Ont. Super. Ct. finds that the terms of a consent form for a s. 44 SABS assessment must be agreed to by the parties and cannot be imposed by the insurer

In Intact Insurance Company v. Beaudry, Ontario Superior Court Justice Beaudoin held that absent a prescribed form, or a standard form that may be devloped by the various stakeholders, the insurer and insured must agree on the consent form for assessments by healthcare practitioners under s. 44 of the SABS before they can be conducted.

More:

http://www.hughesamys.com/blawg/blawg-post/blog/2016/10/19/ont.-super.-ct.-finds-that-the-terms-of-a-consent-form-for-a-s.-44-sabs-assessment-must-be-agreed-to-by-the-parties-and-cannot-be-imposed-by-the-insurer

Is it the right time for a hidden disability symbol?

March 26, 2015 ~ Brain Injury Blog TORONTO

BY: RICHARD HASKELL

“You seem fine to me,” may be one of the worst things to say to a brain injury survivor – or anyone with a hidden disability – for that matter. This invisibility is one reason why Laura Brydges, an Ottawa woman living with the affects of brain injury, decided she need to do something to make hidden disabilities, visible. (You may have caught the recent Toronto Star article about her from a few weeks back.)

LAURA BRYDGES; PHOTO CREDIT: RG WHITE

Since that article, Brydges’ Hidden Disability Facebook page has hit 5.2K likes. She’s getting attention from organizations, individuals and media from all over North America and the U.K. But a really big moment was receiving a photo of someone from the U.S. using one of her cards.

“I have been overwhelmed. I can’t even describe the emotion,” Brydges said. Seeing that photo just touched me to the core, it made it real.”

Brydges stresses that making hidden disabilities visible is a safety issue.

She lists incidents where not understanding hidden disability can have deadly results. There was a child with autism in the U.S., she says, who was shot by the police. In Ottawa, there was a child in school who has handcuffed because of misunderstanding a hidden disability. In Winnipeg, there was a veteran with PTSD who was physically kicked out of a bar because he had a therapy dog. Brydges finds these stories and posts them on her Facebook page, collecting articles which prove  her point, time and time again.

Like many brain injury survivors, Brydges faces significant obstacles in her daily life, most of which are hidden. She has problems concentrating and has a low tolerance for noise or bright lights. She cannot drive or use public transit. Being in a large crowd for more than a short time can cause her to panic, sometimes to the point of tears.

Especially in the years right after her accident, Brydges says she couldn’t trust herself to be able to respond to an unexpected situation. For example, if someone on the street was having an emergency, she would have difficulty in processing information, to, for example, call 911. A frustrated first aid responder trying to enlist her help, repeating the message to her faster and louder to her would only make it worse.

Which is why, using nothing more than an interest in desktop publishing and sheer determination, Brydges designed a symbol consisting of a blue and white figure inside a circle with the words Hidden Disability on wallet-sized cards.

THE HIDDEN DISABILITY SYMBOL

Similar to the international symbol of accessibility for those with physical disabilities, the card is something Brydges feels could be used by those affected by hidden disabilities such as brain injury, autism or epilepsy. She calls it ‘a self-advocacy tool’ people with hidden disabilities can use to educate the public on the obstacles they face every day.

Brydges  began working on her hidden disability symbol in 2009. A year later, through Facebook, she found 592 adults to participate in an online survey about whether there was a need for a hidden disability symbol. The result:  80 per cent of the participants (the majority of whom had a hidden disability) agreed an international symbol was needed. A few years later, Brydges asked for feeback on how to develop the symbol, which orginally was a checked figure. She changed that design after learning some people had difficulty processing it.

HIDDEN DISABILITY OPTIONS PRESENTED IN THE SURVEY

Brydges believes there’s a need for a hidden disability symbol, and the time is right for it. “I think people with hidden disabilities are ready. They’re tired of either living very small lives and not explaining themselves or having to explain themselves over and over again when they go out,” Brydges said. “They’re tired of people treating them poorly to the point of verbal abuse and sometimes to the point of physical abuse when they park in an accessible parking spot. Even though they have a permit. I think it’s just time.”

The hidden disability symbol could be her design or someone else’s, Brdyges is all about the cause, and willing to let word about the symbol spread organically. She’s made the symbol available for download, with some stipulations, and is working on improving its print quality. The front of the cards can have the name of the condition on the bottom and the back can be customized to meet specific needs of each condition.

Brydges also believes organizations which serve people with hidden disabilities have to work together. “We’re stuck in this model of ‘I have this condition’ and ‘you have that condition’ instead of ‘when we’re out, these are the common problems with environments that aren’t highly conducive to our functioning,” she said.

Inspired? Brydges thinks Hidden Disability awareness would spread even further if she could get on The Ellen Degeneres Show. You can help make that happen by filling out this online form here.

 

 

Source: http://torontobraininjuryblog.com/2015/03/26/is-it-the-right-time-for-a-hidden-disability-symbol/

Patients can sue hospitals for invasion of privacy, appeal court rules

The ruling upheld an earlier decision that said the province’s health privacy laws do not bar patients from seeking legal action against hospitals if their privacy is breached.

By: Olivia Carville Staff Reporter, Published on Wed Feb 18 2015
 

In a potentially precedent-setting decision, the Ontario Court of Appeal granted patients the right to sue hospitals over privacy breaches Wednesday.

The unanimous ruling said provincial health privacy laws are not a roadblock to patients who want to seek justice in the courts when their medical records are snooped into by hospital workers.

The decision comes on the heel of aStar investigation into health-related privacy violations and oversights in Ontario’s health privacy legislation.

“This case is a vindication for all of those victims the Star has been writing about,” said Michael Crystal, lawyer for the patients.

Wednesday’s ruling could have sweeping implications for the province’s 155 hospitals as it has given the green light to a multimillion-dollar privacy class action launched against Peterborough Regional Health Centre.

Peterborough hospital would not answer questions from the Star about whether it intends to appeal the ruling to the Supreme Court of Canada, its last chance to get the case tossed out.

A massive privacy breach at the hospital between 2011 and 2012 saw hundreds of patient medical records snooped into and seven staff members fired. The breach included a domestic violence victim who was in hiding and 414 abortion files that were inappropriately accessed by a high profile anti-abortion campaigner.

A group of affected patients launched a $5.6-million privacy class action against the hospital, which in turn fought to have the case thrown out in the Ontario Superior Court of Justice, arguing the courts had no jurisdiction over health-related privacy breaches.

The crux of the hospital’s argument was that health privacy violations were the sole domain of the privacy commissioner and that the Personal Health Information Protection Act (PHIPA) ousts the jurisdiction of the courts.

The Superior Court ruled against the hospital so it took the fight up to the Court of Appeal, which dismissed the case Wednesday.

In its decision, the appeal court said health privacy legislation does not exclude the jurisdiction of the courts. Health privacy laws were tailored to handle “systemic issues rather than individual complaints,” the court said.

Peterborough Regional Health Centre declined to comment on the decision, saying “this matter remains in litigation before the courts.”

In a written statement to the Star Wednesday, a Peterborough hospital spokesperson said the center had a “zero tolerance policy with respect to inappropriate access to medical records.”

The hospital has 60 days to appeal the decision to the Supreme Court of Canada.

Acting Information and Privacy Commissioner Brian Beamish told the Star he was “very pleased” with the ruling.

All patients who are victims of privacy violations should have the option of filing a complaint to the privacy office or taking civil action, Beamish said.

Under PHIPA, the privacy commissioner’s office acts as a watchdog over health institutions, ensuring they are protecting patient information and abiding with privacy laws.

It is not up to the privacy commissioner, however, to determine whether a patient should be awarded monetary damages. The commissioner only has the power to recommend the Attorney General launch a prosecution under PHIPA, which allows for fining individuals up to $50,000 and institutions up to $250,000 if found guilty.

Only one prosecution has been lodged so far under the act, which was introduced in 2004.

“This was a really important issue to get judicial guidance on,” Beamish said.

Ontario, once a leader in health-information privacy laws, now seems to be lagging behind as other provinces tighten up reporting. Earlier this year the Star found that eight other jurisdictions have passed laws to force hospitals to report breaches to the appropriate privacy body.

The heart of the Peterborough case is “snooping” — where hospital staff willfully break the law by accessing medical records when they have no authority to do so, such as in the recent Rob Ford privacy violations, he said.

Health care workers can only access a patient’s medical record if they are involved in their care and, Beamish said, the Peterborough breach “highlights how seriously this issue of snooping needs to be taken.”

The lead plaintiff of the Peterborough case is Erkenraadje Wensvoort, who was in hiding when she had an operation at the hospital. In the statement of claim, she alleges that she had left an abusive relationship after 51 years of marriage.

Wensvoort says she was told a staff member had opened her file without authorization and she feared her allegedly abusive ex-husband had “paid someone to access her patient records in order to find her,” the decision read.

There is no evidence linking Wesnvoort’s ex-husband to the inappropriate access of her record, according to Crystal, her lawyer.

The court awarded Wensvoort $24,000 for the legal fees associated with the appeal.

Crystal, who is the lawyer for all the Peterborough patients, said the court’s ruling grants patients “access to justice.”

“The highest court in Ontario has spoken and said invasion of personal health information is not something that is simply the domain of the privacy commissioner,” he said.

“Patients do not have to go through the administrative nooks and crannies of PHIPA legislation to achieve access to justice.”

If the latest decision is not appealed by the hospital, Crystal said the next step would be setting dates for a motion of certification for the Peterborough case.

Privacy commissioners from other parts of Canada told the Star earlier this year that they have noted a rising trend of health-care professionals snooping into private medical records with malicious intent.

Source: http://www.thestar.com/life/health_wellness/2015/02/18/patients-can-sue-hospitals-for-invasion-of-privacy-appeal-court-rules.html

Hundreds of hospital privacy violations go unreported

Privacy Commissioner Brian Beamish calls for changes in law to require hospitals to reveal breaches to his office.

Vince Talotta / Toronto Star Order this photo

 

Brian Beamish, Ontario's acting privacy commissioner, is calling for changes in legislation to make it harder for hospitals to handle privacy breaches internally without reporting them to the privacy office. 

By: Olivia Carville Staff Reporter, Published on Tue Jan 13 2015

 

Five staff members snooped into the medical records of 22 patients at the Centre for Addiction and Mental Health last year.

A clinician from St. Michael’s Hospital posted an inappropriate comment on Facebook about a patient’s behaviour during a healthcare procedure.

While standing in line for pizza, a Toronto East General Hospital doctor chatted on his cellphone about the private details of a patient, unaware the patient’s relative was in the same line.

These are just three examples among what may be thousands of serious health-related privacy violations that go unreported each year to the provincial Information and Privacy Commissioner.

Nearly all of the 218 privacy breaches uncovered in documents obtained by the Star — which occurred at just eight of Toronto’s biggest health institutions — were not reported because of a legislative loophole that allows hospitals to handle such violations internally.

When the Star provided some examples of unreported cases to acting privacy commissioner Brian Beamish, he called for a legislative change to force hospitals to report serious breaches of personal health information.

“I definitely think it’s worth looking at. People are very protective of their health information, and when this type of thing happens it’s a very personal intrusion — people feel violated,” Beamish said.

Michael Crystal, a lawyer currently representing thousands of patients in five major privacy class actions against Ontario hospitals, backed the commissioner’s call for legislative change.

“This is a very, very significant problem that is common in many Ontario hospitals,” he said.

Privacy breaches can range from loose lips in the coffee line to more odious examples, where hospital employees maliciously access sensitive medical information relating to abortions, suicide attempts or queries into sexual re-assignment surgery, Crystal said.

Some of Crystal’s clients have been “devastated” to learn that their records were inappropriately accessed, he said.

One patient was in hiding from her abusive husband and believed he had bribed a hospital employee to access her personal information and learn which shelter she was staying in. Some of Crystal’s clients have even been reluctant to return to the hospital for much-needed care after being told that staff members had looked at their records without authorization.

Crystal said it should be “mandatory for hospitals to report all privacy leaks,” especially as the aging population grows more dependent upon healthcare providers.

Under the Personal Health Information Protection Act (PHIPA) hospitals may handle privacy violations internally, including disciplining and sometimes sacking staff members, without alerting the commission.

The three serious privacy breaches listed above all resulted in disciplinary action. Four of the snooping staff members from CAMH were suspended without pay, the documents show. A fifth received a disciplinary letter.

If hospitals were obligated under law to report privacy violations, the commission would be able to identify trends, investigate specific areas of concern and help hospitals prevent future incidents, Beamish said.

There are 155 hospitals in Ontario, and every year the commission receives roughly 400 notifications of health-related privacy breaches.

The Star’s request under the Freedom of Information Act unveiled 218 violations in just eight Toronto institutions, so “the math tells you [the number of unreported violations] is going to be in the thousands,” Beamish said.

Last year, the Star unveiled two major hospital privacy breach cases involving thousands of patients. In one case, hospitals inappropriately provided patient information to baby photographers. In another, hospitals were handing out patient contact information to RESP marketers. The commission was notified of both of these privacy breaches, probably because they affected thousands of patients and because the hospitals were seeking guidance as to how to respond, Beamish said.

A St. Michael’s Hospital spokesperson said in the Facebook incident, the commission wasn’t notified because “we consult with the privacy commissioner’s office as guidance is required … or to ensure we are in continuing compliance with the law.” The hospital didn’t feel it needed such advice in this case.

In the documents obtained by the Star, Sunnybrook Health Sciences Centre reported 27 privacy breaches where patient information was either stolen, lost, provided to the wrong people or disclosed without consent — and it notified the commission of none.

In one case, an employee disclosed a patient’s prognosis to the person’s estranged children, without consent, and in another the parents of an infant arrived at the neonatal intensive care unit carrying a different baby’s medical report.

Toronto East General Hospital reported 16 privacy violations whereby personal health information was inappropriately accessed or shared without consent. It notified the commission on only two occasions.

The hospital’s unreported incidents included the clinician who discussed a patient’s treatment options while waiting for pizza, an employee who asked a colleague to access the records of a friend, and a staff member who called the wrong family to tell them to come to the hospital to say goodbye to a “declining patient.”

A Star review found the majority of the 218 hospital privacy breaches were the result of genuine human error, but one in five cases were intentional and resulted in serious disciplinary action, the documents show.

Beamish said such violations, where clinicians “knew they shouldn’t be doing what they were doing and they still went ahead and did it anyway,” were the worst.

He was aware of one “love triangle” case where a nurse accessed the medical records of her ex-boyfriend’s new partner, and others where health professionals accessed colleagues’ and neighbours’ records out of curiosity.

Two similar, high-profile examples are that of former mayor Rob Ford, whose medical records were improperly read by hospital staff after his shocking cancer diagnosis, and the dozen staff members at Brampton Civic Hospital who were caught prying into the medical file of a 20-year-old man who committed suicide under hospital care.

Beamish fears that if such breaches aren’t contained, the public might lose confidence in the health sector’s ability to protect confidential information in the future.

This could lead to patients withholding information from doctors and hinder public acceptance of a shift toward electronic health records.

Online health records could be very beneficial to patients, but “people need to have confidence in the system,” he said.

Medical records are “incredibly personal” and hospitals should give as much prominence to protecting privacy as they do to hygiene campaigns, Beamish said.

“You can see a lot of signs and posters about making sure you wash your hands in hospitals, but they should take that same approach for privacy,” he said.

The University Health Network (UHN), which is responsible for four major hospitals in Toronto, reported 132 privacy incidents in 2014.

These included giving patients wristbands with the wrong identification, a staff member leaving a “detailed” message for a patient on the wrong voicemail, and the posting of two images to UHN’s public Facebook album containing patient names and medical record numbers.

Other examples:

UHN called a funeral home to ask them to search the morgue for a deceased patient’s misplaced medical chart

A clinical trial investigator unintentionally hit “reply all” on a confidential email, sending it to non-hospital staff

A staff member disclosed the date and time of a hospital appointment to the patient’s employer.

Health-related privacy violations are governed under PHIPA, legislation that allows for fining individuals up to $50,000 and institutions up to $250,000 if found guilty.

Only one prosecution has been logged so far under the act, which was introduced in 2004, and last year Beamish told the Star he wanted serious breaches to result in more prosecutions to deter nosy health professionals.

Since then, the commission has met with the Ministry of Health and Long Term Care to discuss the issue and work out who is responsible for “getting the prosecutions going,” Beamish said.

He hopes to have a prosecution plan in place within the next few months.

Minister of Health and Long Term Care Dr. Eric Hoskins said last year’s election stalled the government’s attempt to pass the Electronic Personal Health Information Act, legislation that would further safeguard patient information.

“We promised during that election to reintroduce the bill, and we’ll be doing just that,” he told the Star via email.

The new legislation would provide considerable opportunities to strengthen privacy protection over health records.

“Even one privacy breach is too many, and we will continue to work across the health sector to ensure that the personal health information of Ontarians is protected,” Hoskins said.

Olivia Carville can be reached at ocarville@thestar.ca 


Source: http://www.thestar.com/life/health_wellness/2015/01/13/hundreds_of_hospital_privacy_violations_go_unreported.html#