Commencing August 31, 2018, Alberta’s Health Information Act (the “HIA”) will require custodians of personal health information to give notice of any health information security breach that presents a risk of harm to an individual. The security breach obligations under the HIA join an increasing number of Canadian statutory regimes that impose information security breach reporting and notification obligations. Custodians subject to the HIA should assess their readiness to comply with the security breach obligations, and make appropriate changes to prepare for compliance.
Background
The HIA regulates the collection, use and disclosure of health information that is in the custody, or under the control, of a “custodian” (including an ambulance or nursing home operator, a provincial health board, a regional health authority or a community health council) or an “affiliate” of a custodian (including an individual employed by, or performing services for, a custodian or a health service provider who admits and treats patients at a designated hospital) in Alberta.
In 2014, the Statutes Amendment Act, 2014 amended the HIA to introduce security breach notification obligations. In May 2018, the Government of Alberta issued an Order in Council to bring those obligations into force on August 31, 2018. The Government of Alberta also published the Health Information Amendment Regulation to provide details of the breach notification obligations.
The Breach Notification Obligations
Following is a summary of the breach notification obligations as set out in the HIA and its Health Information Regulation.
- Custodians’ Duty to Notify
- Loss, Unauthorized Access/Disclosure and Risk of Harm
- whether information has or may be accessed by or disclosed to a person;
- whether the information has or may be misused, including for identity theft or fraud;
- whether the information could cause embarrassment or harm (physical, mental, financial or reputational) to the affected individual;
- whether the incident has, or will, adversely affect the provision of a health service to the individual; and
- whether there are any circumstances that mitigate the potential for a risk of harm to arise, including: whether the information was sufficiently encrypted or secured in another electronic format; whether the information was destroyed or rendered inaccessible or unintelligible; whether the information was not accessed prior to recovery; or whether the information was erroneously accessed or received by a qualified custodian/affiliate in the course of their duties for a proper purpose who promptly addressed the unauthorized access or disclosure.
- Notice to the Commissioner
- Notice to the Minister
- Notice to the Individual
- Affiliates’ Notification Obligations
- Enforcement
If a custodian suffers a “loss of individually identifying health information or any unauthorized access to or disclosure of individually identifying health information in the custody or control of the custodian” that results in a “risk of harm” to an individual as a result of the loss or unauthorized access or disclosure, then the custodian must provide notice “as soon as practicable” to: the Information and Privacy Commissioner of Alberta; the Alberta Minister of Health; and the individual who is the subject of the individually identifying health information.
The HIA does not define “loss”, “unauthorized access” or “unauthorized disclosure” of health information. Similarly, the HIA does not define “risk of harm”. Instead, the HIA provides that a custodian must consider all relevant factors, including factors prescribed regulations, in assessing whether there is a risk of harm to an individual. The factors listed in the regulations include:
If the custodian is able to demonstrate that the health information was not improperly accessed or used, based on the factors specified in the regulations, then the custodian is not required to provide notice to the Commissioner, Minister or individual.
A custodian’s notice to the Privacy Commissioner of Alberta must be made in writing in a form approved by the Commissioner and include prescribed, detailed information regarding the incident, the health information involved, the individuals affected, the number of individuals affected and the risk of harm to those individuals, the steps taken to reduce the risk of harm and future similar incidents, and the form of notification to affected individuals.
A custodian’s notice to the Alberta Minister of Health must be made in writing in a form approved by the Minister and include prescribed, detailed information regarding the incident, the health information involved, the individuals affected, the number of individuals affected and the risk of harm to those individuals, the steps taken to reduce the risk of harm and future similar incidents, and the form of notification to affected individuals.
A custodian’s notice to the individual who is the subject of the individually identifying health information must be made in writing and include prescribed, detailed information regarding the incident, the health information involved, the risk of harm to the individual, the steps taken to reduce the risk of harm, the steps the individual might take to reduce the risk of harm, and a statement that the individual may ask the Commissioner to investigate the incident and contact information for the Office of the Information and Privacy Commissioner of Alberta. If a custodian considers that giving notice to an affected individual could reasonably be expected to result in a risk of harm to the individual’s mental or physical health, then the custodian may decide not to give notice to the individual, and in those circumstances the custodian must give notice to the Commissioner and explain the reasons for not giving notice to the individual.
An affiliate of a custodian (e.g. an individual employed by or performing services for a custodian or a health service provider who admits and treats patients at designated hospitals) must notify the custodian “as soon as practicable” following any “loss of individually identifying health information or any unauthorized access to or disclosure of individually identifying health information in the custody or control of the custodian”. Unlike a custodian’s notification obligations, there is no threshold “risk of harm” assessment for an affiliate’s duty to notify a custodian following a loss of or unauthorized access to or disclosure of individually identifying health information in the custody or control of the custodian.
An affiliate’s notice to a custodian must be made in the form established by the custodian. If the custodian has not established any requirements for the form of notice, the notice must be made in writing and include prescribed, detailed information regarding the incident.
A custodian’s failure to take reasonable steps “to maintain administrative, technical and physical safeguards” to protect against any “reasonably anticipated threat or hazard to the security or integrity” of health information or to comply with its breach notification obligations is an offence for which the custodian may be fined up to $50,000. Similarly, an affiliate’s failure to comply with its breach notification obligations is an offence for which the affiliate may be fined up to $50,000.
Other Statutory Breach Notification and Reporting Obligations
The HIA joins a growing list of personal information protection and personal health information protection statutes nationwide that impose breach notification and reporting obligations. For example:
- Ontario Personal Health Information Protection Act
The Ontario Health Information Protection Act requires a health information custodian to notify an individual “at the first reasonable opportunity” if personal health information about the individual that is in the custody or control of the health information custodian is stolen, lost or used or disclosed without authority. The notice must contain a statement that the affected individual has the right to make a complaint regarding the breach to the Information and Privacy Commissioner of Ontario. A health information custodian must also notify the Commissioner in various circumstances.
- New Brunswick Personal Information Privacy and Access Act
The New Brunswick Personal Health Information Privacy and Access Act requires a health information custodian to notify the Commissioner and affected individuals if personal health information is stolen, lost, disposed of in a manner not permitted by legislation or disclosed to or accessed by an unauthorized person, unless the custodian reasonably believes that the theft, loss, disposition, disclosure or access of personal health information will not lead to the identification of the affected individual and will not have an adverse impact on the provision of health care or other benefits to the affected individual or on the affected individual’s mental, physical, economic or social well-being.
- Newfoundland Personal Health Information Act
The Newfoundland Personal Health Information Act requires a health information custodian to notify an affected individual at the first reasonable opportunity if the individual’s health information is stolen, lost, disposed of in a manner not permitted by legislation or disclosed to or accessed by an unauthorized person, unless the custodian reasonably believes that the theft, loss, unauthorized disposition or improper disclosure of the health information will not have an adverse impact on the provision of health care or other benefits to the affected individual, or the mental, physical, economic or social well-being of the affected individual. In addition, a custodian must notify the Information and Privacy Commissioner if the custodian reasonably believes that there has been a “material breach”, based on consideration of prescribed circumstances, involving the unauthorized collection, use or disclosure of personal health information.
- Nova Scotia Personal Health Information Act
The Nova Scotia Personal Health Information Act requires a health information custodian to notify an affected individual at the first reasonable opportunity if the custodian reasonably believes that: (a) the individual’s health information has been stolen, lost or subject to unauthorized access, use, disclosure, copying or modification; and (b) there is potential for harm or embarrassment to the individual. Notification to an individual is not required where the custodian reasonably determines that: (a) it is unlikely that a breach of the personal health information has occurred; or (b) there is no potential for harm or embarrassment to the individual as a result, provided that the custodian notifies the Privacy Review Officer as soon as possible of the custodian’s determination.
- Alberta PIPA
The Alberta Personal Information Protection Act ("PIPA") provides that an organization that has personal information under its control must, without unreasonable delay, give notice to the Information and Privacy Commissioner of Alberta of any incident involving the loss of, or unauthorized access to, or disclosure of, personal information if a reasonable person would consider the incident to present a “real risk of significant harm” to the affected individual. PIPA does not define “significant harm”, but the Commissioner’s Mandatory Breach Reporting Tool suggests that the circumstances relevant to determining a real risk of significant harm under PIPEDA (discussed below) should be used in the assessment of whether a real risk of significant harm exists.
- Federal PIPEDA
Commencing November 1, 2018, the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”) will require an organization that suffers a “breach of security safeguards” involving personal information under its control to keep prescribed records of the breach and, if the breach presents a “real risk of significant harm to an individual", to promptly report the breach to the Privacy Commissioner of Canada and give notice of the breach to affected individuals and certain other organizations and government institutions. PIPEDA defines “significant harm” as including “bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property”. PIPEDA provides that the circumstances relevant to determining whether a breach of security safeguards creates a real risk of significant harm include: (a) the sensitivity of the personal information involved in the breach; (b) the probability that the personal information has been, is being or will be misused; and (c) other prescribed factors (none of which are currently prescribed).
- British Columbia and Québec
The British Columbia and Québec personal information protection statutes currently do not impose breach reporting obligations, but the B.C. and Québec Privacy Commissioners have recommended that their respective statutes be amended to add those obligations. The B.C. and Québec Privacy Commissioners have also issued data incident response guidance that includes giving notice to affected individuals, the Privacy Commissioners and other organizations.