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This version is current as of October 29, 2014.
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C.C.S.M. c. P33.5

The Personal Health Information Act

(Assented to June 28, 1997)

WHEREAS health information is personal and sensitive and its confidentiality must be protected so that individuals are not afraid to seek health care or to disclose sensitive information to health professionals;

AND WHEREAS individuals need access to their own health information as a matter of fairness, to enable them to make informed decisions about health care and to request the correction of inaccurate or incomplete information about themselves;

AND WHEREAS a consistent approach to personal health information is necessary because many persons other than health professionals now obtain, use and disclose personal health information in different contexts and for different purposes;

AND WHEREAS clear and certain rules for the collection, use and disclosure of personal health information are an essential support for electronic health information systems that can improve both the quality of patient care and the management of health care resources;

S.M. 2008, c. 41, s. 2.

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTRODUCTORY PROVISIONS

Definitions

1(1)        In this Act,

"adjudicator" means the Information and Privacy Adjudicator appointed under The Freedom of Information and Protection of Privacy Act; (« arbitre »)

"court", for the purpose of an appeal under section 49 or 50, means the Court of Queen's Bench; (« tribunal »)

"demographic information" means an individual's name, address, telephone number and e-mail address; (« renseignements signalétiques »)

"enactment" means an Act or regulation; (« texte »)

"health" means the condition of being sound in mind, body and spirit; (« santé »)

"health care" means any care, service or procedure

(a) provided to diagnose, treat or maintain an individual's health,

(b) provided to prevent disease or injury or promote health, or

(c) that affects the structure or a function of the body,

and includes the sale or dispensing of a drug, appliance, device, equipment or other item pursuant to a prescription; (« soins de santé »)

"health care facility" means

(a) a hospital,

(b) a personal care home,

(c) a psychiatric facility,

(d) a medical clinic,

(e) a laboratory,

(f) CancerCare Manitoba, and

(g) a community health centre or other facility in which health care is provided and that is designated in the regulations; (« établissement de soins de santé »)

"health professional" means a person who is licensed or registered to provide health care under an Act of the Legislature or who is a member of a class of persons designated as health professionals in the regulations; (« professionnel de la santé »)

"health services agency" means an organization that provides health care such as community or home-based health care pursuant to an agreement with another trustee; (« organisme de services de santé »)

"information manager" means a person or body that

(a) processes, stores or destroys personal health information for a trustee, or

(b) provides information management or information technology services to a trustee; (« gestionnaire de l'information »)

"institutional research review committee" means a committee formally established by a health care facility, university or similar body

(a) to review the efficacy and scientific and ethical value of a research proposal involving human subjects or involving the review of records containing personal health information, and

(b) to ensure that the person proposing the research has adequate safeguards in place to protect the confidentiality of personal health information; (« comité de révision de la recherche institutionnelle »)

"maintain", in relation to personal health information, means to have custody or control of the information; (« maintenir »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"Ombudsman" means the Ombudsman appointed under The Ombudsman Act; (« ombudsman »)

"personal health information" means recorded information about an identifiable individual that relates to

(a) the individual's health, or health care history, including genetic information about the individual,

(b) the provision of health care to the individual, or

(c) payment for health care provided to the individual,

and includes

(d) the PHIN and any other identifying number, symbol or particular assigned to an individual, and

(e) any identifying information about the individual that is collected in the course of, and is incidental to, the provision of health care or payment for health care; (« renseignements médicaux personnels »)

"PHIN" means the personal health identification number assigned to an individual by the minister to uniquely identify the individual for health care purposes; (« NIMP »)

"public body" means a public body as defined in The Freedom of Information and Protection of Privacy Act, and for the purpose of this definition, the definitions of "department", "educational body", "government agency", ''health care body", "local government body" and "local public body" in that Act apply; (« organisme public »)

"record" or "recorded information" means a record of information in any form, and includes information that is written, photographed, recorded or stored in any manner, on any storage medium or by any means, including by graphic, electronic or mechanical means, but does not include electronic software or any mechanism that produces records; (« document » ou « renseignement enregistré »)

"representative", in relation to an individual, means a person referred to in section 60; (« représentant »)

"trustee" means a health professional, health care facility, public body, or health services agency that collects or maintains personal health information. (« dépositaire »)

Reference to "Act" includes regulations

1(2)        A reference to "this Act" includes the regulations made under this Act.

S.M. 2001, c. 18, s. 18; S.M. 2004, c. 36, s. 2; S.M. 2008, c. 41, s. 3; S.M. 2009, c. 15, s. 243.

Purposes of this Act

2           The purposes of this Act are

(a) to provide individuals with a right to examine and receive a copy of personal health information about themselves maintained by a trustee, subject to the limited and specific exceptions set out in this Act;

(b) to provide individuals with a right to request corrections to personal health information about themselves maintained by a trustee;

(c) to establish rules governing the collection, use, disclosure, retention and destruction of personal health information in a manner that recognizes

(i) the right of individuals to privacy of their personal health information, and

(ii) the need for health professionals to collect, use and disclose personal health information in order to provide health care to individuals;

(d) to control the collection, use and disclosure of an individual's PHIN; and

(e) to provide for an independent review of the decisions of trustees under this Act.

S.M. 2008, c. 41, s. 4.

Application of this Act

3           This Act does not apply to statistical health information, or to health information that does not, either by itself or when combined with other information available to the holder, allow an individual to be readily identified.

S.M. 2008, c. 41, s. 5.

Relationship to other Acts

4(1)        A trustee shall refuse to permit personal health information to be examined or copied under Part 2 of this Act to the extent that disclosure of the information is prohibited or restricted by another enactment of Manitoba.

Conflict with another Act

4(2)        If a provision of Part 3 of this Act is inconsistent or in conflict with a provision of another enactment, the provision of this Act prevails unless the other enactment more completely protects the confidentiality of personal health information.

Mental Health Act prevails

4(3)        For greater certainty, the provisions of The Mental Health Act prevail over this Act.

PART 2

ACCESS TO PERSONAL HEALTH INFORMATION

RIGHT TO EXAMINE AND COPY PERSONAL HEALTH INFORMATION

Right to examine and copy information

5(1)        Subject to this Act, an individual has a right, on request, to examine and receive a copy of his or her personal health information maintained by a trustee.

How to make a request

5(2)        A request must be made to the trustee who the individual believes maintains the personal health information.

Trustee may require written request

5(3)        A trustee may require a request to be in writing.

Trustee to respond promptly

6(1)        A trustee shall respond to a request as promptly as required in the circumstances but not later than

(a) 24 hours after receiving it, if the trustee is a hospital and the information is about health care currently being provided to an in-patient;

(b) 72 hours after receiving it, if the information is about health care the trustee is currently providing to a person who is not a hospital in-patient; and

(c) 30 days after receiving it in any other case, unless the request is transferred to another trustee under section 8.

Information provided in 24 hours

6(1.1)      In the circumstance mentioned in clause (1)(a) (hospital patient), the trustee is required only to make the information available for examination and need not, despite section 7, provide a copy or an explanation.

Duty to assist an individual

6(2)        A trustee shall make every reasonable effort to assist an individual making a request and to respond without delay, openly, accurately and completely.

Failure to respond

6(3)        The failure of a trustee to respond to a request within the time frame required under subsection (1) is to be treated as a decision to refuse to permit the personal health information to be examined or copied.

S.M. 2008, c. 41, s. 6.

Trustee's response

7(1)        In responding to a request, a trustee shall do one of the following:

(a) make the personal health information available for examination and provide a copy, if requested, to the individual;

(b) inform the individual in writing if the information does not exist or cannot be found; or

(c) inform the individual in writing that the request is refused, in whole or in part, for a specified reason described in section 11, and advise the individual of the right to make a complaint about the refusal under Part 5.

Duty to provide an explanation

7(2)        On request, a trustee shall provide an explanation of any term, code or abbreviation used in the personal health information.

Information in electronic form

7(3)        When a request is made for personal health information that a trustee maintains in electronic form, the trustee shall produce a record of the information for the individual in a form usable by the individual, if it can be produced using the trustee's normal computer hardware and software and technical expertise.

Transferring a request to another trustee

8(1)        Within seven days after receiving a request, a trustee may transfer it to another trustee if

(a) the personal health information is maintained by the other trustee; or

(b) the other trustee was the first to collect the personal health information.

Response within 30 days after transfer

8(2)        A trustee who transfers a request under subsection (1) shall notify the individual of the transfer as soon as possible, and the trustee to whom the request is transferred shall respond to it as promptly as required in the circumstances but no later than 30 days after receiving it.

Trustee must take precautions about release

9           A trustee

(a) shall not permit personal health information to be examined or copied without being satisfied as to the identity of the individual making the request; and

(b) shall take reasonable steps to ensure that any personal health information intended for an individual is received only by that individual.

Notice of right to access information

9.1         In accordance with the regulations, a trustee must take reasonable steps to inform individuals

(a) of their right to examine and receive a copy of their personal health information that the trustee maintains; and

(b) about how they can exercise that right.

S.M. 2008, c. 41, s. 7.

Fees

10          A trustee may charge a reasonable fee for permitting examination of personal health information and providing a copy, but the fee must not exceed the amount provided for in the regulations.

REASONS FOR REFUSING ACCESS

Reasons for refusing access

11(1)       A trustee is not required to permit an individual to examine or copy his or her personal health information under this Part if

(a) knowledge of the information could reasonably be expected to endanger the health or safety of the individual or another person;

(b) disclosure of the information would reveal personal health information about another person who has not consented to the disclosure;

(c) disclosure of the information could reasonably be expected to identify a third party, other than another trustee, who supplied the information in confidence under circumstances in which confidentiality was reasonably expected;

(d) the information was compiled and is used solely

(i) for the purpose of peer review by health professionals,

(ii) for the purpose of review by a standards committee established to study or evaluate health care practice in a health care facility or health services agency,

(iii) for the purpose of a body with statutory responsibility for the discipline of health professionals or for the quality or standards of professional services provided by health professionals, or

(iv) for the purpose of risk management assessment; or

(e) the information was compiled principally  in anticipation of, or for use in, a civil, criminal or quasi-judicial proceeding.

Severance of information

11(2)       A trustee who refuses to permit personal health information to be examined or copied under subsection (1) shall, to the extent possible, sever the personal health information that cannot be examined or copied and permit the individual to examine and receive a copy of the remainder of the information.

S.M. 2004, c. 36, s. 3.

CORRECTION OF HEALTH INFORMATION

Right to request a correction

12(1)       For purposes of accuracy or completeness, an individual may request a trustee to correct any personal health information that the individual may examine and copy under this Part.

Written request

12(2)       A request must be in writing.

Trustee's response

12(3)       As promptly as required in the circumstances but no later than 30 days after receiving a request, the trustee shall do one of the following:

(a) make the requested correction by adding the correcting information to the record of the personal health information in such a manner that it will be read with and form part of the record or be adequately cross-referenced to it;

(b) inform the individual if the personal health information no longer exists or cannot be found;

(c) if the trustee does not maintain the personal health information, so inform the individual and provide him or her with the name and address, if known, of the trustee who maintains it; or

(d) inform the individual in writing of the trustee's refusal to correct the record as requested, the reason for the refusal, and the individual's right to add a statement of disagreement to the record and to make a complaint about the refusal under Part 5.

When a trustee refuses to make a correction

12(4)       A trustee who refuses to make a correction that is requested under this section shall

(a) permit the individual to file a concise statement of disagreement stating the correction requested and the reason for the correction; and

(b) add the statement of disagreement to the record in such a manner that it will be read with and form part of the record or be adequately cross-referenced to it.

Notifying others of a correction or statement of disagreement

12(5)       When a trustee makes a correction or adds a statement of disagreement under this section, the trustee shall, when practicable, notify any other trustee or person to whom the personal health information has been disclosed during the year before the correction was requested about the correction or statement of disagreement.  A trustee who receives such a notice shall make the correction or add the statement of disagreement to any record of that personal health information that the trustee maintains.

No fee

12(6)       A trustee shall not charge a fee in connection with a request for a correction made under this section.

PART 3

PROTECTION OF PRIVACY

DIVISION 1

RESTRICTIONS ON COLLECTION AND RETENTION OF INFORMATION

COLLECTION OF INFORMATION

Restrictions on collection

13(1)       A trustee shall not collect personal health information about an individual unless

(a) the information is collected for a lawful purpose connected with a function or activity of the trustee; and

(b) the collection of the information is necessary for that purpose.

Limit on amount of information collected

13(2)       A trustee shall collect only as much personal health information about an individual as is reasonably necessary to accomplish the purpose for which it is collected.

Source of information

14(1)       Whenever possible, a trustee shall collect personal health information directly from the individual the information is about.

Exceptions

14(2)       Subsection (1) does not apply if

(a) the individual has authorized another method of collection;

(b) collection of the information directly from the individual could reasonably be expected to endanger the health or safety of the individual or another person;

(c) collection of the information is in the interest of the individual and time or circumstances do not permit collection directly from the individual;

(c.1) the information may be disclosed to the trustee under subsection 22(2);

(d) collection of the information directly from the individual could reasonably be expected to result in inaccurate information being collected;

(d.1) the information is collected for the purpose of

(i) compiling an accurate family or genetic health history of the individual, or

(ii) determining or verifying the individual's eligibility to participate in a program of or receive a benefit or service from the trustee or from the government, and is collected in the course of processing an application made by or on behalf of the individual; or

(e) another method of collection is authorized or required by a court order or an enactment of Manitoba or Canada.

S.M. 2004, c. 36, s. 3; S.M. 2008, c. 41, s. 8; S.M. 2010, c. 33, s. 46; S.M. 2011, c. 35, s. 37.

Notice of collection practices

15(1)       A trustee who collects personal health information directly from the individual the information is about shall, before it is collected or as soon as practicable afterwards, take reasonable steps to inform the individual

(a) of the purpose for which the information is being collected; and

(b) if the trustee is not a health professional, how to contact an officer or employee of the trustee who can answer the individual's questions about the collection.

Exception if information already provided

15(2)       A trustee need not comply with subsection (1) if the trustee has recently provided the individual with the information referred to in that subsection about the collection of the same or similar personal health information for the same or a related purpose.

ACCURACY OF INFORMATION

Duty to ensure accuracy of information

16          Before using or disclosing personal health information, a trustee shall take reasonable steps to ensure that the information is accurate, up to date, complete and not misleading.

RETENTION AND DESTRUCTION OF INFORMATION

Retention and destruction policy

17(1)       A trustee shall establish a written policy concerning the retention and destruction of personal health information and shall comply with that policy.

Compliance with regulations

17(2)       A policy under subsection (1) must conform with any requirements of the regulations.

Method of destruction must protect privacy

17(3)       In accordance with any requirements of the regulations, a trustee shall ensure that personal health information is destroyed in a manner that protects the privacy of the individual the information is about.

17(4)       [Repealed] S.M. 2008, c. 41, s. 9.

Application of this section

17(5)       This section does not override or modify any requirement in an enactment of Manitoba or Canada concerning the retention or destruction of records maintained by public bodies.

S.M. 2008, c. 41, s. 9.

DIVISION 2

SECURITY SAFEGUARDS

Duty to adopt security safeguards

18(1)       In accordance with any requirements of the regulations, a trustee shall protect personal health information by adopting reasonable administrative, technical and physical safeguards that ensure the confidentiality, security, accuracy and integrity of the information.

Specific safeguards

18(2)       Without limiting subsection (1), a trustee shall

(a) implement controls that limit the persons who may use personal health information maintained by the trustee to those specifically authorized by the trustee to do so;

(b) implement controls to ensure that personal health information maintained by the trustee cannot be used unless

(i) the identity of the person seeking to use the information is verified as a person the trustee has authorized to use it, and

(ii) the proposed use is verified as being authorized under this Act;

(c) if the trustee uses electronic means to request disclosure of personal health information or to respond to requests for disclosure, implement procedures to prevent the interception of the information by unauthorized persons; and

(d) when responding to requests for disclosure of personal health information, ensure that the request contains sufficient detail to uniquely identify the individual the information is about.

Additional safeguards for information in electronic form

18(3)       A trustee who maintains personal health information in electronic form shall implement any additional safeguards for such information required by the regulations.

Safeguards for sensitive information

19          In determining the reasonableness of security safeguards required under section 18, a trustee shall take into account the degree of sensitivity of the personal health information to be protected.

DIVISION 2.1

CONSENT RE PERSONAL HEALTH INFORMATION

Elements of consent

19.1(1)     When this Act requires an individual's consent for the use or disclosure of personal health information, the consent must

(a) relate to the purpose for which the information is used or disclosed;

(b) be knowledgeable;

(c) be voluntary; and

(d) not be obtained through misrepresentation.

Knowledgeable consent

19.1(2)     Consent is knowledgeable if the individual who gives it has been provided with the information that a reasonable person in the same circumstances would need in order to make a decision about the use or disclosure of the information.

Express or implied consent

19.1(3)     Consent may be express or implied.

Exception

19.1(4)     Consent must be express, and not implied, if

(a) a trustee makes a disclosure to a person that is not a trustee; or

(b) a trustee makes a disclosure to another trustee, but the disclosure is not for the purpose of providing health care or assisting in providing health care.

Express consent need not be written

19.1(5)     An express consent need not be in writing.

Express consent can be relied on

19.1(6)     A trustee (other than the trustee who obtained the consent) may act in accordance with an express written consent or a record of an express consent having been given without verifying that the consent meets the requirements of subsection (1), unless he or she has reason to believe that the requirements have not been met.

Consent with conditions

19.1(7)     An individual may give consent subject to conditions.  But a condition that has the effect of restricting or prohibiting a trustee from recording personal health information is not effective if the recording is required by law or by established standards of professional or institutional practice.

S.M. 2008, c. 41, s. 10.

Consent may be withdrawn

19.2        An individual who has given consent, whether express or implied, to the use or disclosure of personal health information may withdraw it by notifying the trustee.  A withdrawal does not have retroactive effect.

S.M. 2008, c. 41, s. 10.

DIVISION 3

RESTRICTIONS ON USE AND DISCLOSURE OF INFORMATION

GENERAL DUTIES OF TRUSTEES

General duty of trustees re use and disclosure

20(1)       A trustee shall not use or disclose personal health information except as authorized under this Division.

Limit on amount of information used or disclosed

20(2)       Every use and disclosure by a trustee of personal health information must be limited to the minimum amount of information necessary to accomplish the purpose for which it is used or disclosed.

Limit on the trustee's employees

20(3)       A trustee shall limit the use of personal health information it maintains to those of its employees and agents who need to know the information to carry out the purpose for which the information was collected or received or to carry out a purpose authorized under section 21.

S.M. 2008, c. 41, s. 11.

RESTRICTIONS ON USE OF INFORMATION

Restrictions on use of information

21          A trustee may use personal health information only for the purpose for which it was collected or received, and shall not use it for any other purpose, unless

(a) the other purpose is directly related to the purpose for which the personal health information was collected or received;

(b) the individual the personal health information is about has consented to the use;

(c) use of the information is necessary to prevent or lessen a serious and immediate threat to

(i) the health or safety of the individual the information is about or another individual, or

(ii) public health or public safety;

(c.1) the information is demographic information about an individual, or is his or her PHIN, and is used to

(i) confirm eligibility for health care or payment for health care, or

(ii) verify the accuracy of the demographic information or PHIN;

(c.2) the information is demographic information about an individual and is used to collect a debt the individual owes to the trustee, or to the government if the trustee is a department;

(d) the trustee is a public body or a health care facility and the personal health information is used

(i) to deliver, monitor or evaluate a program that relates to the provision of health care or payment for health care by the trustee, or

(ii)  for research and planning that relates to the provision of health care or payment for health care by the trustee;

(e) the purpose is one for which the information may be disclosed to the trustee under section 22; or

(f) use of the information is authorized by an enactment of Manitoba or Canada.

S.M. 2004, c. 36, s. 3; S.M. 2008, c. 41, s. 12.

RESTRICTIONS ON DISCLOSURE OF INFORMATION

Individual's consent to disclosure

22(1)       Except as permitted by subsection (2), a trustee may disclose personal health information only if

(a) the disclosure is to the individual the personal health information is about or his or her representative; or

(b) the individual the information is about has consented to the disclosure.

Disclosure without individual's consent

22(2)       A trustee may disclose personal health information without the consent of the individual the information is about if the disclosure is

(a) to a person who is or will be providing or has provided health care to the individual, to the extent necessary to provide health care to the individual, unless the individual has instructed the trustee not to make the disclosure;

(b) to any person if the trustee reasonably believes that the disclosure is necessary to prevent or lessen a serious and immediate threat to

(i) the health or safety of the individual the information is about or another individual, or

(ii) public health or public safety;

(c) for the purpose of

(i) contacting a relative or friend of an individual who is injured, incapacitated or ill,

(ii) assisting in identifying a deceased individual, or

(iii) informing the representative or a relative of a deceased individual, or any other person it is reasonable to inform in the circumstances, of the individual's death;

(d) to a relative of a deceased individual if the trustee reasonably believes that disclosure is not an unreasonable invasion of the deceased's privacy;

(e) required for

(i) the purpose of peer review by health professionals,

(ii) the purpose of review by a standards committee established to study or evaluate health care practice in a health care facility or health services agency,

(iii) the purpose of a body with statutory responsibility for the discipline of health professionals or for the quality or standards of professional services provided by health professionals, or

(iv) the purpose of risk management assessment;

(f) in accordance with subsection 22(2.2) (disclosure to another government), section 23 (disclosure to patient's family), section 23.1 (disclosure to religious organization), section 23.2 (disclosure for fundraising), section 24 or 24.1 (disclosure for health research) or section 25 (disclosure to an information manager);

(g) for the purpose of

(i) delivering, evaluating or monitoring a program of the trustee that relates to the provision of health care or payment for health care, or

(ii)  for research and planning that relates to the provision of health care or payment for health care by the trustee;

(g.1) to another trustee who requires the information to evaluate or monitor the quality of services the other trustee provides;

(g.2) for the purpose of determining or verifying the individual's eligibility for a program, service or benefit, if the information disclosed is limited to the individual's demographic information;

(g.3) to another trustee for the purpose of de-identifying the personal health information;

(h) to a computerized health information network established by a body specified in subsection (2.1), in which personal health information is recorded for the purpose of

(i) providing health care,

(ii) facilitating the evaluation or monitoring of a program that relates to the provision of health care or payment for health care, or

(iii) facilitating research and planning that relates to the provision of health care or payment for health care;

(i) to the government, another public body, or the government of another jurisdiction or an agency of such a government, to the extent necessary to obtain payment for health care provided to the individual the personal health information is about;

(i.1) for the purpose of collecting a debt owed by the individual to the trustee, or to the government if the trustee is a department, if the information disclosed is limited to demographic information;

(j) to a person who requires the personal health information to carry out an audit for or provide legal services to a trustee, if the trustee reasonably believes that the person will not use or disclose the personal health information for any other purpose and will take appropriate steps to protect it;

(k) required in anticipation of or for use in a civil or quasi-judicial proceeding to which the trustee is a party, or to which the government is a party if the trustee is a department;

(k.1) required in anticipation of or for use in the prosecution of an offence;

(l) required to comply with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of the personal health information, or with a rule of court concerning the production of the personal health information;

(l.1) required by police to assist in locating an individual reported as being a missing person, if the information disclosed is limited to demographic information;

(m) for the purpose of

(i) an investigation under or the enforcement of an enactment of Manitoba respecting payment for health care, or

(ii) an investigation or enforcement respecting a fraud relating to payment for health care;

(n) for the purpose of complying with an arrangement or agreement entered into under an enactment of Manitoba or Canada; or

(o) authorized or required by an enactment of Manitoba or Canada.

Computerized health information network

22(2.1)     For the purpose of clause (2)(h), a computerized health information network may be established by

(a) the government or a government agency;

(b) the Government of Canada or of another province or territory or an agency of such a government;

(c) an organization representing one or more governments; or

(d) a trustee that is a public body specified in the regulations.

Disclosure by minister to another government

22(2.2)     The minister or his or her designate may disclose an individual's personal health information to the government of another jurisdiction in Canada, or an agency of such a government, without the individual's consent, if

(a)  the individual the information is about normally resides in the other jurisdiction;

(b) the information is about health care he or she received in Manitoba; and

(c) the government of the other jurisdiction requires the information for the purpose of monitoring or evaluating the extra-jurisdictional provision of health care to its residents.

Limit on disclosure

22(3)       A trustee may disclose information under subsection (2), (2.1) or (2.2) only to the extent the recipient needs to know the information.

S.M. 2004, c. 36, s. 3; S.M. 2008, c. 41, s. 13.

Disclosure to family about patient's health care

23(1)       If an individual is a patient or resident in a health care facility, or is receiving health care services from a trustee at home, the trustee may disclose personal health information about the individual to an immediate family member, or to anyone else with whom the individual is known to have a close personal relationship, if

(a) the disclosure is about health care currently being provided;

(b) the disclosure is made in accordance with good medical or other professional practice; and

(c) the trustee reasonably believes the disclosure to be acceptable to the individual or his or her representative.

Timely disclosure to family

23(1.1)     When an immediate family member, or someone else with whom the patient or resident is known to have a close personal relationship, asks a trustee to disclose information under subsection (1), the trustee must disclose the information as soon as reasonably possible but not later than

(a) 24 hours after the request is made, if the trustee is a hospital and the information is about health care currently being provided to an in-patient; or

(b) 72 hours after the request is made, in any other case;

as long as the requirements of subsection (1) are met.

Disclosure about patient's condition

23(2)       As long as disclosure is not contrary to the express request of the individual or his or her representative, a trustee may disclose to any person the following information about an individual who is a patient or resident of a health care facility:

(a) the individual's name;

(b) the individual's general health status, described as critical, poor, fair, stable or satisfactory, or in terms indicating similar conditions;

(c) the individual's location, unless disclosure of the location would reveal specific information about the health of the individual.

No disclosure if possible harm

23(3)       A trustee shall not disclose personal health information under this section if the trustee has reason to believe that the disclosure might lead to harm to the individual the personal health information is about.

S.M. 2004, c. 36, s. 4; S.M. 2008, c. 41, s. 14.

Disclosure to religious organization

23.1(1)     In the case of an individual who is a patient in a hospital or is a resident of a personal care home, the hospital or personal care home may disclose

(a) the individual's name and general health status; and

(b) the individual's location, unless disclosing the location would reveal specific information about the individual's health;

to a representative of a religious organization.

Conditions

23.1(2)     A disclosure may be made under subsection (1) only if

(a) the trustee has notified the individual in writing that the trustee might disclose personal health information about the individual to a representative of a religious organization, or has posted a notice to that effect where it is likely to come to the individual's attention;

(b) the notice is in a form that the individual can reasonably be expected to understand; and

(c) the individual has been given a reasonable opportunity to object to the disclosure and has not done so.

S.M. 2008, c. 41, s. 15.

Disclosure for fundraising

23.2(1)     If a trustee is

(a) a hospital or personal care home; or

(b) a health care facility or health services agency designated in the regulations for the purpose of this section;

it may disclose to a charitable fundraising foundation with which it is affiliated the name and mailing address of an individual who has been a patient of the hospital, who is or has been a resident of the personal care home, or who is receiving or has received services from the facility or agency.

Conditions

23.2(2)     The trustee may make a disclosure under subsection (1) only if

(a) the trustee has notified the individual in writing that the trustee might disclose personal health information about the individual to a charitable fundraising foundation, or has posted a notice to that effect where it is likely to come to the individual's attention;

(b) the notice is in a form that the individual can reasonably be expected to understand;

(c) the individual has been given a reasonable opportunity to object to the disclosure and has not done so; and

(d) the trustee and the foundation comply with any additional requirements specified in the regulations.

S.M. 2008, c. 41, s. 15.

HEALTH RESEARCH

Disclosure for health research

24(1)       A trustee may disclose personal health information to a person conducting health research if the research has been approved under this section.

Who may give an approval

24(2)       An approval may be given by

(a) the health information privacy committee established under section 59, if the personal health information is maintained by the government or a government agency; and

(b) an institutional research review committee, if the personal health information is maintained by a trustee other than the government or a government agency.

Conditions for approval

24(3)       An approval may be given under this section only if the health information privacy committee or the institutional research review committee, as the case may be, has determined that

(a) the research is of sufficient importance to outweigh the intrusion into privacy that would result from the disclosure of personal health information;

(b) the research purpose cannot reasonably be accomplished unless the personal health information is provided in a form that identifies or may identify individuals;

(c) it is unreasonable or impractical for the person proposing the research to obtain consent from the individuals the personal health information is about; and

(d) the research proposal contains

(i) reasonable safeguards to protect the confidentiality and security of the personal health information, and

(ii) procedures to destroy or remove, at the earliest opportunity consistent with the purposes of the research, any information that, either by itself or when combined with other information available to the holder, allows individuals to be readily identified.

Agreement required

24(4)       An approval under this section is conditional on the person proposing the research project entering into an agreement with the trustee, in accordance with the regulations, in which the person agrees

(a) not to publish the personal health information requested in a form that could reasonably be expected to identify the individuals concerned;

(b) to use the personal health information requested solely for the purposes of the approved research project; and

(c) to ensure that the research project complies with the safeguards and procedures described in clause (3)(d).

Limitation for projects requiring direct contact with individuals

24(5)       If a research project will require direct contact with individuals, a trustee shall not disclose personal health information about those individuals under this section without first obtaining their consent.  However, the trustee need not obtain their consent if the information consists only of the individuals' names and addresses.

S.M. 2008, c. 41, s. 16.

Disclosure to health research organization

24.1(1)     A trustee may disclose personal health information to a health research organization for a purpose mentioned in subsection (2) only if the organization is prescribed in the regulations and meets the requirements of this section.

Purposes

24.1(2)     A trustee may disclose personal health information to a prescribed organization under this section for any of the following purposes:

(a) analyzing the health status of the population;

(b) identifying and describing patterns of illness;

(c) describing and analyzing how health services are used;

(d) analyzing the availability and adequacy of human resources required to provide health services;

(e) measuring health system performance;

(f) health system planning.

Protecting individual privacy

24.1(3)     A prescribed health research organization must

(a) use personal health information disclosed to it under this section for the purpose for which it was disclosed and no other;

(b) have in place policies and procedures that protect the privacy of the individuals whose information is disclosed to it and that ensure the security and integrity of the information; and

(c) as soon as reasonably possible having regard to the use of the information, remove any information that, either by itself or when combined with other information available to the organization, allows the identity of the individuals to be readily ascertained.

Agreement required

24.1(4)     Before disclosing personal health information to a prescribed health research organization, the trustee must enter into an agreement with the organization that includes any requirements specified in the regulations.

Duties of health research organization

24.1(5)     A prescribed health research organization must

(a) comply with the terms of the agreement entered into under subsection (4); and

(b) if the organization is not a trustee, comply with the same requirements concerning the protection, retention and destruction of personal health information that the trustee is required to comply with under this Act.

S.M. 2008, c. 41, s. 17.

DIVISION 4

MISCELLANEOUS REQUIREMENTS

INFORMATION MANAGERS

Trustee may provide information to an information manager

25(1)       A trustee may provide personal health information to an information manager for the purpose of processing, storing or destroying it or providing the trustee with information management or information technology services.

Restrictions on use

25(2)        An information manager may use personal health information provided to it under this section only for the purposes and activities mentioned in subsection (1), which must be purposes and activities that the trustee itself may undertake.

Agreement required

25(3)       A trustee who wishes to provide personal health information to an information manager under this section must enter into a written agreement with the information manager that provides for the protection of the personal health information against such risks as unauthorized access, use, disclosure, destruction or alteration, in accordance with the regulations.

Information manager must comply with Act

25(4)       An information manager shall comply with

(a) the same requirements concerning the protection, retention and destruction of personal health information that the trustee is required to comply with under this Act; and

(b) the duties imposed on the information manager under the agreement entered into under subsection (3).

Information deemed to be maintained by the trustee

25(5)       Personal health information that has been provided to an information manager under an agreement described in subsection (3) is deemed to be maintained by the trustee for the purposes of this Act.

PHIN

Production and use of PHIN

26(1)       No person other than a trustee may require the production of another person's PHIN or collect or use another person's PHIN.

Exceptions

26(2)       Despite subsection (1), a person may collect or use another person's PHIN

(a) for purposes related to the provision of publicly funded health care to the other person;

(b) for purposes of a health research project approved under section 24; or

(c) in circumstances permitted by the regulations.

PROHIBITION ON SALE OF INFORMATION

Prohibition on sale of personal health information

27(1)       No trustee shall sell or otherwise dispose of or disclose for consideration personal health information unless

(a) it is essential to facilitate the sale or disposition of the practice of a health professional or the business of a health care facility or health services agency as a going concern; and

(b) subject to subsection (2), the sale or disposition is to another trustee.

Exception for pharmacies

27(2)       Clause(1)(b) does not apply to a change in ownership of a pharmacy in compliance with The Pharmaceutical Act.

PART 4

POWERS AND DUTIES OF THE OMBUDSMAN

General powers and duties

28          In addition to the Ombudsman's powers and duties under Part 5 respecting complaints, the Ombudsman may

(a) conduct investigations and audits and make recommendations to monitor and ensure compliance with this Act;

(b) inform the public about this Act;

(c) receive comments from the public about matters concerning the confidentiality of personal health information or access to that information;

(d) comment on the implications for access to or confidentiality of personal health information of proposed legislative schemes or programs or practices of trustees;

(e) comment on the implications for the confidentiality of personal health information of

(i) using or disclosing personal health information for record linkage, or

(ii) using information technology in the collection, storage, use or transfer of personal health information;

(f) consult with any person with experience or expertise in any matter related to the purposes of this Act; and

(g) engage in or commission research into any matter related to the purposes of this Act.

Evidence Act powers

29(1)       The Ombudsman has all the powers and protections of a commissioner under Part V of The Manitoba Evidence Act when conducting an investigation under this Act.

Production of records

29(2)       The Ombudsman may require any record maintained by a trustee that the Ombudsman considers relevant to an investigation to be produced to the Ombudsman and may examine any information in a record, including personal health information.

Records produced within 14 days

29(3)       A trustee shall produce to the Ombudsman within 14 days any record or a copy of a record required to be produced under this section.

Examination of record on site

29(4)       If a trustee is required to produce a record under this section and it is not practicable to make a copy of it, the trustee may require the Ombudsman to examine the original at its site.

Production required despite other laws

29(5)       No person who is required by the Ombudsman to give information or evidence or to produce a record may refuse to do so on the basis of

(a) an enactment that requires or permits a person to refuse to disclose information; or

(b) any privilege of the law of evidence.

Right of entry

30          Despite any other enactment or any privilege of the law of evidence, in exercising powers or performing duties under this Act, the Ombudsman has the right,

(a) during regular business hours,  to enter any premises of a trustee in which the Ombudsman believes on reasonable grounds there are records relevant to an investigation and examine and make copies of them; and

(b) to converse in private with any officer, employee or agent of the trustee.

Investigation in private

31          The Ombudsman shall conduct every investigation in private.

Statements and reports not admissible in evidence

32(1)       Any statement or report made or opinion given by a person during an investigation by the Ombudsman, and any report or recommendation of the Ombudsman, is inadmissible as evidence in a court or in any other proceeding, except

(a) in a prosecution for perjury in respect of sworn testimony;

(b) in a prosecution for an offence under this Act;

(c) in a review conducted by the adjudicator under this Act when the Ombudsman is a party; or

(d) in an application for judicial review of an adjudicator's order under this Act.

Not compellable as witness

32(2)       The Ombudsman, and anyone acting for or under the direction of the Ombudsman, shall not be required to give evidence in a court or in any other proceeding about information that comes to the knowledge of the Ombudsman in performing duties or exercising powers under this Act.

S.M. 2008, c. 41, s. 18.

Privilege

33          Anything said, any information supplied, and any record produced by a person during an investigation by the Ombudsman under this Act is privileged in the same manner as if it were said, supplied or produced in a proceeding in a court.

S.M. 2011, c. 35, s. 37.

Ombudsman restricted as to disclosure of information

34(1)       The Ombudsman, and anyone acting for or under the direction of the Ombudsman, shall not disclose information obtained in performing duties or exercising powers under this Act, except as provided in subsections (2) to (4).

When disclosure permitted

34(2)       The Ombudsman may disclose, or may authorize anyone acting for or under the direction of the Ombudsman to disclose, information that is necessary to

(a) perform a duty or exercise a power of the Ombudsman under this Act; or

(b) establish the grounds for findings and recommendations contained in a report under this Act.

However, the Ombudsman, and anyone acting for or under the direction of the Ombudsman, shall not disclose personal health information that a trustee is authorized to refuse to disclose in response to a request made under Part 2.

Information about offences

34(3)       The Ombudsman may disclose to the Minister of Justice and Attorney General information relating to the commission of an offence under this or any other enactment of Manitoba or Canada if the Ombudsman considers there is reason to believe an offence has been committed, except that personal health information must not be disclosed without the consent of the individual the information is about.

Information relating to a prosecution or appeal

34(4)       The Ombudsman may disclose, or may authorize anyone acting for or under the direction of the Ombudsman to disclose, information for a purpose mentioned in clauses 32(1)(a) to (d), except that personal health information must not be disclosed without the consent of the individual the information is about.

S.M. 2008, c. 41, s. 19.

Delegation

35          The Ombudsman may delegate to any person on his or her staff any duty or power under this Act.

Protection from liability

36          No proceedings lie against the Ombudsman, or against any person acting for or under the direction of the Ombudsman, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty or power under this Act.

Annual report

37(1)       The Ombudsman shall make an annual report to the Legislative Assembly on the work of the Ombudsman's office in relation to this Act, including the following:

(a) the kinds of complaints received and investigations conducted under Part 5;

(b) the Ombudsman's recommendations and whether trustees have complied with the recommendations; and

(c) any other matters about access to and confidentiality of personal health information that the Ombudsman considers appropriate.

Report to be laid before Legislative Assembly

37(2)       The report shall be given to the Speaker who shall lay it before the Legislative Assembly if it is in session and if it is not in session, then within 15 days after the beginning of the next session.

Special report

37(3)       In the public interest, the Ombudsman may publish a special report relating to any matter within the scope of the powers and duties of the Ombudsman under this Act, including a report referring to and commenting on any particular matter investigated by the Ombudsman.

PART 5

COMPLAINTS

Definitions

38          In this Part,

"complaint" includes a complaint initiated by the Ombudsman under subsection 39(4); (« plainte »)

"complaint about access" means a complaint made under subsection 39(1); (« plainte concernant l'accès »)

"complaint about privacy" means a complaint made under subsection 39(2). (« plainte concernant la confidentialité »)

S.M. 2008, c. 41, s. 20.

MAKING A COMPLAINT

Right to make a complaint about access

39(1)       An individual who has made a request to examine or receive a copy of his or her personal health information in accordance with Part 2 may make a complaint to the Ombudsman about any decision, act or failure to act of the trustee that relates to the request, including but not limited to the following:

(a) a refusal by the trustee to permit the individual to examine or receive a copy of the information;

(b) a refusal by the trustee to correct personal health information;

(c) an unreasonable delay by the trustee in responding to the request;

(d) an unreasonable or unauthorized fee charged by the trustee.

Right to make a complaint about privacy

39(2)       An individual may make a complaint to the Ombudsman alleging that a trustee

(a) has collected, used or disclosed his or her personal health information contrary to this Act; or

(b) has failed to protect his or her personal health information in a secure manner as required by this Act.

Complaint in writing

39(3)       A complaint must be in writing in a form acceptable to the Ombudsman.

Ombudsman may initiate a complaint

39(4)       The Ombudsman may initiate a complaint respecting any matter about which the Ombudsman is satisfied there are reasonable grounds to investigate under this Act.

INVESTIGATION

Investigation

40(1)       Subject to section 41, on receiving a complaint the Ombudsman shall investigate it.

Informal resolution

40(2)       The Ombudsman may take any steps the Ombudsman considers appropriate to resolve a complaint informally to the satisfaction of the parties and in a manner consistent with the purposes of this Act.

Decision to not deal with a complaint

41(1)       The Ombudsman may decide not to investigate a complaint if the Ombudsman is of the opinion that

(a) the length of time that has elapsed since the date the subject matter of the complaint arose makes an investigation no longer practicable or desirable;

(b) the subject matter of the complaint is trivial or the complaint is not made in good faith or is frivolous, vexatious or an abuse of process; or

(c) the circumstances of the complaint do not require investigation.

Ombudsman may defer complaint about access

41(2)       The Ombudsman may decide not to investigate a complaint about access or may defer investigating it if

(a) the complaint concerns a health care facility or health services agency and there is an internal appeal procedure that the complainant has not used; or

(b) the complaint concerns a health professional and there is an expeditious and informal procedure for addressing such complaints available through a body that has statutory responsibility for regulating the practice of the health professional, which the complainant has not used.

Notifying the complainant

41(3)       The Ombudsman shall inform the complainant in writing if he or she decides not to investigate a complaint or defers investigating it, and give reasons for the decision.

S.M. 2008, c. 41, s. 21.

Notifying trustee and others of complaint

42          As soon as practicable after deciding to investigate a complaint, the Ombudsman shall notify the following persons about the complaint:

(a) the trustee concerned; and

(b) any other person who the Ombudsman considers should be notified, having regard to the nature of the complaint and the need to protect the complainant's privacy.

Representations to the Ombudsman

43(1)       During an investigation, the Ombudsman shall give the complainant and the trustee concerned an opportunity to make representations to the Ombudsman.  The Ombudsman may also give any other person who has been notified of the complaint under clause 42(b) an opportunity to make representations.  However, no one is entitled to be present during an investigation or to have access to or to comment on representations made to the Ombudsman by another person.

Written or oral representations

43(2)       The Ombudsman may decide whether representations are to be made orally or in writing.

Representations by counsel

43(3)       Representations may be made to the Ombudsman through counsel or an agent.

Obtaining opinion of physician or other expert

44          If a complaint about access relates to a trustee's refusal to permit personal health information to be examined or copied under clause 11(1)(a) (endangering health or safety), the Ombudsman may arrange for a physician or other expert chosen by the Ombudsman to provide an opinion on the matter.

Duty to cooperate

45          A trustee and every officer, employee and agent of a trustee shall cooperate with the Ombudsman in an investigation.

Time limit for investigation

46          An investigation must be completed and a report made under section 47 within 45 days after the complaint is made if it is about access, and within 90 days if it is about privacy, unless the Ombudsman

(a) notifies the complainant, the trustee and any other person who has made representations to the Ombudsman that the Ombudsman is extending that period; and

(b) gives an anticipated date for providing the report.

OMBUDSMAN'S REPORT

Report

47(1)       On completing an investigation, the Ombudsman shall prepare a report containing the Ombudsman's findings and any recommendations the Ombudsman considers appropriate about the complaint.

Recommendations about access

47(2)       In a report concerning a complaint about access, the Ombudsman

(a) shall indicate whether, in his or her opinion, the refusal is justified in whole or in part and, if not, shall recommend that the trustee permit the complainant to examine and receive a copy of all or part of the personal health information, as the case may require; and

(b) may recommend that the trustee modify or improve its procedures or practices concerning requests for access.

Recommendations about privacy

47(3)       In a report concerning a complaint about privacy, the Ombudsman

(a) shall indicate whether, in his or her opinion, the complaint is well founded; and

(b) may, as long as the trustee has been given an opportunity to make representations about the matter, recommend that the trustee

(i) cease or modify a specified practice of collecting, using, disclosing, retaining or destroying personal health information contrary to this Act, or

(ii) destroy a collection of personal health information that was collected in a manner contrary to this Act.

Report given to complainant and others

48(1)       The Ombudsman

(a) shall give a copy of the report to the complainant and the trustee concerned; and

(b) may give a copy of the report to any other person who has been notified of the complaint under clause 42(b) and who has made representations to the Ombudsman.

Forwarding report to professional regulatory body

48(2)       Unless the complainant objects, if the Ombudsman is of the opinion that the subject matter of a complaint should be considered by a body with statutory authority to regulate health professionals,  the Ombudsman may notify that body and give it a copy of the report.

Notice of right to appeal

48(3)       If the Ombudsman finds that a complaint about access that relates to a refusal to permit the complainant to examine or receive a copy of personal health information is unjustified, the report must advise the complainant of the right to appeal the decision to the court under section 49, and of the time limit for an appeal.

Trustee's response to the report

48(4)       If the report contains recommendations, the trustee shall, within 14 days after receiving it, send the Ombudsman a written response indicating

(a) that the trustee accepts the recommendations and describing any action the trustee has taken or proposes to take to implement them; or

(b) the reasons why the trustee refuses to take action to implement the recommendations.

Notice to the complainant

48(5)       The Ombudsman shall notify the complainant of the trustee's response without delay.  In the case of a complaint about access relating to a trustee's refusal to permit the complainant to examine or receive a copy of personal health information, the Ombudsman shall also inform the complainant

(a)  as to whether the Ombudsman intends to ask the adjudicator to review the decision under section 48.1; and

(b) that, if the Ombudsman does not ask for a review, the complainant may appeal the decision to the court under section 49 and of the time limit for an appeal.

Compliance with recommendations

48(6)       When a trustee accepts the recommendations in a report, the trustee shall comply with the recommendations within 15 days of acceptance, or within such additional period as the Ombudsman considers reasonable.

Recommendations published

48(7)       The Ombudsman must make recommendations made under this section available to the public, and may do so by publishing them on a website on the Internet.

S.M. 2008, c. 41, s. 22.

REQUEST FOR ADJUDICATOR'S REVIEW

Request for review

48.1(1)     The Ombudsman may ask the adjudicator to review a matter described in subsection (2) if he or she has given a report to the trustee under section 48 and

(a) the trustee's response indicates that it refuses to take action to implement any of the Ombudsman's recommendations;

(b) the trustee's response indicates that it accepts the Ombudsman's recommendations, but the trustee does not take action to implement them within the required time; or

(c) the trustee fails to respond as required by subsection 48(4).

Nature of request

48.1(2)     The Ombudsman may ask the adjudicator to review

(a) any decision, act or failure to act by the trustee relating to an individual's request to examine or receive a copy of his or her personal health information, or for correction of such information; or

(b) a matter relating to privacy, if the Ombudsman considers that an individual's personal health information has been collected, used or disclosed contrary to this Act.

Deadline

48.1(3)     The Ombudsman's request for review must be made

(a) within 15 days after the Ombudsman receives the trustee's response to the Ombudsman's report under subsection 48(4); or

(b) if the trustee does not respond, within 15 days after the deadline for a response has expired.

S.M. 2008, c. 41, s. 23.

Notifying others of a request

48.2        As soon as practicable after receiving a request from the Ombudsman, the adjudicator must notify the complainant, the trustee concerned and any other person who, in the adjudicator's opinion, is affected by it.

S.M. 2008, c. 41, s. 23.

CONDUCT OF REVIEW BY ADJUDICATOR

Review by adjudicator

48.3        On receiving a request from the Ombudsman, the adjudicator must conduct a review of the matter and decide all questions of fact and law arising in the course of the review.

S.M. 2008, c. 41, s. 23.

Procedures for a review

48.4(1)     The adjudicator may make rules of procedure for conducting a review under section 48.3.

Evidence

48.4(2)     The adjudicator may receive and accept any evidence and other information that he or she considers appropriate, whether on oath or by affidavit or otherwise, and whether or not it is admissible in a court of law.

Review in private

48.4(3)     A review may be conducted in private.

Powers and protections of adjudicator

48.4(4)     For the purpose of conducting a review, the adjudicator has the same powers and protections as the Ombudsman has under section 29 (Evidence Act powers and production of records).

S.M. 2008, c. 41, s. 23.

Right to make representations

48.5(1)     The complainant, the trustee concerned and any person given notice under section 48.2

(a) must be given an opportunity to make representations to the adjudicator during a review under section 48.3; and

(b) are entitled to be represented by counsel or an agent.

Procedure

48.5(2)     The adjudicator may decide

(a) whether representations are to be made orally or in writing; and

(b) whether a person is entitled to be present during representations made to the adjudicator by another person, or is entitled to have access to those representations or to comment on them.

Ombudsman as party

48.5(3)     The Ombudsman has a right to be a party in any review conducted by the adjudicator if the Ombudsman considers that the review raises an issue of public interest.

S.M. 2008, c. 41, s. 23.

Review to be completed within 90 days

48.6(1)     A review under section 48.3 must be completed within 90 days after the adjudicator receives the request from the Ombudsman, unless the adjudicator extends the period.

Extension

48.6(2)     If the 90-day period is extended, the adjudicator must notify the complainant, the trustee concerned, the Ombudsman and any other person given notice under section 48.2, and he or she must also inform them of the date by which the review is expected to be completed.

S.M. 2008, c. 41, s. 23.

Burden of proof if access denied

48.7        In a review of a decision to refuse to permit an applicant to examine or receive a copy of personal health information, it is up to the trustee to prove that the refusal is justified.

S.M. 2008, c. 41, s. 23.

ADJUDICATOR'S ORDER

Adjudicator's order

48.8(1)     Upon completing a review under section 48.3, the adjudicator must dispose of the issues by making an order under this section.

Order re access

48.8(2)     If the review concerns a complaint about access, the adjudicator may, by order,

(a) require the trustee to permit the applicant to examine or copy all of part of the personal health information, if the adjudicator determines that the trustee was not justified under section 11 in refusing to permit the applicant to do so;

(b) confirm the trustee's decision, if the adjudicator determines that the trustee was justified under section 11 in refusing to permit the applicant to examine or copy the information;

(c) confirm or reduce a fee, or order a refund of a fee, in the appropriate circumstances;

(d) confirm a decision not to correct personal health information, or specify how personal information is to be corrected.

Order re privacy

48.8(3)     If the review concerns a complaint about privacy, the adjudicator may, by order,

(a) require the trustee to cease or modify a specified practice of collecting, using, disclosing, retaining or destroying personal health information contrary to this Act;

(b) require the trustee to destroy personal health information collected in contravention of this Act.

Order may contain terms or conditions

48.8(4)     The adjudicator may specify terms or conditions in an order made under this section.

Order given to parties

48.8(5)     The adjudicator must give a copy of an order made under this section to each of the following:

(a) the complainant;

(b) the trustee concerned;

(c) the Ombudsman;

(d) any other person given notice under section 48.2.

Orders published

48.8(6)     The adjudicator must make orders made under this section available to the public, and may do so by publishing them on a website on the Internet.

S.M. 2008, c. 41, s. 23.

Duty to comply with orders

48.9(1)     Unless an application for judicial review is made under subsection (2), the trustee concerned must comply with an adjudicator's order

(a) within 30 days after being given a copy; or

(b) within any longer period specified in the order.

Judicial review

48.9(2)     An application for judicial review of an adjudicator's order must be made within 25 days after the person making the application is given a copy of the order, unless the court extends the period.

Order stayed if application made for judicial review

48.9(3)     If an application for judicial review is made under subsection (2), the adjudicator's order is stayed until the court deals with the application.

S.M. 2008, c. 41, s. 23.

GENERAL PROVISIONS RE THE ADJUDICATOR

Adjudicator to take precautions against disclosing

48.10       The adjudicator shall take every reasonable precaution, including receiving representations ex parte, conducting hearings in private and examining records in private, to avoid disclosure to the complainant of personal health information the trustee is justified in refusing to disclose under section 11.

S.M. 2008, c. 41, s. 23.

Statements made to adjudicator not admissible in evidence

48.11(1)    A statement made or an answer given by a person during a review by the adjudicator is inadmissible as evidence in court or in any other proceeding, except

(a) in a prosecution for perjury in respect of sworn testimony;

(b) in a prosecution for an offence under this Act; or

(c) in an application for judicial review or an appeal from a decision with respect to that application.

Evidence of proceeding before adjudicator

48.11(2)    Subsection (1) applies also in respect of evidence of the existence of proceedings conducted before the adjudicator.

S.M. 2008, c. 41, s. 23.

Information provided under qualified privilege

48.12       Anything said, any information supplied, and any record produced by a person during a review by the adjudicator under this Act is privileged in the same manner as if it were said, supplied or produced in a proceeding in a court.

S.M. 2008, c. 41, s. 23.

Protection from liability

48.13       No proceedings lie against the adjudicator or deputy adjudicator, or against any person acting for or under the direction of either of them, for anything done, reported or said in good faith in the exercise or performance or the intended exercise or performance of a duty or power under this Act.

S.M. 2008, c. 41, s. 23.

Annual report

48.14(1)    The adjudicator must make an annual report to the Speaker of the Assembly about the exercise of the adjudicator's responsibilities under this Act.

Tabling report in Assembly

48.14(2)    The Speaker must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

S.M. 2008, c. 41, s. 23.

APPEAL TO COURT

Appeal to court for access to record

49(1)       If a trustee has refused to permit an individual to examine or receive a copy of personal health information following a request made in accordance with Part 2, the individual may appeal the decision to the court.

Restrictions on appeal

49(2)       An appeal may be made under this section only if

(a) the individual has made a complaint about access to the Ombudsman and the Ombudsman has provided a report under section 47; and

(b) the deadline set out in subsection 48.1(3) for the Ombudsman to request the adjudicator to review the matter has expired, and the Ombudsman did not request a review.

Appeal within 30 days

49(3)       An appeal is to be made by filing an application with the court within 30 days after the deadline set out in subsection 48.1(3) expires, or within any longer period that the court may allow in special circumstances.

Trustee to be named as respondent

49(4)       The application must name the trustee involved in the complaint as the respondent.

Appeal served on trustee and Ombudsman

49(5)       The person appealing shall, within 15 days after filing the application, serve a copy of it on

(a) the trustee concerned; and

(b) the Ombudsman.

S.M. 2008, c. 41, s. 24.

Ombudsman may intervene

50          The Ombudsman has a right to intervene as a party to an appeal under section 49.

S.M. 2008, c. 41, s. 25.

Expeditious appeal

51          The court may hear evidence by affidavit and may decide the appeal in an expeditious manner.

Burden of proof

52          On an appeal, it is up to the trustee to prove that the refusal to permit the applicant to examine and receive a copy of his or her personal health information is justified.

Court may order production of records

53          Despite any other enactment of Manitoba or any privilege of the law of evidence, for the purpose of an appeal, the court may order production of any record maintained by a trustee that is relevant to the appeal for examination by the court.

Court to take precautions against disclosing

54          On an appeal,  the court shall take every reasonable precaution, including receiving representations ex parte, conducting hearings in private and examining records in private, to avoid disclosure of personal health information.

Powers of court on appeal

55          On hearing an appeal, the court may

(a) dismiss the appeal if it determines that the trustee was justified in refusing to permit the applicant to examine or receive a copy of his or her personal health information under section 11; or

(b) if it determines that the trustee was not justified in refusing to permit the applicant to examine or copy all or part of his or her personal health information under section 11,

(i) order the trustee to permit the applicant to examine and copy all or part of the information, and

(ii) make any other order that the court considers appropriate.

No further appeal except with leave

56          Except with leave of The Court of Appeal, a decision of the court under section 55 is final and binding and there is no appeal from it.

PART 6

GENERAL PROVISIONS

Privacy officer for facility and agency

57          A health care facility and a health services agency shall designate one or more of its employees as a privacy officer whose responsibilities include

(a) dealing with requests from individuals who wish to examine and copy or to correct personal health information under this Act; and

(b) generally facilitating the trustee's compliance with this Act.

Role for head of public body

58(1)       Where a trustee is a public body, any decision to be made or opinion formed under this Act by the trustee may be made or formed by the head of the public body as defined in The Freedom of Information and Protection of Privacy Act.

Delegation by head of public body

58(2)       The head of a public body may delegate to any person on the staff of the public body any responsibility referred to in subsection (1).

Health information privacy committee

59(1)       For the purpose of approving health research projects under section 24, the minister shall establish a health information privacy committee in accordance with the regulations.

Public representation

59(2)       At least 1/4 of the persons appointed to the health information privacy committee must be public representatives who are not health professionals or persons who conduct health research or employees of the government.

Responsibilities

59(3)       In addition to its responsibilities under section 24, the health information privacy committee may perform any other functions assigned to it by the minister.

Exercising rights of another person

60(1)       The rights of an individual under this Act may be exercised

(a) by any person with written authorization from the individual to act on the individual's behalf;

(b) by a proxy appointed by the individual under The Health Care Directives Act;

(c) by a committee appointed for the individual under The Mental Health Act if the committee has the power to make health care decisions on the individual's behalf;

(d) by a substitute decision maker for personal care appointed for the individual under The Vulnerable Persons Living with a Mental Disability Act if the exercise of the right relates to the powers and duties of the substitute decision maker;

(e) by the parent or guardian of an individual who is a minor, if the minor does not have the capacity to make health care decisions; or

(f) if the individual is deceased, by his or her personal representative.

If person unavailable

60(2)       If the trustee reasonably believes that no person listed in subsection (1) exists or is available, the adult person listed first in the following clauses who is readily available and willing to act may exercise the rights of an individual who lacks the capacity to do so:

(a) the individual's spouse, or common-law partner, with whom the individual is cohabiting;

(b) a son or daughter;

(c) a parent, if the individual is an adult;

(d) a brother or sister;

(e) a person with whom the individual is known to have a close personal relationship;

(f) a grandparent;

(g) a grandchild;

(h) an aunt or uncle;

(i) a nephew or niece.

Ranking

60(3)       The older or oldest of two or more relatives described in any clause of subsection (2) is to be preferred to another of those relatives.

S.M. 2008, c. 41, s. 26.

Information deemed to be maintained by trustees

61(1)       Information that is maintained by an officer, employee or member of a trustee in that person's capacity as such is deemed to be maintained by the trustee for the purposes of this Act.

Actions by employees

61(2)       Any action done by, or information disclosed to, a person employed by or in the service of a trustee in the performance of that person's duties is deemed to have been done by, or disclosed to, the trustee for the purposes of this Act.

Protection from liability

62          No action lies and no proceeding may be brought against the government or a trustee or any person acting for or under the direction of the government or a trustee for damages resulting from the use or disclosure of personal health information in circumstances where the government or the trustee or other person reasonably believed that the use or disclosure was authorized under this Act.

Offences

63(1)       Any person who

(a) wilfully makes a false statement to, or misleads or attempts to mislead, the Ombudsman or another person in the performance of the duties and powers of the Ombudsman;

(b) wilfully obstructs the Ombudsman, or any person acting for or under the direction of the Ombudsman, in any manner;

(c) wilfully destroys or erases personal health information with the intent to evade an individual's request to examine or copy the information;

(d) obtains another person's personal health information by falsely representing that he or she is entitled to the information;

(e) requires production of or collects or uses another person's PHIN contrary to section 26; or

(f) knowingly falsifies another person's personal health information;

is guilty of an offence.

Offence by employee, officer or agent

63(2)       Despite subsection 61(2), a person who is an employee, officer or agent of a trustee, information manager or health research organization and who, without the authorization of the trustee, information manager or health research organization, wilfully

(a) discloses personal health information in circumstances where the trustee, information manager or health research organization would not be permitted to disclose the information under this Act; or

(b) uses, gains access to or attempts to gain access to another person's personal health information;

is guilty of an offence.

Offences by trustees and information managers

63(3)       A trustee, information manager or health research organization who

(a) collects, uses, sells or discloses personal health information contrary to this Act;

(b) fails to protect personal health information in a secure manner as required by this Act; or

(c) discloses personal health information contrary to this Act with the intent to obtain a monetary or other material benefit or to confer such a benefit on a trustee or other person;

is guilty of an offence.

Due diligence defence

63(4)       No trustee, information manager or health research organization shall be found to have contravened clause (3)(a) or (b) if the trustee, information manager or health research organization can establish that he or she took all reasonable steps to prevent the contravention.

Continuing offence

63(5)       When a contravention of this Act continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.

Prosecution within two years

63(6)       A prosecution under this Act may be commenced not later than two years after the commission of the alleged offence.

S.M. 2008, c. 41, s. 27; S.M. 2013, c. 22, s. 2.

Penalty

64(1)       A person who is guilty of an offence under section 63 is liable on summary conviction to a fine of not more than $50,000.

Directors and officers of corporations

64(2)       When a corporation is guilty of an offence, a director or officer of the corporation who authorized, permitted or acquiesced in the offence is also guilty of an offence and is liable on summary conviction to a fine of not more than $50,000.

Defence under other enactments

65(1)       No person is guilty of an offence or subject to disciplinary action of any kind under any other enactment by reason of complying with a request or requirement to produce a record or provide information or evidence to the Ombudsman or adjudicator, or a person acting for or under the direction of the Ombudsman or adjudicator, under this Act.

No adverse employment action

65(2)       No trustee or person acting on behalf of a trustee shall take any adverse employment action against an employee because the employee has complied with a request or requirement to produce a record or provide information or evidence to the Ombudsman or adjudicator, or a person acting for or under the direction of the Ombudsman or adjudicator, under this Act.

S.M. 2008, c. 41, s. 28.

Regulations

66(1)       The Lieutenant Governor in Council may make regulations

(a) designating facilities for the purpose of the definition "health care facility" in section 1;

(b) designating classes of persons as health professionals for the purpose of the definition  "health professional" in section 1;

(c) respecting the maximum fees that trustees may charge for the examination and copying of personal health information, including providing for circumstances in which fees may be waived;

(d) requiring trustees to provide notice to individuals about

(i) their rights to information under this Act, and

(ii) the practices of the trustee respecting the collection, use, retention and disclosure of personal health information,

and providing for the form and content of such notices;

(e) respecting the giving of authorizations and consents by individuals under this Act;

(f) for the purpose of section 17, governing policies of trustees concerning retention periods for personal health information and respecting the destruction of that information, and requiring the policies to be made available to the public;

(g) requiring trustees to maintain a record of disclosures of personal health information made under this Act;

(h) respecting security safeguards for personal health information that trustees must establish, including requirements for information held in electronic form;

(i) specifying public bodies for the purpose of clause 22(2.1)(d);

(i.1) for the purpose of section 23.2 (charitable fundraising),

(i) designating health care facilities and health services agencies, and

(ii) specifying additional requirements under clause (2)(d);

(j) respecting agreements for the purposes of subsections 24(4), 24.1(4) and 25(3);

(j.1) prescribing health research organizations for the purpose of section 24.1;

(k) for the purpose of clause 26(2)(c), permitting the collection and use of a person's PHIN number for specified purposes or by specified persons or bodies;

(l) governing the disclosure of personal health information to persons or bodies outside Manitoba;

(m) respecting the appointment of members of the health information privacy committee established under section 59 and governing the duties and functions of the committee and all related matters;

(n) defining any word or expression used but not specifically defined in this Act;

(o) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent of this Act.

Application of regulations

66(2)       A regulation under subsection (1) may be made to apply to particular classes of trustees or persons or to particular classes of personal health information.

S.M. 2008, c. 41, s. 29.

PART 7

REVIEW AND COMING INTO FORCE

Review of Act in five years

67(1)       The minister must undertake a comprehensive review of the operation of this Act, which involves public representations, within five years after an adjudicator is first appointed under section 58.1 of The Freedom of Information and Protection of Privacy Act.

Tabling of report

67(2)       The minister must submit a report on the review to the Legislative Assembly within one year after the review is undertaken, or within such further time as the Assembly may allow.

S.M. 2008, c. 41, s. 30.

C.C.S.M. reference

68          This Act may be referred to as chapter P33.5 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

69          This Act comes into force on a day fixed by proclamation.

NOTE: S.M. 1997, c. 51 came into force by proclamation on December 11, 1997.

 

 


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