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Volume3 Issue1
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care system inwhich informationmovesbackand
forthbetween thepublicandprivate sectors.
Does itmatterhowapractice issetup, in
termsofadentist’sobligations forprotecting
personalhealth information?For instance,
doesasolopractitionerhave thesame
obligationsasadentist inagrouppractice?
Thedentist is thecustodianof thepersonal health
informationand is responsible for individuals
whoaccesspatient health information. So if
there is agrouppractice, it’s important to identify
who,within thegrouppractice, is thecustodian;
it’s critical to set outwhohas theultimate
responsibility formanagement of the information.
Andwith that responsibilitycomes legal liability
under theprivacy laws.
On the topicofpatientconsent todisclose
information, theprivacyprinciplesoutline
threesituationswhenpatientconsent iseither
(1)required, (2)assumed,or(3)notrequired.
Canyouprovideanexampleofeach instance?
Generally, dentistsmayassume that
theyhave their patient’s consent
to sharehealth informationamong
healthprofessionals involved in the
patient’s careand treatment. For
example,whenadentist ingeneral
practiceneeds to refer their patient
toa specialist, then thepatient’s
consent for theprovisionof thehealth
informationmaybeassumed.
But oncehealth information is sharedoutside
of thehealthcontext, patientsneed toprovide
express consent to their dentist, grantinghimor
her theauthority tomake that disclosure. Agood
example iswhenhealth information is sharedwith
insurersor benefitmanagers—in that case, patient
consent is required.
Whenpatient consent isnot required—what
wecallmandatorydisclosures—is amatter of
provincial variation. But agoodexample iswhen
theprovincial law requires adentist toprovide
patient health information in response toa
summonsor acourt order. Imight add that even
if it appears that thedisclosure ismandatory,
it’s agood idea for thedentist toget external
legal assistance todetermine thevalidityof the
document andwhether theyhave tocomplywith
it todisclose thepatient health information.
Whenadentistreceivesanotice from
an insurancecompanyrequestingmore
information for thepurposesofanaudit,
should thedentistdisclose that information?
I’veheard fromdentists that thenoticemight say
something like, “Wehaveobtainedconsent from
eachmember authorizing thecollection, useand
disclosureof their personal information.”Although
the insurancecompanymayhaveconsent to
collect andusepatient health information, this
doesn’t relieve thedentist from theneed to
haveapatient’s express consent todisclose the
information. Although there is aconsent on the
claim formor in thedentist’s files, in thecase
of electronicCDAnet claims, theseconsentsdo
not necessarilycover disclosureof additional
information thatmaybe requested, suchas
appointment records,medical history, etc. The
best practice is toobtainwrittenconsent from the
patient for anydisclosures for purposesother than
providinghealthcare.
Whatare theconsequencesofnotcomplying
withprivacy legislation?
Theconsequences arechangingand they’re
becomingmore serious. For themost part, if an
individual isnot satisfiedwith thewayadentist has
managed their health information, theycanmakea
complaint to theprovincial privacy regulatorwho,
inmanycases, has theauthority towriteanorder
that determines theoutcomeof thecomplaint. For
example, if the regulator finds that theallegations
are substantiated, theordermay, for example,
require thedentist to stopmakingadisclosure, or
improvehisor her information securitypractices.
Noneof theCanadian legislationprovidesprivacy
regulatorswith theability to issuefines.
However, theremaybeanew requirement to
provide the regulatorycollegewith theorder
madeagainst ahealthprofessional—we’re seeing
thisnow inabill that’s currentlybeingconsidered
by theOntario legislature. This is certainlyan
important considerationbecause the regulatory
collegehas theability to restrict your practiceand
livelihood.
a
Q
Q
Q
Q
At the end of the day, dentistsmaintain legal responsibility for those individuals
who require access to personal health information to provide services to patients
onbehalf of the dentist.
