Understanding Privacy Legislation in Health Care: The Mustimuhkw Health Information System Pilot

1. Wait Times Guarantee Pilot A partnership between Saint Elizabeth Health Care and the Assembly of Manitoba Chiefs

2. PRIVACY LEGISLATION AND THE MUSTIMUHW HEALTH INFORMATION SYSTEM

3. LEGAL OPINION • Applicability of federal and provincial privacy legislation • Review of potential privacy related restrictions • Analysis for transferred, non-transferred and integrated communities • Recommendations

4. JURISDICTIONS FOR PRIVACY LEGISLATION • FEDERAL-Constitutional Jurisdiction over matters of national concern-Privacy Act, Personal Information Protection and Electronic Documents Act • PROVINCIAL-Constitutional Jurisdiction over property and civil rights-Privacy Act, Freedom of Information and Protection of Privacy Act, Personal Health Information Act • FIRST NATIONS- Inherent right to self-governance and authority to enact own privacy laws and regulations

5. MUSTIMUHW HEALTH INFORMATION SYSTEM • First Nations e-health record and program reporting owned by Cowichan Tribes • Primary principle is recognition and acknowledgement that the FN is the steward of health information • Health information is held for the benefit of the members of the FN • The FN commits to protecting the privacy of the individuals and the community’s interests • Consistent with the principles of FNs OCAP

6. CONSENT • Consent is the basis of all privacy legislation, federal and provincial • If a client consents to collection, use and disclosure of their personal information no other legal authority is required • Consent may be expressed, written, or implied • MHIS is based upon individual and community consent

7. APPLICABILITY OF LEGISLATION • Neither the federal Privacy Act nor the PIPEDA applies to FNs collection, use and disclosure of personal health information related to their delivery of health services • The Privacy Act applies only to federal government departments and agencies. • All regulated health professionals must comply with Manitoba’s Personal Health Information Act

8. APPLICABILITY OF LEGISLATION • Transferred and Integrated FNs implementing MHIS are not subject to any specific privacy legislation • FN must exercise due diligence in the protection of personal information within its control • FN PIA and MHIS Policies and Procedures ensure due diligence and ensures health professionals practice is consistent with PHIA • MHIS provides protection for aggregate FNs data where the Privacy Act does not and cannot

9. APPLICABILITY OF LEGISLATION • Where First Nations delivers health services and Health Canada employee assists in delivery of those services the Privacy Act does not apply • Where Health Canada (FNIH) directly delivers health services they must comply with Privacy Act- can do so with MHIS • Who controls the delivery of health services is the key

10. NON TRANSFERRED HEALTH SERVICES • Project unable to implement Mustimuhw due to FNIH perception of privacy legislation obstacles • Legal opinion states there are in fact no legal obstacles • Justice Canada has concluded the same • MHIS can comply with Privacy Act and meets provincial standards under PHIA • Non transferred communities are being denied the ability to benefit from MHIS

11. RECOMMENDATIONS AND NEXT STEPS • Review legal opinion with FNIHB Headquarters- Ottawa • AMC continue to advocate and lobby • Chief Donovan Fontaine- AFN Chiefs Committee on Health • Legal Opinion to be provided to all participating communities