its implications for entities subject to PHIPA. As described below, entities subject to PHIPA must consider a number of action items emerging from the Guideline.
1. Use or disclosure without authority
This category of privacy breach includes snooping (regardless of any malice), whether by an organization's personnel, service provider or other third party. However, the Guideline states that notice to the Commissioner is not generally required if the breach is accidental, including in the following scenarios:
- information is inadvertently sent by email or courier to the wrong person, or
- a person who is permitted to access patient records accidentally accesses the wrong patient record.
This exception for accidental use or disclosure does not apply to other types of breaches noted below.
2. Stolen information
The Guideline states that this category includes common sense scenarios such as stolen laptops or other devices and stolen paper records. The Guideline also states that this category includes a ransomware or other malware attack. As there are thousands of variants of ransomware and malware with different capabilities and functionality, and many different methods by which such attacks can be perpetrated, careful consideration and forensic investigation would be required in each case to assess whether such incidents involve information theft. The Guideline states that notice to the Commissioner is not required if the stolen information was de-identified or properly encrypted. This is a welcome exception which will help encourage effective de-identification and encryption. Entities subject to PHIPA should give renewed consideration to adopting such measures. See the separate Commissioner Fact Sheet "Health-Care Requirement for Strong Encryption".
3. A breach results in further use or disclosure without authority
This category of breach arises if a privacy breach is compounded by further breaches that have occurred or will occur. For example, if unauthorized access to personal information then leads to commercial or criminal exploitation of the information, or a threat to publish the information, the breach must be reported even if it might otherwise not be required to be reported under the Guideline.
4. Pattern of similar breaches
This category is meant to capture instances in which a series of accidental or insignificant breaches may point to systemic problems such as malfunctioning equipment or systems, gaps in safeguards or training. To assist in detecting patterns, the Guideline suggests that all privacy breaches be tracked internally using a standardized approach and that the time between breaches and similarities among breaches be monitored. This direction is similar to the breach record-keeping provision which has been added to the Personal Information Protection and Electronic Documents Act ("PIPEDA"). With any record-keeping relating to breaches, however, careful consideration should be given to whether the 'breach file' may become a target in a regulatory investigation, for plaintiffs in litigation relating to breaches, in insurance underwriting (e.g. in connection with the purchase of cyber insurance), or in due diligence relating to transactions.
5. Disciplinary action (against a college member)
This category of breach will arise if a member of a college is terminated, suspended or disciplined, or he or she resigns, as a result of a privacy breach, or his or her privileges are revoked, suspended or restricted, or are relinquished or voluntarily restricted, as a result of a breach. In cases where the individual resigns or voluntarily restricts privileges, it may not be explicit that the step was taken as a result of the breach. In those scenarios, for this category to reportable, the Guideline states that the entity subject to PHIPA must "believe" that that step is related to the breach.
6. Disciplinary action against a non-college member
This category of breach arises in the same way as category 5, but as applied to employees or agents of a custodian who are not members of health regulatory colleges. The Guideline provides the following example of such a scenario: "one of your registration clerks has an unpleasant encounter with a patient and posts information about the patient on social media. You suspend the clerk for a month. Although the clerk is not a member of a college, you must report this privacy breach."
7. Significant breach
The Guideline provides that all significant breaches must be reported to the Commissioner, regardless of whether they fall into any of the above six categories. In assessing whether a breach is "significant", all relevant circumstances must be considered, including the following factors:
- Is the information sensitive?
- Does the breach involve a large volume of information?
- Does the breach involve many affected individuals?
- Was more than one custodian or agent responsible for the breach?
The Guideline notes that even where there is no particular harm, a breach may still be significant and require notice to the Commissioner. For example, the accidental disclosure of a patient's mental health assessment to other health care providers on a group email distribution list, rather than to just the patient's physician, is an instance that the Commissioner considers to be a significant breach. Other examples are included in the Guideline.
Determination of whether a breach is "significant" will require careful consideration of the circumstances and should be made in consultation with legal counsel for the custodian, to ensure that breaches are reported in appropriate cases. The threshold of a "significant" breach and the factors to be considered are similar in some respects to the threshold under Alberta's Personal Information Protection Act, and those that have subsequently been incorporated into PIPEDA; accordingly, it is possible that some guidance may be gleaned from privacy commissioner decisions issued under those regimes.
In addition to the new breach notification requirements, PHIPA will impose annual breach reporting requirements. On January 1, 2018, custodians must begin compiling privacy breach statistics and, beginning in 2019, custodians must provide the Commissioner with an annual report of the previous calendar year's privacy breach statistics. The report is to include the number of times in the previous calendar year that personal information was stolen, lost, used without authority, or disclosed without authority (with the report indicating specific numbers for each type of breach). Further guidance from the Commissioner on statistical reporting will be released in fall of 2017.
These new breach notification requirements will present new challenges for health care providers. In light of the impending provisions, and the Guideline, custodians should be finalizing their preparations to meet these new requirements. In particular, custodians should be deploying internal policies and procedures to adequately detect, escalate and respond to privacy breaches.
This includes an incident response plan, which requires:
- prior training for employees and agents regarding the need to escalate and report all suspected breaches to legal counsel and relevant privacy personnel who can then make a determination as to who needs to be notified and whether a report to the Commissioner must be made; and
- consideration of legal privilege and the involvement of legal counsel in connection with privacy breaches and incident investigations, to preserve confidentiality and an appropriate space for a proper investigation and analysis of applicable legal obligations.
As with privacy breaches in other contexts, there is a considerable risk that the investigation in response to a health privacy incident could become a target in privacy breach litigation or class action proceedings, regulatory investigations and/or freedom of information requests.