A.  Background on Initiative

The Osgoode Hall Law School Law Commission of Ontario Scholar in Residence program provides release to faculty members at Osgoode to permit them to contribute to the LCO’s work.  In some instances, the Scholars assist with projects that the LCO has already undertaken.  In other cases, the Scholars bring their projects with them and the project does not proceed through the LCO’s usual Board approval processes.  Professor Pina D’Agostino, selected as one of the OHLS LCO Scholars in Residence for 2009-2010, falls into the latter group. Her application to the Scholar program included a project proposal that the LCO considered merited development, even though not an “official” LCO project: the interrelationship of intellectual property, ethics and privacy issues arising from electronic medical records.   

The LCO is a partnership among the Law Foundation of Ontario, the Attorney General of Ontario, Osgoode Hall Law School and the Law Society of Ontario, all of whom provide funding to the LCO, and Ontario’s other law schools. Its function is to recommend law reform measures to enhance the legal system’s relevance, effectiveness and accessibility; improve the administration of justice through the clarification and simplification of the law; consider the use of technology to enhance access to justice; stimulate critical legal debate; and study areas that are underserved by other research. The LCO is independent of government and selects projects that are of interest to and reflective of the diverse communities in Ontario.

The LCO is pleased to provide support for Professor D’Agostino’s work on electronic medical records which it considers may contribute to critical legal debate in this significant element of Ontario’s legal system.


B.   Purpose of the Roundtable

We are seeking your views on issues concerning the governance of eHealth in Ontario. Specifically, we are interested in obtaining feedback on whether the current legal framework and practices should be altered to better bring our health records in the wired world. 


C.  Purpose of the Background Paper

The LCO and IP Osgoode have prepared this Background Paper for discussion purposes in connection with the roundtable discussion on eHealth to be held on January 28, 2010.  This paper is intended to provide background information for roundtable participants.   It also sets out consultation questions on which we are seeking input from roundtable participants.


D. Background of the Study

The development and implementation of Electronic Health Records (EHRs) in Canada is not a simple endeavour.  The sheer enormity of the Canadian Health System is indicative of this monumental task.  In fact, millions of healthcare encounters occur each day.  According to the Auditor General of Canada’s 2009 report, annually there are 440 million laboratory tests performed, 382 million prescriptions filled, 322 million visits to doctors’ offices, 35 million diagnostic images taken and 2.8 million hospitalizations.[1]  The vast majority of health information collected upon each healthcare encounter is still recorded on paper or other media, such as x-ray film, and is then physically stored.[2] In his 2002 report entitled, “The Future of Health Care in Canada”,[3] Commissioner Roy Romanow emphasizes the importance of health information and technology as the foundations of healthcare reform. 


E. The Electronic Health Record: Definitions and Uses

An Electronic Health Record (EHR) may be defined as, “a longitudinal collection of personal health information of a single individual, entered or accepted by healthcare providers and stored electronically.”[4]  The longitudinal nature of an electronic health record is its defining characteristic.  Unlike paper records, an EHR is a comprehensive compilation of a person’s healthcare history.[5]  An EHR may include summaries of physician visits and care provided in hospital or other facilities, medical test results, allergies, x-ray images, as well as prescription drug and immunization histories.  EHR systems enable an individual’s health and care histories to be accessible electronically to authorized health providers at various sites of care.[6]   

The interoperable nature of electronic health record systems enable coordinated care between caregivers and across geographic locations, improve patient diagnosis and treatment through the linkage of personal health information with clinical support tools, and augment health record accuracy.[7]  The adoption of electronic health record systems also has important implications for the patient or health-system user.  There is growing discussion that in order for healthcare users or patients to be true partners in their healthcare, they must have access to their personal clinical information.[8]  Access to personal health information is a fundamental right supported by law. In Ontario, for instance, the Personal Health Information Protection Act[9] allows individuals to request access to their personal health information held by health information custodians operating within the province of Ontario.  Systems such as patient portals or patient health records (PHRs) capture either elements of data or all data stored in EHRs, and can be accessible to the patient-consumer via the   EHR network.[10]  Patient health records can also incorporate data entered by the patient themselves.[11]  Such accessible electronic solutions enable patients to play a more active role in medical decision making. At the same time, the abundance of information housed within electronic health records is of value to parties that may be categorized as secondary users.  The medical information housed within EHRs has considerable commercial value[12] for purposes such as marketing, quality assessment, employment insurance, prescription medication and medical research.[13]



The use of electronic record systems to support service delivery may be an emerging health care solution; however, similar technologies have been utilized in other industries for a number of years.  What can the health sector learn from other sectors (e.g. the banking industry) about the adoption of information technologies in a manner that encourages client buy-in and maintains client trust?


F. Establishing Rights: The Doctor – Patient Relationship

In McInerney v. MacDonald,[14] the Supreme Court of Canada elevated the legal protection of medical information by recognizing the doctor-patient relationship as a special relationship of trust.[15] For the Court, the doctor is the owner of the actual physical record.  Despite the doctor’s ownership interest, however, the patient maintains a trust-like, “beneficial interest” in her health information.  As a general rule, therefore, the patient maintains a right to access the health information she confided in the doctor for medical purposes, as does the doctor have a corresponding duty to provide it.  

While the ownership and access interests of the doctor and patient in closed environments, such as the isolated medical clinic, is arguably established with relative ease, this is not so in increasingly interconnected computing environments like the EHR. Since the interoperable electronic health record is collaborative across networks containing thousands of patient records, there is the potential for multiple creators and owners, subjects and users, each with layered rights and varying types of protection. While patients hold privacy and associated rights in their records, the question remains: who “owns” their health records? The unaddressed ownership issues central to effective governance were first flagged in a UK study which observed that, “a lack of clarity on complex questions relating to ownership and control of data may potentially lead to either a complete unwillingness to share data, or conversely to costly litigation when conflicting claims come to light.”[16] 



Patient access rights are the same in both paper and electronic environments.  In your opinion do electronic health records facilitate or hinder patient access?



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