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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 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 centre 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 by privacy laws.

There is no evidence linking Wensvoort'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.

The Facts: In 2012, the Health Employers' Association of British Columbia introduced an Influenza Control Program Policy requiring health care workers to get a flu shot or wear a mask while caring for patients during flu season, which the union grieved. The employer, representing six Health Authorities in B.C., implemented the policy in response to low vaccine coverage rates of health care workers and an inability to achieve target rates of vaccination through campaigns promoting voluntary vaccination commencing in 2000. Acting on the advice of Dr. Perry Kendall, B.C.'s Provincial Health Officer, and relying on evidence suggesting that health care worker vaccination and masking reduce transmission of influenza to patients, the employer moved towards a mandatory policy. Asserting that members had the right to make personal health care decisions, the B.C. Health Sciences Association filed a policy grievance, contending that the policy violated the collective agreement, the Human Rights Code of British Columbia, privacy legislation, and the Canadian Charter of Rights and Freedoms. Extensive expert medical evidence during the hearing indicated that immunization was beneficial for the health care workers themselves, but was divided as to whether immunization of health care workers reduced transmission to patients. The evidence was similarly divided as to the utility of masking.

Comment:

Having determined that the policy was reasonable under the KVP test, Diebolt turned to the Irving test applicable to policies that affect privacy interests, which he characterized as requiring an arbitrator to balance the employer's interest in the policy as a patient safety measure against the harm to the privacy interest of the health care workers with respect to their vaccination status. Determining that the medical privacy right at stake in the annual disclosure of one's immunization status did not rise to the level of the right considered in Irving, which involved "highly intrusive" seizures of bodily samples, Diebolt further held that the employer's interest in patient safety related to a "real and serious patient safety issue" and that "the policy [was] a helpful program to reduce patient risk." Diebolt also considered that the employer had chosen the least intrusive means to advance its interest in light of the unsuccessful voluntary programs and in providing the alternative of masking. To quote the arbitrator: "[W]eighing the employer's interest in the policy as a patient safety measure against the harm to the privacy interest of the health care workers and applying a proportionality test respecting intrusion, based on the considerations set out above I am unable to conclude that the policy is unreasonable."

Diebolt also upheld the masking component of the policy as reasonable, finding on the evidence that masking had a "patient safety purpose and effect" by inhibiting the transmission of the influenza virus, and an "accommodative purpose" for health care workers who conscientiously objected to immunization. Observing that mandatory programs have been accepted in New Brunswick and the United States, Diebolt also considered that regard should be paid to the precautionary principle in health care settings that "it can be prudent to do a thing even though there may be scientific uncertainty." Moreover, he held that the absence of a reference to accommodation did not make the policy unreasonable, noting that this duty was a free-standing legal obligation that was not required explicitly to be incorporated into the policy and that any such issue should be addressed in an individual grievance if made necessary by the policy's application. He also rejected the union's submission that the policy could potentially harm health care workers' mental and physical health, considering the evidence to fall short of "establishing a significant risk of harm, such that the policy should be considered unreasonable."

Turning first to the KVP test, specifically whether the policy was consistent with the collective agreement and was a reasonable exercise of the employer's management rights, Diebolt noted that the only possible inconsistency with the collective agreement would be with the non-discrimination clause, given his ruling regarding the scope of Article 6.01, and that he would address this issue in his reasons with respect to the Human Rights Code. Diebolt then turned to the reasonableness of the policy and found, after an extensive review of the conflicting medical evidence that: (1) the influenza virus is a serious, even fatal disease; (2) immunization reduces the probability of contracting the disease; and (3) immunization of health care workers reduces the transmission of influenza to patients. Accordingly, Diebolt reasoned that the facts militated "strongly in favour of a conclusion that an immunization program that increases the rate of health care immunization is a reasonable policy."

Diebolt instead regarded the policy as a unilaterally imposed set of rules, making it necessary to establish that they were a legitimate exercise of the employer's residual management rights under the collective agreement and met the test of reasonableness set out in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., [1965] O.L.A.A. No. 2 (QL) (Robinson). In addition, given that the policy contained elements that touched on privacy rights, Diebolt held that the policy must also meet the test articulated in CEP, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII) (reviewed in Lancaster's Disability & Accommodation, August 9, 2013, eAlert No. 182), in which the Supreme Court of Canada held that an employer cannot unilaterally subject employees to a policy of random alcohol testing without evidence of a general problem with alcohol abuse in the workplace, based on an approach of balancing the employer's interest in the safety of its operations against employees' privacy.

In a 115-page decision, Arbitrator Robert Diebolt denied the grievance and upheld the policy as lawful and a reasonable exercise of the employer's management rights.

The Decision:

As noted by the arbitrator, no Canadian decision has addressed a seasonal immunization policy similar to the policy in this case. However, a number of decisions have addressed, and generally upheld, outbreak policies mandating vaccination or exclusion on unpaid leave. B.C. Health Sciences Association President Val Avery expressed his disappointment in the arbitrator's ruling, stating: "Our members believed they had a right to make personal health care decisions, but this policy says that's not the case." Avery said the Association is studying the ruling and could appeal. On the other hand, Dr. Perry Kendall, B.C.'s chief medical officer of health, applauded the decision, calling it a "win for patients and residents of long-term care facilities."

In 2012, Public Health Ontario changed its guidelines to call for mandatory flu shots because not enough health care workers were getting them voluntarily. Other municipal public health units – led by Toronto Public Health – also called for mandatory shots. Ontario's chief medical officer of health, Dr. Arlene King, stated in November 2013 that, while the government wants to see a dramatic increase in the number of health care workers who get a flu shot, it is stopping short of making vaccinations compulsory, but has instead implemented a three-year strategy to "strongly encourage health care workers to be immunized every year." She acknowledged, however, that the number of health care workers getting inoculated remains at 51 percent for those employed in hospitals and 75 percent for those in long-term care homes. For further discussion of the validity of employer rules, see section 14.1 in Mitchnick & Etherington's Leading Cases on Labour Arbitration Online.

That's because the staff with premier's office — the ministry also known as executive council — are  not covered under the current protection of privacy legislation, commissioner Ron Kruzeniski said Tuesday in a report.

Bowden believed he had been suspended for speaking out and complained to the privacy commissioner.

The curtains were located in the medical and surgical intensive care units and on a medical ward of the University of Iowa Hospitals.

Of the 13 privacy curtains placed during the study, 12 showed contamination with in a week. Virtually all privacy curtains tested – 41 out of 43 – were contaminated on at least one occasion.

“The vast majority of curtains showed contamination with potentially significant bacteria within a week for first being hung, and many were hanging for longer than three or four weeks,” Dr. Ohl said.

While the agricultural issues may dominate debate, it is only one unresolved issue of many. Indeed, the concerns associated with the agreement go far beyond the supply of products such as milk and chickens. First, a recently leaked version of the intellectual property chapter revealed that Canada would have to make significant changes to its copyright and patent rules. The TPP requires Canada to extend the term of copyright to life of the author plus an additional 70 years. The law is currently set at life of the author plus 50 years, which meets the international standard found in the Berne Convention.

The extension in the term of copyright, which has generated fear in other TPP countries such as Japan, New Zealand and Malaysia, would mean that no new works would enter the public domain in Canada for decades. The result would be higher costs for both consumers and educational institutions, with most of the additional royalties flowing out of the country. The deal reportedly also penalizes Canada for its "notice-and-notice" system for claims of infringement on the Internet. The system has been in effect since the start of the year and has been credited with significantly reducing Canadian piracy rates. The Canadian approach differs from that found in the U.S., however, leading to additional demands that Canada establish enforcement provisions targeting Internet providers and search engines.

The patent provisions in the TPP have sparked concern from health and access-to-medicines groups around the world. With requirements that would delay entry of generic pharmaceuticals into the market, the TPP threatens to create huge additional health-care costs. In fact, the agreement would also expand the right of pharmaceutical companies to sue governments over national laws, creating the prospect of more lawsuits similar to the $500-million lawsuit launched by pharmaceutical giant Eli Lilly against the government of Canada. With the media focus on agriculture, the TPP's implications for privacy have also been largely overlooked. Provinces such as British Columbia and Nova Scotia have enacted privacy safeguards in recent years that are designed to keep Canadian data in Canada. These rules have become particularly important in the aftermath of the Edward Snowden surveillance revelations, since the transmission and hosting of personal information outside the country raises genuine privacy concerns.

Yet the TPP views such privacy protections as trade barriers and seeks to establish new limits on the ability of countries to restrict the free flow of information across national borders. New rules related to copyright, patents, privacy and investor lawsuits have serious implications for the rights of Canadians, as well as for consumer, health care and education costs. With the TPP in the final stages, Canadians deserve better than canned responses from political parties and a debate limited to the impact of the deal on the agricultural sector. Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at michaelgeist.ca.

The inquiry should seek to understand, and to remedy, how a painstakingly built program to bring evidence to prescribing could be undone so quickly and, based on the government's own public statements, mistakenly," they say in an open letter to Mr. Lake. "It should recommend how to restore public confidence that the government is fully engaged in ensuring the safety and effectiveness of prescription medicines."

The provincial government has apologized for the firings and acknowledged it overreacted to a data breach involving patient information. An independent review could not determine who was responsible for the firings or why they occurred.

The health ministry staff and contractors were helping an independent agency called the Therapeutics Initiative develop evaluations of the effectiveness and safety of prescription drugs

The information was used to determine if those pharmaceuticals should be eligible for coverage under the publicly funded PharmaCare program. Last week, Mr. Lake said he is still trying to find a way to release more information about what happened, but is constrained by privacy laws and a wrongful dismissal lawsuit.

On Tuesday, Finance Minister Mike de Jong said a public inquiry would be too expensive, costing "millions upon millions of dollars." "The desire to ensure that employees are being treated fairly and that there are proper processes in place to guarantee that fact is not, in my view, dependent upon a public inquiry," Mr. de Jong told reporters.

In their letter, the workers dismissed the argument that B.C.'s privacy laws are a barrier to an independent inquiry, noting that the B.C. Freedom of Information and Protection of Privacy Act excludes public servants from privacy protection in matters concerning accountability for official actions.

They also argue that the cost would be recouped if the inquiry led to a complete renewal of the government's commitment to scrutinizing prescription drugs. Although they are not calling specifically for a full public inquiry, they said the review should be independent, with the authority to call witnesses under oath, and provide funding to cover the legal costs of participants.

"We share the concern about additional costs," they wrote, but said the province would benefit from better health care and lower costs if it can fully restore its drug research efforts.

"Our work ... enabled BC PharmaCare to improve prescribing safety and save over $100-million in the past 20 years by not covering drugs that were later confirmed in other jurisdictions to have caused harm to patients and massive wastage of expenditures."

The workers were suspended and then fired, and left under a cloud for three years after the government said the data breach was so serious that it warranted an RCMP investigation. However, internal e-mails show the RCMP probe, although still not formally closed, never went far.

One of the researchers, Roderick MacIsaac, killed himself after being interrogated by government officials and fired just two days before the end of his student co-op term. His sister Linda Kayfish signed the letter on his behalf. The other workers are Ramsay Hamdi, Robert Hart, Malcolm Maclure, Rob Mattson, David Scott, and Rebecca and William Warburton.

St. John's (28 June 2016) —Jerry Earle, President of Newfoundland and Labrador Association of Public and Private Employees (NAPE/NUPGE) is supporting recent recommendations by the Office of the Information and Privacy Commissioner (OIPC) that Eastern Health release the contracts for privatized health care services to the public. Three corporations fought the release of health care service contracts

Transparency key when corporations receive government funding

Public has a right to know if checks and balances are in place with private contracting

Cavoukian found that 19,000 “mental health episodes" have been uploaded to CPIC. "The untenable practice of automatic or blanket sharing of police information related to suicide threats or attempts simply cannot continue," Cavoukian said. "The record of a person's suicide attempt is personal health information, that should be protected to the greatest extent possible," said Dr. Peter Voore, medical director at the Centre for Addiction and Mental Health (CAMH). “I am calling upon all police services across Ontario to immediately cease the practice of automatically uploading or disclosing personal information relating to threats of suicide or attempted suicide via CPIC, by default,” Cavoukian said.

Scientists overseeing the studies say the apps could transform medical research by helping them collect information more frequently and from more people, across larger and more diverse regions, than they're able to reach with traditional health studies. A smartphone "is a great platform for research," said Dr. Michael McConnell, a Stanford University cardiologist, who's using an app to study heart disease. "It's one thing that people have with them every day." While the studies are in early stages, researchers also say a smartphone's microphone, motion sensors and touchscreen can take precise readings that, in some cases, may be more reliable than a doctor's observations. These can be correlated with other health or fitness data and even environmental conditions, such as smog levels, based on the phone's GPS locator.

"Participating in clinical studies is often a burden," he explained. "You have to live near where the study's being conducted. You have to be able to take time off work and go in for frequent assessments." Smartphones also offer the ability to collect precise readings, Dorsey added. One test in the Parkinson's study measures the speed at which participants tap their fingers in a particular sequence on the iPhone's touchscreen. Dorsey said that's more objective than a process still used in clinics, where doctors watch patients tap their fingers and assign them a numerical score.

The most important is safeguarding privacy and the data that's collected, according to ethics experts. In addition, researchers say apps must be designed to ask questions that produce useful information, without overloading participants or making them lose interest after a few weeks. Study organizers also acknowledge that iPhone owners tend to be more affluent and not necessarily an accurate mirror of the world's population. Apple had previously created software called HealthKit for apps that track iPhone owners' health statistics and exercise habits. Senior vice-president Jeff Williams said the company wants to help scientists by creating additional software for more specialized apps, using the iPhone's capabilities and vast user base - estimated at 70 million or more in North America alone. "This is advancing research and helping to democratize medicine," Williams said in an interview.

Apple launched its ResearchKit program in March with five apps to investigate Parkinson's, asthma, heart disease, diabetes and breast cancer. A sixth app was released last month to collect information for a long-term health study of gays and lesbians by the University of California, San Francisco. Williams said more are being developed. For scientists, a smartphone app is a relatively inexpensive way to reach thousands of people living in different settings and geographic areas. Traditional studies may only draw a few hundred participants, said Dr. Ray Dorsey, a University of Rochester neurologist who's leading the Parkinson's app study, called mPower.

Others have had similar ideas. Google Inc. says it's developing a health-tracking wristband specifically designed for medical studies. Researchers also have tried limited studies that gather data from apps on Android phones. But if smartphones hold great promise for medical research, experts say there are issues to consider when turning vast numbers of people into walking test subjects.

Some apps rely on participants to provide data. Elizabeth Ortiz, a 48-year-old New York nurse with asthma, measures her lung power each day by breathing into an inexpensive plastic device. She types the results into the Asthma Health app, which also asks if she's had difficulty breathing or sleeping, or taken medication that day. "I'm a Latina woman and there's a high rate of asthma in my community," said Ortiz, who said she already used her iPhone "constantly" for things such as banking and email. "I figured that participating would help my family and friends, and anyone else who suffers from asthma."

None of the apps test experimental drugs or surgeries. Instead, they're designed to explore such questions as how diseases develop or how sufferers respond to stress, exercise or standard treatment regimens. Stanford's McConnell said he also wants to study the effect of giving participants feedback on their progress, or reminders about exercise and medication. In the future, researchers might be able to incorporate data from participants' hospital records, said McConnell. But first, he added, they must build a track record of safeguarding data they collect. "We need to get to the stage where we've passed the privacy test and made sure that people feel comfortable with this."

Toward that end, the enrolment process for each app requires participants to read an explanation of how their information will be used, before giving formal consent. The studies all promise to meet federal health confidentiality rules and remove identifying information from other data that's collected. Apple says it won't have access to any data or use it for commercial purposes.

Elizabeth Ortiz uses the Asthma Health smartphone app to track her condition. • Richard Drew/the associated press