#CyberFLASH: Holding The Black Bag: Personal Health Information And Bankruptcy Proceedings

image-4A recent decision of the Ontario Information and Privacy Commissioner (OPC) highlights the potentially broad application of the Personal Health Information Protection Act (PHIPA).1

The vast majority of PHIPA’s obligations are imposed upon “health information custodians” – those individuals and organizations that collect information from patients – doctors, clinics and hospitals.2 But what happens when the custodian goes bankrupt? The recent decision in Viterna Health Centre Inc. indicates that whoever is left in possession of the information is “it”. This could potentially affect a number of unsuspecting commercial parties.

A copy of the decision can be found here.

Where did all the health information custodians go?

The Viterna case involved a number of health clinics that closed their doors and entered bankruptcy proceedings. The problem, however, was that the companies running the clinics simply left patient records in boxes, in the leased premises across Toronto. While under bankruptcy proceedings, the companies were no longer allowed to conduct any business and are subject to a stay under the Bankruptcy and Insolvency Act (BIA).3 The result was that the clinics avoided responsibility for securing the records.

In November 2015, the OPC issued a Notice of Review to the clinics’ former landlords and trustee in bankruptcy, asking for representations about a potential order to secure the records. As it made clear in its decision, the OPC’s concern was that “the Records were at imminent risk of being lost, destroyed, disclosed, or disposed of in contravention of [PHIPA]…” 

Read more here

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