O. Reg. 537/06: GENERAL, Filed December 8, 2006 under Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A

ontario regulation 537/06

made under the

Personal Health Information Protection Act, 2004

Made: December 6, 2006
Filed: December 8, 2006
Published on e-Laws: December 11, 2006
Printed in The Ontario Gazette: December 23, 2006

Amending O. Reg. 329/04

(General)

1. Section 1 of Ontario Regulation 329/04 is amended by adding the following subsections:

(3.1) In paragraph 4 of the definition of “health information custodian” in subsection 3 (1) of the Act,

“person who operates” includes, with respect to a psychiatric facility within the meaning of the Mental Health Act, the officer in charge of the facility within the meaning of the Mental Health Act.

. . . . .

(5.1) In subsection 13 (1) of the Act,

“disposed of in a secure manner” does not include, in relation to the disposition of records of personal health information, the destruction of the records unless the records are destroyed in such a manner that the reconstruction of the records is not reasonably foreseeable in the circumstances.

. . . . .

(8.1) In subclause 36 (1) (b) (i) of the Act,

“accurate” means, with respect to personal health information, correct and sufficient for the purposes for which the information is reasonably required.

(8.2) In clause 37 (1) (g) of the Act,

“the individual’s consent” includes the consent of a substitute decision-maker given on the individual’s behalf in accordance with the Act; (“consentement du particulier”)

“the individual’s name and contact information” includes the name and contact information of the individual’s substitute decision-maker, if any. (“au nom du particulier et à ses coordonnées”)

. . . . .

(11) For the purposes of subsection 51 (3) of the Act,

“health information custodian acting as an agent of an institution” means a health care practitioner who is acting as part of the institution.

2. Subsection 3 (3) of the Regulation is revoked and the following substituted:

(3) With respect to public health laboratory centres established and maintained under section 79 of the Health Protection and Promotion Act, the Director of the Laboratories Branch of the Ministry of Health and Long-Term Care,

(a) is prescribed as a health information custodian;

(b) is prescribed as a single health information custodian with respect to all the functions of the public health laboratory centres; and

(c) shall be deemed to be included in the list of types of custodians referred to in subsections 20 (2) and (3) and clause 38 (1) (a) of the Act.

(4) The Minister of Health Promotion, together with the Ministry of Health Promotion, if the context so requires, is prescribed as,

(a) a health information custodian; and

(b) a single health information custodian with respect to all functions of the Minister and the Ministry.

(5) The Ontario Air Ambulance Services Corporation,

(a) is prescribed as a health information custodian;

(b) is prescribed as a single health information custodian with respect to all of its functions; and

(c) shall be deemed to be included in the list of types of custodians referred to in subsections 20 (2) and (3) and clause 38 (1) (a) of the Act.

(6) Every municipality that operates a communications service within the meaning of the Ambulance Act is prescribed as,

(a) a health information custodian; and

(b) a single health information custodian with respect to all of its functions in operating the communications service. 

(7) Every person who, as a result of the bankruptcy or insolvency of a health information custodian, obtains complete custody or control of records of personal health information held by the health information custodian, is prescribed as the health information custodian with respect to those records.

3. (1) Section 5 of the Regulation is amended by adding the following paragraph:

3.1 Subsection 44 (3) of the Social Work and Social Service Work Act, 1998.

(2) Section 5 of the Regulation is amended by adding the following subsection:

(2) Section 5 of the Trillium Gift of Life Network Act prevails over the Personal Health Information Protection Act, 2004 in the event of a conflict.

4. The Regulation is amended by adding the following section:

Smart Systems for Health Agency

6.1 The Smart Systems for Health Agency shall put in place administrative, technical and physical safeguards, practices and procedures that have been reviewed by the Commissioner to protect both the privacy of the individuals in relation to whose personal health information it provides services and the confidentiality of such information, and that,

(a) permit compliance with the Act by health information custodians who rely on services supplied by the Agency to use electronic means to collect, use, modify, disclose, retain or dispose of personal health information; and

(b) permit the Agency to comply with section 6 of this Regulation. 

5. The Regulation is amended by adding the following section:

Notification if no consent

8.1 For the purposes of subsection 20 (2) and clause 37 (1) (a) of the Act, if a health information custodian described in paragraph 1, 2, 3 or 4 of the definition of “health information custodian” in subsection 3 (1) of the Act or a health information custodian prescribed by subsection 3 (3) or (5) of this Regulation provides personal health information about an individual to an agent of the custodian for the purpose of providing health care or assisting in the provision of health care to the individual and if the custodian does not have the consent of the individual to provide all the personal health information about the individual that the custodian considers reasonably necessary for that purpose, the custodian shall notify the agent to whom the custodian provides the information of that fact.

6. (1) Subsection 10 (1) of the Regulation is revoked and the following substituted:

Fundraising

(1) The following types of contact information are prescribed for the purposes of clause 32 (1) (b) of the Act:

1. The mailing address of the individual.

2. The name and mailing address of the individual’s substitute decision-maker.

(2) Paragraph 2 of subsection 10 (2) of the Regulation is amended by adding “For personal health information collected on or after November 1, 2004” at the beginning.

(3) Subsection 10 (2) of the Regulation is amended by adding the following paragraph:

2.1 For personal health information collected before November 1, 2004, a health information custodian is entitled to assume that it has the individual’s implied consent to use or disclose the individual’s name and contact information for the purpose of fundraising activities, unless the custodian is aware that the individual has expressly withheld or withdrawn the consent.

(4) Subsection 10 (3) of the Regulation is revoked.

7. Section 11 of the Regulation is amended by adding the following paragraph:

5. A person conducting health research to the extent that the individual to whom the health number was issued has provided a valid consent to the collection or use of his or her health number for that purpose.

8. Paragraph 2 of section 12 of the Regulation is amended by striking out the portion before subparagraph i and substituting the following:

2. A researcher who has custody or control of personal health information, including a health number, by reason of a disclosure authorized under section 44 of the Act may disclose the health number to a person who is a prescribed person for the purposes of clause 39 (1) (c) of the Act, an entity prescribed for the purposes of subsection 45 (1) of the Act or another researcher if,

. . . . .

9. (1) Subsection 13 (1) of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:

Registries of personal health information

(1) The following are prescribed persons for the purposes of clause 39 (1) (c) of the Act if the requirements of subsection (2) are satisfied:

. . . . .

(2) Paragraph 3 of subsection 13 (1) of the Regulation is revoked.

(3) Paragraph 4 of subsection 13 (1) of the Regulation is amended by striking out “in respect of the Canadian Stroke Registry” and substituting “in respect of the Registry of the Canadian Stroke Network”.

(4) Subsection 13 (1) of the Regulation is amended by adding the following paragraph:

5. Hamilton Health Sciences Corporation in respect of the Critical Care Information System.

(5) Subsection 13 (2) of the Regulation is revoked and the following substituted:

(2) A person who is a prescribed person for the purposes of clause 39 (1) (c) of the Act shall put into place practices and procedures,

(a) that are for the purpose of protecting the privacy of the individuals whose personal health information it receives and for maintaining the confidentiality of the information; and

(b) that are approved by the Commissioner every three years.

10. The Regulation is amended by adding the following section:

Disclosure by custodian, s. 43 (1) (f) of the Act

15.1 For greater certainty, for the purposes of clause 43 (1) (f) of the Act, the reference in clause 43 (1) (f) of the Act to a health information custodian who is subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act includes a reference to a health information custodian who is subject to either of those Acts because the custodian is acting as part of an institution, as defined in the applicable Act.

11. The Regulation is amended by adding the following sections:

Permission to disclose

24.1 A health information custodian mentioned in subsection 51 (3) of the Act may disclose the record mentioned in that subsection to an institution to enable the institution to process the individual’s request under the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act, as the case may be.

Notice, Part does not apply

24.2 For the purposes of clause 54 (1) (b) of the Act, written notice shall also be provided if the health information custodian concludes that the record is one to which Part V of the Act does not apply.