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S.M. 2012, c. 32
Bill 30, 1st Session, 40th Legislature
The Regulated Health Professions Amendment and Personal Health Information Amendment Act
(Assented to June 14, 2012)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
THE REGULATED HEALTH PROFESSIONS ACT
The Regulated Health Professions Act is amended by this Part.
Subsection 1(1) is amended in the part before the first definition by striking out "15 and" and substituting "15, 15.1 and".
Subsection 171(1) is amended in the part before clause (a) by adding "or subsection 218.3(1) (member's duty to ensure records and specimens not abandoned)" after "section 140 (confidentiality of information)".
The following is added after subsection 171(2):
A person who fails to comply with subsection 218.3(1) (member's duty to ensure records and specimens not abandoned) is guilty of an offence and is liable on summary conviction to a fine of not more than $50,000.
Section 174 is amended by adding ", a custodian as defined in Part 15.1" after "advisory council".
The following is added after Part 15:
PART 15.1
ABANDONED HEALTH CARE RECORDS AND LABORATORY SPECIMENS
This Part applies to
(a) every regulated health profession; and
(b) every health profession regulated under a profession-specific Act.
The following definitions apply in this Part.
"abandoned" means abandoned within the meaning of the regulations. (« abandonné »)
"association" means an association established or continued by a profession-specific Act. (« association » ou « ordre »)
"board" means a board of a college or association established or continued by a profession-specific Act. (« conseil d'administration » ou « conseil »)
"college" means
(a) the college of a regulated health profession that is continued or established by a regulation under clause 8(b); and
(b) a college established or continued by a profession-specific Act. (« collège » ou « ordre »)
"council" means
(a) the council of a college established by subsection 12(1); and
(b) a council of a college or association established or continued by a profession-specific Act. (« conseil »)
"court" means the Court of Queen's Bench. (« tribunal »)
"custodian" means
(a) a person appointed under this Part by the court or by a college or association as the custodian of a member's health care records or laboratory specimens; and
(b) a college or association that is deemed to be a custodian pursuant to subsection 218.4(3), 218.8(2) or 218.8(4). (« gardien »)
"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, vaccine, appliance, device, equipment or other item pursuant to a prescription. (« soins de santé »)
"health care record" means a record of the health care provided to an identifiable individual that includes personal health information about that individual. (« dossier médical »)
"health profession" means a profession in which a person exercises skill or judgment in providing health care. (« profession de la santé »)
"member" means
(a) a regulated member;
(b) a former regulated member;
(c) a regulated associate member;
(d) a former regulated associate member;
(e) a person who is authorized to practise a health profession under a profession-specific Act, and a former member of that profession. (« membre »)
"order" means an order made under this Part. (« ordonnance »)
"personal health information" means personal health information as defined in The Personal Health. (« renseignements médicaux personnels »)
"prescribed" means prescribed by regulation.
"profession-specific Act" means an Act listed in Schedule 2 that has not been repealed. (« loi particulière »)
"record" 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 »)
"regulated associate member" means, in respect of a regulated health profession, an individual whose name is entered on the register of regulated associate members established under section 26. (« membre associé habilité »)
"regulated health profession" means a health profession designated as a regulated health profession by a regulation under clause 8(a). (« profession de la santé réglementée »)
"regulated member" means, in respect of a regulated health profession, an individual whose name is entered on the register of regulated members established under section 26. (« membre habilité »)
Member's health care records or laboratory specimens
In this Part, a reference to a "member's health care records or laboratory specimens" means those health care records or laboratory specimens, or both, which a member is required to maintain as part of his or her practice of the health profession.
In this Part, a reference to "this Part" includes the regulations made under this Part.
Member's duty to ensure records and specimens not abandoned
A member must make arrangements and put plans in place to ensure that the member's health care records or laboratory specimens are not abandoned or at risk of being abandoned.
Other requirements still apply
The obligations under this section are in addition to any other requirements relating to health care records or information, including personal health information, under this Act, The Personal Health Information Act, and any other enactment, by-law, standard of practice, code of ethics and practice direction with which a member must comply.
College or association's duty re abandoned health care records and laboratory specimens
When a college or association has reason to believe that a member's health care records or laboratory specimens are abandoned or at risk of being abandoned, the college or association
(a) must ensure that those health care records or specimens are promptly secured and protected in accordance with the regulations, if any; and
(b) may
(i) appoint a person who is a member to be a custodian, with his or her consent, or
(ii) apply to the court for a custodian to be appointed under section 218.5.
Taking possession of records, specimens
For the purpose of promptly securing and protecting the health care records or laboratory specimens pursuant to clause (1)(a), the college or association may take possession of those records or specimens and take steps that are reasonably necessary to protect them.
College or association may be custodian
If the college or association does not act under clause (1)(b) within 30 days, it is deemed to be the custodian with respect to that member's health care records or laboratory specimens.
Other requirements still apply
The obligations under this section are in addition to any other requirements relating to health care records or information, including personal health information, under this Act, The Personal Health Information Act, and any other enactment with which a college or association must comply.
College or association may apply to court
For the purpose of subclause 218.4(1)(b)(ii), a college or association may apply to the court, with or without notice, for an order appointing
(a) a person who is a member; or
(b) any other person that the court considers appropriate;
to be the custodian of a member's health care records or laboratory specimens. The person must consent to the appointment.
Authority to enter, use computer system and seize
The order may do one or more of the following:
(a) authorize the custodian or a person acting on behalf of the custodian to enter any premises or place in which the court is satisfied there are reasonable grounds to believe that any of the member's health care records or laboratory specimens are located;
(b) authorize the custodian or a person acting on behalf of the custodian to open any safety deposit box or other receptacle on the premises or at the place;
(c) authorize the custodian or a person acting on behalf of the custodian to access and use any computer system used in connection with the member's practice to produce the member's health care records in the form of a printout or to produce them in an electronically readable format;
(d) authorize the custodian or a person acting on behalf of the custodian to seize the member's health care records and laboratory specimens;
(e) direct the person in charge of any of the member's health care records to access and use any computer system used in connection with the records to produce them in the form of a printout or to produce them in an electronically readable format;
(f) direct the person in charge of any of the member's health care records to preserve the records;
(g) direct the owner or person in possession of any premises or place, or the person in possession of any of the member's health care records or laboratory specimens, to deal with them as specified by the court.
The court may also, by order, give any further directions that it considers appropriate, including additional directions to the custodian.
An order must be served in the manner directed by the court on the member whose health care records or laboratory specimens are affected, or on the representative of that member's estate, and on any other persons as directed by the court.
The court may award costs against a member whose health care records or laboratory specimens are the subject of an order, or against the representative of that member's estate, in respect of proceedings under this section. But costs may not be awarded against a custodian, a college or association or its council or board or its officers, or a person acting on behalf of any of them, in respect of a proceeding taken in good faith under this section.
College or association may give directions
Subject to any court order, a college or association may give directions to the custodian with respect to the performance of his or her duties under this Part.
A custodian must
(a) comply with any court order under section 218.5;
(b) comply with the college or association's directions under section 218.6;
(c) comply with any other requirements in respect of the member's health care records or information, including personal health information, under this Act, The Personal Health Information Act, and any other applicable enactment, by-law, standard of practice, code of ethics and practice direction;
(d) make arrangements and put plans in place to promptly secure and protect and properly manage and dispose of the member's health care records;
(e) make arrangements and put plans in place to promptly secure and protect and properly manage and dispose of any of the member's laboratory specimens;
(f) promptly notify in a prescribed manner the individuals whom the health care records are about, and any other prescribed persons or class of persons, that the custodian has the member's health care records and provide those persons with the prescribed information, if any;
(g) promptly transfer an individual's health care record, at the individual's request, to another health professional;
(h) maintain, in accordance with the regulations, complete and accurate records relating to the security, protection, management, transfer and disposition of the member's health care records or laboratory specimens;
(i) promptly provide the college or association with any requested information; and
(j) comply with the prescribed duties, if any.
On completing the performance of his or her duties under this Part, the custodian must make a final report to the college or association about
(a) the security, protection, management, transfer and disposition of the member's health care records, including the prescribed fees charged and collected for dealing with the health care records, if any; and
(b) the security, management and disposition of any of the member's laboratory specimens.
The report must be in a form acceptable to the college or association.
A college or association must monitor the custodian and his or her performance of the duties under this Part.
If the custodian is unwilling or unable to complete the custodianship or for any other reason that the college or association considers appropriate, it may discharge the custodian and appoint a successor in his or her place. If no successor is appointed, the college or association is deemed to be the custodian.
Discharge of custodian after acceptance of final report
On accepting the custodian's final report referred to in subsection 218.7(2), the college or association must discharge the custodian.
Remaining records and specimens
On the discharge of the custodian under subsection (3), the college or association is deemed to be the custodian of any remaining health care records or laboratory specimens that have not been dealt with by the discharged custodian.
Recovery of expenses by college or association
Unless the court orders otherwise, a college or association is entitled to recover from a member whose health care records or laboratory specimens are the subject of an order, or that member's estate, any reasonable expense associated with the custodianship incurred by the college or association, including any reasonable payments it made to the custodian.
Member must cooperate with custodian
A member whose health care records or laboratory specimens have been abandoned or are at risk of being abandoned, or the representative of his or her estate, must cooperate with the custodian in his or her performance of the duties under this Part.
No person shall obstruct a custodian in his or her performance of the duties under this Part.
Custodian is a trustee under Personal Health Information Act
For greater certainty, The Personal Health Information Act applies to
(a) a custodian; and
(b) a college or association when it is dealing with the member's health care records under clause 218.4(1)(a).
Personal Health Information Act applies to member's health care records
For greater certainty, The Personal Health Information Act applies to a member's health care records
(a) in respect of which a custodian is appointed or is deemed to be appointed; and
(b) when a college or association is dealing with those records under clause 218.4(1)(a).
Additional permitted uses for health care records
In addition to using a member's health care records for the purpose of fulfilling its duties under this Part and without limiting any uses permitted under The Personal Health Information Act, a college or association may use the records to carry out its statutory responsibility for the discipline of its members or for the quality or standards of health care provided by its members.
The Lieutenant Governor in Council may make regulations respecting health care records and laboratory specimens, including, without limitation,
(a) respecting the circumstances under which health care records and laboratory specimens are considered to be abandoned or at risk of being abandoned;
(b) respecting the manner in which a member's health care records or laboratory specimens are to be secured, protected, managed, transferred, disposed of and otherwise dealt with for the purposes of this Part;
(c) respecting recordkeeping by the custodian;
(d) prescribing fees that may be charged to the public by a custodian for dealing with a member's health care records;
(e) prescribing anything referred to in this Part as being prescribed;
(f) respecting any matter the Lieutenant Governor in Council considers necessary or advisable for the purposes of this Part.
A regulation made under this section may be general or particular in its application and may apply to one or more regulated health professions and health professions regulated under a profession-specific Act, and one or more classes of members.
A regulation may incorporate by reference, in whole or in part, any code, standard or guideline, and the regulation may incorporate it as amended from time to time, and subject to any changes that the Lieutenant Governor in Council considers necessary.
Subsection 219(3) of the French version is amended by striking out "de directives" and substituting "des directives".
Amendments to unproclaimed provisions
This section amends provisions of The Regulated Health Professions Act, as enacted by S.M. 2009, c. 15, that are not yet in force.
Clause 6(1)(c) is amended by adding "or class of persons" after "other person".
Clause 22(3)(a) of the English version is amended by adding "specifying" before "their composition".
Subsection 60(10) of the French version is amended by striking out "article" and substituting "paragraphe".
Subclause 137(3)(a)(vi) is amended in the part after paragraph (B) by adding "or a description of any similar offence under laws of a jurisdiction outside Canada," at the end.
Subclause 221(1)(c)(iii) is amended by adding "or category of drug or vaccine" at the end.
THE PERSONAL HEALTH INFORMATION ACT
Subsection 1(1) of The Personal Health Information Act is amended
(a) in the definition "trustee", by adding ", a custodian with respect to the records that are the subject of the custodianship, or a college or association (as defined in Part 15.1 The Regulated Health Professions Act) with respect to the records that it is dealing with under clause 218.4(1)(a) of that Act" at the end; and
(b) by adding the following definition:
"custodian" means a custodian as defined in Part 15.1 of The Regulated Health Professions Act; (« gardien »)
COMING INTO FORCE
Coming into force — royal assent
Subject to subsection (2), this Act comes into force on the day it receives royal assent.
Coming into force — proclamation
Sections 2, 3, 4, 5 and 8 come into force on a day to be fixed by proclamation.