The Canadian Medical Association (CMA) is pleased to make submissions on Bill S-4. CMA has followed the history of PIPEDA and participated in the studies of various Standing Committees, most notably and recently in 2007 to the House of Commons Standing Committee on Access to Information, Privacy and Ethics. CMA is pleased that amendments to PIPEDA are once again being considered.
The Canadian Medical Association represents over 80,000 physicians in Canada. Privacy is an important value to physicians and the patients to whom they serve. This is reflected in our Code of Ethics and policies, in particular, Principles for the Protection of Patients' Personal Health Information and Statement of Principles: The Sale and Use of Data on Individual Physicians' Prescribing. Physicians are also required to abide by privacy and confidentiality standards of practice. Thus, the CMA has a strong interest and valuable insights into the topic of personal information and privacy with respect to health information.
We thank the Standing Committee for the opportunity to comment on the proposed amendments to PIPEDA. Our key comments are outlined below:
CMA supports the existing legislative framework on the collection, use and disclosure of personal information produced by an individual in the course of their employment, business or profession ("work product") and suggests further amendments focus on strengthening it further.
CMA supports the current standing of work products, that work products are considered to be personal information. That is, we support the framework defining personal information as information about an identifiable individual and that there is no carved out definition or exemption for "work product".
CMA supports the position of the Office of Privacy Commissioner's following its 2007 investigation on work products, that they should not be exempted for two main reasons:
* The exemption is not needed, and it would be inconsistent with the balanced approach in the current definition of personal information. The current definition of personal information and the approach to deciding issues based on that definition have worked well. They have promoted a level of privacy protection that balances the right of privacy in personal information with the needs of organizations for the reasonable and appropriate collection, use and disclosure of personal information. ...Because the concept of "work product" is ambiguous, excluding it from the definition of personal information could have unpredictable consequences that would diminish privacy unnecessarily.
It is the CMA's position that work products should be considered personal information and given the section 7 amendments, work products should only be collected, used or disclosed without consent only if it is consistent with the purposes for which the information was produced.
In the case of physicians, a prime example of a physician's work product is prescribing information. Prescribing information is a synthesis of assessing patients - by probing into their health, familial, social and sometimes financial background - infused with medical knowledge, skill and competencies resulting in a diagnosis and treatment plan, which often includes prescribing a medication or test. Not only is the physician's prescribing information a product of physicians' work but would not exist but for a trusting physician-patient relationship wherein the patient's private and personal information are shared under circumstances of vulnerability and trust. The outcome is that this is personal information. Prescribing information is about an individual: it includes the name of the patient, the name of the prescribing physician, and the drug name, dosage, amount and frequency; giving major clues as to what the patient's health issue(s) are.
For further clarity, however, CMA recommends that physician information, and physician work products, should be specifically recognized within the legislation as personal information. To this end, we would propose that the following addition be made to the definition section under personal health information:
Section 2.(1) "personal health information", with respect to an individual, whether living or deceased, means .....(d) information that is collected or is the outcome of collecting information in the course of providing health services to the individual;
CMA supports the amendments to subsections 7(1)-(3) of the Act that any subsequent collection, use and disclosure of work products without consent must be related to the original purpose (of collection, use and disclosure). This relationship reflects the government's understanding and faithfulness to privacy principles. This is particularly critical when dealing with health information, and is even more critical in today's world given the ease of linking information through advancements in technology. In the absence of a causal relationship, personal information should not be used for system performance, commercial enterprise, data brokering, research, assessment or other purposes.
CMA recommends that the legislation should go further and allow persons who believe that protection cannot be afforded under the legislation that they have the authority to refuse to communicate the information. This is the conceptual approach taken in Quebec's Act Respecting the Protection of Personal Information in the Private Sector wherein persons have an opportunity to refuse that professional information (as defined therein) be used for commercial purposes. Physicians are constantly writing prescriptions and such information should only be used for other purposes in the interests of patients and the health care system, and not to serve commercial interests or marketing strategies. If physicians do not feel that such protection is afforded patients, then they should be permitted to refuse that such information be collected, used or disclosed. Patient privacy should be primary.
And finally, addressing work products in legislation clears up past differences of interpretation by Privacy Commissioners thus, providing certainty and clarity to the public.
That Section 2. (1) "personal health information", be amended to read as follows: "personal health information", with respect to an individual, whether living or deceased, means .....(d) information that is collected or is the outcome of collecting information in the course of providing health services to the individual;
CMA is pleased to see a section on breaches of security safeguards and recommends greater specificity.
As noted above, physicians have responsibilities as data stewards and custodians of health information. As such, CMA supports breach notification measures that would enhance and protect patient privacy. In principle, we support the proposed amendments of breach disclosures to the Privacy Commissioner, to individuals and to organizations.
However, CMA is concerned that meeting the requirements may be confusing. For example, in the health care context, it is easy to surmise that all health information is "sensitive". A far more difficult matter is determining whether the risk reaches the threshold of "significant harm" and the "probability" that the information "will be misused". The result being that incidental disclosures will be reported causing unnecessary concern and confusion in the patient population. Further specificity is recommended and we suggest something akin to Ontario's Personal Health Information Protection Act, 2004 (PHIPA).
The PHIPA is an act specifically dealing with personal health information. One of its purposes is "to establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care" (section 1a ). The PHIPA notification provision states that the individual shall be notified "...at the first reasonable opportunity if the information is stolen, lost or accessed by unauthorized persons", [section 12(2)]. CMA is unaware of any concerns with this approach.
The language of PIPIEDA is one of reasonable belief of real risk of significant harm to an individual. The issue is the test for required notification of patients for incidental inadvertent breaches and decreasing "notification fatigue". To illustrate the issue, if physicians were told today that patient data could be retrieved from the drums of discarded photocopiers and printers, it would be inappropriate for legislation to suggest that the entire patient population during the life of the photocopier or printer be notified. To this end, we recommend that there be acknowledgement that in some circumstances notification may not be required. The probability of misuse under PIPEDA is more ambiguous than the PHIPA test. Under PHIPA, the approach is more objective in that the data must be stolen, lost or accessed by unauthorized persons. To our knowledge, the Ontario model has been in place for almost a decade with no significant issues and thus we submit is one that works.
In other jurisdictions (eg., Newfoundland and Labrador, Nova Scotia, New Brunswick) with health privacy legislation, there is acknowledgement of trying to balance notification and those breaches unlikely to result in harm by directly indicating when notification is not required.
CMA recommends that the statute move towards a more objective test and acknowledge that there are situations when notice is not required.
CMA supports disclosure without consent under limited circumstances, but finds the current list of disclosures overly inclusive.
Health information is considered highly sensitive information and is initially collected for the purpose of individual patient health care. It should only be disclosed with consent and in only some exceptions without consent. The PIPEDA amendments for disclosure without consent have been broadened.
Privacy, confidentiality and trust are the foundations of the patient-physician relationship. Without these fundamental values in play, open and honest communications cannot occur and patients would not receive the care they require. Both the patient and the physician have significant investment in the relationship. CMA respects the requirements to disclose information without consent under certain premises, such as required by court order or statute. However, any kind of activity requiring physicians to disclose patient's information without consent for the purposes of advancing a government or institution's goal could jeopardize the relationship.
Both the patient's consent and the physician's consent should be required if there is potential to disturb this relationship. The physician is fiduciary of the relationship and is appropriately situated to assess and determine whether disclosure will disturb the relationship.
While CMA acknowledges that certain situations may require that disclosure occur without consent (eg. purposes of investigating fraud, national security, abuse or as legally required), disclosure for less malicious activities (e.g., breaches of an agreement, insurance claims) ought to require a court order or warrant. For example, under the proposed section 7(3)(d.1) if a physician were in default of a contract with a technology company supplying electronic medical record software or app to his/her clinic, the company could disclose health information without consent for the "purposes of investigating a breach of an agreement". While we appreciate that there is a caveat that disclosure without advising the patient can only occur if there is a reasonable expectation that the disclosure would compromise the investigation, we submit that leaving the determination of what is "reasonable" to an interested party to the breach is unfair to all. Another example, if a physician is a witness to a dispute between an employer and union representing an employee for denial of long term disability by an insurance company, and has filed a witness statement which includes a medical report he/she wrote to the employer's insurance company, under the proposed section 7(3)(e.1) disclosure of health information without consent is permitted in order to assess, process or settle an insurance claim.
CMA is concerned that the disclosure amendments are overly broad and do not differentiate sufficiently between highly time sensitive or grossly malicious situations, and those where it is merely expedient or an administrative encumbrance to seek consent.
In addition, the disclosure requirements are framed in permissive (ie., may) and not mandatory language (ie., shall). This is very problematic when the "organization" is a physicians' clinic unless the physician's own consent is made as a pre-condition. CMA believes this suggestion is a progressive one in keeping with the broadened disclosure amendments. Physicians are in a relationship of trust and take seriously the protection of patient privacy and confidentiality, for which they are trained and are ethically and legally required to protect.
To place physicians in a position which might entail breaching this trust may impact the confidence of the physician and the patient in the patient-physician relationship which is required to properly formulate appropriate treatment plans; thus, negatively impacting the health of Canadians.
That disclosures of health information without consent require a warrant or subpoena or court order. Furthermore, disclosures of health information require the physician's consent that in his/her opinion the disclosure does not harm the patient-physician relationship. And, finally any broadened disclosure situations be restricted to criminal activity or that impacting national security.
Once again, CMA appreciates the opportunity to provide comment as part of the committee's study of Bill S-4. CMA is prepared to work with Parliament, governments, health professionals and the public in ensuring legislative frameworks for the collection, usage and disclosure of personal information for legitimate and reasonable purposes.
The Canadian Medical Association (CMA) submits this response to the Canada Revenue Agency (CRA) as part of its public consultation on the Disability Tax Credit.
The CMA has long-standing and significant concerns pertaining to the Disability Tax Credit. Most notable is the recent legislative development that resulted in physicians being captured in the definition of “promoter”. In light of the significant concern with physicians being captured in the definition of “promoter”, this submission will focus exclusively on the regulatory development following the enactment of the Disability Tax Credit Promoters Restrictions Act. However, the CMA will follow up at a later date with feedback and recommendations to CRA on how the Disability Tax Credit form and process can be improved.
Prior to providing the CMA’s position for consideration as part of the regulatory consultation, relevant background respecting the CMA’s participation and recommendations during the legislative process is reviewed.
2. Background: CMA’s Recommendations during the Legislative Process
The CMA actively monitored and participated in the consultation process during the legislative development of Bill C-462, Disability Tax Credit Promoters Restrictions Act. During its consideration by the House of Commons, the CMA appeared before the House of Commons Finance Committee and formally submitted its recommendations.1 The CMA’s submission to the Finance Committee is attached as an appendix for reference. Throughout this process, the CMA consistently raised its concern that the bill proposed to include
physicians in the definition of “promoter”, to which the response was consistently that physicians would not be captured. The Member of Parliament sponsoring the bill conveyed this message at the second reading stage in the House of Commons:
1 Canada. Parliament. House of Commons. Standing Committee on Finance (2013). Evidence, May 7, 2013. 41st Parliament, 1st Session. Retrieved from www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6138958&Language=E&Mode=1&Parl=41&Ses=1
“Mr. Massimo Pacetti: Mr. Speaker…[in] her bill, she says that the definition of a promoter means a person who directly or indirectly accepts or charges a fee in respect to a disability tax credit. Who is a promoter exactly? Is a doctor, or a lawyer or an accountant considered a promoter?
Mrs. Cheryl Gallant: Mr. Speaker, that is an excellent question from my colleague opposite. We are looking at third party promoters quite apart from the regular tax preparers and accountants. It is a new cottage industry that sprung up once the 10- year retroactive provision was made. It recognizes that there are volunteer organizations and even constituency offices that do this type of work. They help constituents fill out applications for tax credits. There is a provision for exemptions so people who volunteer their time at no charge or doctors do not fall into this.”2
In contradiction to this statement, during the Senate National Finance Committee’s study of Bill C-462, CRA Assistant Commissioner Brian McCauley confirmed the CMA’s concerns,
stating explicitly that physicians would be captured in the definition of “promoter” and explained “they have to be captured because, if they weren't, you leave a significant compliance loophole”.3
As will be explained further below in this submission, this statement reveals a lack of
understanding of the implications of capturing physicians in the definition of “promoter”, in that it has established duplicative regulatory oversight of physicians, specific to the Disability Tax Credit form.
3. Priority Issue: Identify Physicians as an Exempt Profession in Regulation
The CMA has been consistent in our opposition to the approach that resulted in physicians being included in the definition of “promoters”. The definition of “promoter” captures physicians who may charge a fee to complete the disability tax credit form, a typical practice
2 C. Gallant. (2013 Feb. 5) Parliament of Canada. Debates of House of Commons (Hansard). 41st Parliament, 1st Session. Retrieved at www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5962192#Int-7872066
3 Canada. Parliament. Senate. Standing Committee on National Finance (2014). Evidence, April 2, 2014. 41st Parliament, 2nd Session. Retrieved at www.parl.gc.ca/Content/SEN/Committee/412/nffn/09ev-51313-e.htm?Language=E&Parl=41&Ses=2&comm_id=13.
for uninsured physician services.
As indicated on page 4 of the CRA’s consultation document, the Disability Tax Credit Promoters Restrictions Act includes the authority to “identify the type of promoter, if any, who is exempt from the reporting requirements under the Act.” Two questions are included on page 7 of the consultation document in relation to this regulatory authority.
It is the CMA’s recommendation in response to Question 12 (“Are there any groups or professions that should be exempt from the reporting requirements of the new Act?”) that physicians licensed to practice are identified in regulation as an exempt profession.
Specifically, the CMA recommends that CRA include an exemption in the regulations for “a health care practitioner duly licensed under the applicable regulatory authority who provides health care and treatment” from the reporting requirements of the Disability Tax Credit Promoters Restrictions Act.
As explained below, this exemption will not introduce a potential loophole that may be exploited by third party companies to circumvent the new restrictions and will mitigate the legislative development that has introduced duplicative regulatory oversight of physicians.
4. Exemption Required to Avoid Duplicative Regulatory Regime; Not a Loophole
By capturing physicians in the definition of promoters, the Disability Tax Credit Promoters Restrictions Act has introduced a duplicative regulatory body for physicians: a development which the CMA has fundamentally opposed.
As CMA understands it, the CRA’s key concern in capturing physicians in the definition of promoter is with respect to the possibility that third party companies may circumvent these limitations by employing a physician. As previously noted, this issue was raised by CRA’s Assistant Commissioner Brian McCauley in his appearance before the Senate National Finance Committee during its study of Bill C-462.
A) CMA’s Recommendation Respects Existing Regulatory Oversight Regime of Physicians
The CMA’s recommendation and regulatory proposal limits the exemption of physicians as a profession to those currently licensed under the regulatory authority of provincial/territorial medical regulatory colleges. In Canada, medical practice is the regulatory purview of provinces and territories.
Charging a fee for the completion of a form is a typical practice for uninsured services – these are services that fall outside of provincial/territorial health insurance coverage. The practice of charging a fee for an uninsured service by a licensed physician is an activity that is part of medical practice. Such fees are subject to guidelines by provincial and territorial medical associations and oversight by provincial/territorial medical regulatory colleges.
The regulatory oversight, including licensing, of physicians falls under the statutory authority of medical regulatory colleges, as legislated and regulated by provincial and territorial governments. For example, in the Province of Saskatchewan, the Medical Profession Act, 1981 establishes the regulatory authority of the College of Physicians and Surgeons of Saskatchewan. This regulatory authority is comprehensive and captures: medical licensure, governing standards of practice, professional oversight, disciplinary proceedings, and offences. In Ontario, this authority is established by the Regulated Health Professions Act, 1991; in British Columbia, by the Health Professions Act, 1996, and so on.
B) CMA’s Recommendation Does Not Introduce a Loophole
The exemption of physicians as a profession that is “duly licensed under the applicable regulatory authority who provides health care and treatment” would not constitute a loophole. Firstly, any concerns regarding the practices of a physician that is exempted based on this definition could be advanced to the applicable regulatory college for regulatory oversight and if appropriate, discipline.
The CMA’s proposed regulatory exemption would not be applicable in the case of a physician not licensed to practice; in this case, the individual would not be under the regulatory authority of a medical regulatory college and would fall under the CRA’s regulatory purview,
as established by the Disability Tax Credit Promoters Restrictions Act. With regard to the example raised by CRA’s Assistant Commissioner Brian McCauley in his remarks before the Senate Committee of a retired doctor hired by promoter, retired physicians can retain their licence. If this was the case for this particular physician, as noted above, when CRA had concerns regarding this physician’s actions, his or her regulatory college could have taken appropriate disciplinary action. If, on the other hand, this retired physician’s licence had lapsed, both the individual and the promoter who hired him or her would be potentially liable for fraud (assuming that the term “medical doctor” used in Form T2201 refers to an actively licensed physician) which would convey more serious consequences than those proposed by the Disability Tax Credit Promoters Restrictions Act.
The CMA strongly encourages the CRA to identify physicians as a profession that is exempt from the reporting requirements of the Disability Tax Credit Promoters Restrictions Act. This exemption is critical to ensure that possible unintended consequences, specifically duplicative regulatory oversight of physicians, are avoided.
The CMA is pleased to have this opportunity to address the Canadian Panel on Violence Against Women. As a professional organization with a leadership role in societal issues affecting health, it is both appropriate and important for the CMA to be actively involved in addressing the problems associated with violence. The extremely high incidence of abuse, the associated severe physical, mental and psychological health problems and the significant role played by physicians in recognizing and caring for victims make this a priority for organized medicine.
The CMA has significant experience and expertise in this field. In 1984, the CMA General Council passed a resolution stating:
"That Health and Welfare Canada and the Provincial Ministries of Health and Education
alert the Canadian public to the existence of family violence, including wife assault, child
abuse, and elder abuse, and to the services available which respond to these problems,
and that organized medicine (through such vehicles as professional journals, newsletters,
conferences and formal medical education) alert the physicians of Canada to the problem
and that all physicians learn to recognize the signs of family violence in their daily contact
with patients and undertake the care and management of victims using available
community resources." (Resolution #84-47)
The CMA calls the Panel's attention to four major areas of concern: Recognition and Treatment, Education and Training, Protocol Development and Research.
1. Recognition and Treatment:
Recognition includes acknowledging the existence and prevalence of abuse and identifying
victims of violence. Violence against women is clearly a health issue and one that should be given a very high priority. Statistics indicate that nearly one in eight Canadian women will be subject to spousal violence in her lifetime and that one in five will be a victim of sexual assault. Violence against women is a major determinant of both short -and long-term health problems including traumatic injury, physical and psychological illnesses, alcohol/drug addiction and death. Furthermore, although it is critically important to recognize that abuse crosses all racial and socio-economic boundaries, there are strong indications that certain groups are particularly vulnerable to abusive acts (e.g., pregnant, disabled and elderly women).
Recognition includes acknowledging and understanding the social context within which violence occurs. Violence is not an isolated phenomenon, but is part of the much broader issue of societal abuse of women.
Physicians are often the first point of contact for patients who have been abused physically, sexually, mentally and/or psychologically. They have a vital role to play in identifying victims and providing treatment and supportive intervention including appropriate referral. Abuse is not always readily apparent, however, and may go undetected for extended periods of time. Numerous studies have shown that both physicians and patients often fail to identify abuse as an underlying cause of symptoms. Such delays can result in devastating and sometimes fatal consequences for patients. Even in those cases where abuse is apparent, both physicians and patients often feel uncomfortable talking openly about the abuse and the circumstances surrounding it. It is the physician's role and responsibility to create a safe and supportive environment for the disclosure and discussion of abuse.
Furthermore, the lack of resources for support services or the lack of awareness of what services are available to provide immediate and follow-up care to patients in need may discourage physicians from acknowledging the existence of abuse and identifying victims. It is clear that improvement in the ability and the degree to which victims of abuse are recognized and given appropriate assistance by physicians and other caring professionals in a non-threatening environment is urgently required.
Individuals who are abused usually approach the health care system through primary contact with emergency departments or other primary care centres. The care available in such settings is acute, fragmented and episodic. Such settings are not appropriate for the victims of violence.
The challenge that we, as physicians, recognize is to be able to provide access in a coordinated way to medical, social, legal and other support services that are essential for the victim of violence. This integration of services is essential at the point of initial recognition and contact. The CMA has been involved with eight other organizations in the Interdisciplinary Project on Domestic Violence (IPVD), the primary goal of which is to promote interdisciplinary co-operation in the recognition and management of domestic violence.
2. Education and Training: The spectrum of abuse is complex; the victims are diverse; expertise in the field is developing. The current system of medical education neither provides health care personnel with the knowledge or skills nor does it foster the attitude to deal adequately with this issue. Some of CMA's divisions have played an active role in this area. For instance, the Ontario Medical Association has developed curriculum guidelines and medical management of wife abuse for undergraduate medical students. It is ,important that there be more involvement by relevant medical groups in developing educational and training programs and more commitment from medical educators to integrate these programs and resources into the curriculum.
Programs must be developed and instituted at all levels of medical education in order that physicians can gain the requisite knowledge and skills and be sensitive to the diversity of victims of violence.
The CMA believes that the educational programs must result in: 1) understanding of the health consequences of violence; 2) development of effective communication skills; and, 3) understanding of the social context in which violence occurs.
Understanding of the social context in which violence occurs will require an examination of the values and attitudes that persist in our society, including a close consideration of the concepts of gender role socialization, sexuality and power. This is required in order to dispel the pervasive societal misconceptions held by physicians and others which act as barriers to an effective and supportive medical response to patients suffering the effects of violence.
3. Development of Protocols: The CMA recognizes the need for more effective management and treatment of the spectrum of problems associated with violence against women. Health care facilities, professional organizations and other relevant groups are challenged to formulate educational and policy protocols for integrated and collaborative approaches to dealing with prevention of abuse and the management of victims of violence.
The CMA and a number of its divisions have been active in this area:
In 1985, the CMA prepared and published Family Violence: Guidelines for Recognition and Management (Ghent, W.R., Da Sylva, N.P., Farren, M.E.), which dealt with the signs and symptoms, assessment and management, referral assistance and medical records with respect to wife battering, child abuse and abuse of the elderly;
The Ontario Medical Association published Repons on Wife Assault in January 1991. This document, endorsed by the CMA, examines the problem of wife assault from a medical perspective and outlines approaches to treatment of the male batterer and his family;
The Medical Society of Nova Scotia has developed a handbook entitled Wife Abuse: A Handbook for Physicians, advising on the identification and management of cases involving the battering of women;
The New Brunswick Medical Society has produced a series of discussion papers on violence and in conjunction with that province's Advisory Council on the Status of Women, has produced a graphic poster depicting physical assault on pregnant women as a way of urging physicians to be alert for signs of violence against women;
The Medical Society of Prince Edward Island has worked cooperatively with the provincial Department of Health and Social Services and the Interministerial Committee on Family Violence to produce a document entitled Domestic Violence: A Handbook for
The CMA encourages continued involvement by the medical profession in the development of initiatives such as these and welcomes the opportunity to work in collaboration with other professionals involved in this area.
4. Research The CMA has identified violence against women as a priority health issue. Like rriany other areas in women's health, there is a need for research focusing on all aspects of violence and the associated problems. More specifically, the CMA maintains that there should be more research on the incidence of abuse (particularly as it relates to particular groups), on ways to facilitate the disclosure by victims of abuse and on the effectiveness of educational and prevention programs.
The CMA recognizes that the medical profession must show a greater commitment to ending abuse of women and providing more appropriate care and support services to those who are victims of violence. The CMA possesses unique skills and expertise in this area and welcomes the opportunity to work with the Panel on this challenging social and health problem.