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Source: CJME

Posted on August 30, 2012

There will be no charges laid in the single biggest privacy breach that Saskatchewan's privacy commissioner has ever seen.

In 2011 almost 3,000 medical files were found in a blue recycling dumpster in Regina's south end. The government admitted the doctor who was responsible for those files won't be prosecuted.

After the files were discovered Dr. Teik Im Ooi insisted that she and her staff had no idea they had been unceremoniously dumped instead of being destroyed in an acceptable fashion. She said the boxes of personal health files were being stored in the basement of the building that housed her practice when custodians had disposed of them.

The government's prosecutors determined that the tenets of the Health Information Privacy Act wouldn't allow for a conviction. The case was also run by a local private law firm, which agreed that there wasn't enough evidence to prosecute the case with any expectation of a win.

Justice Minister Gord Wyant admitted the law needs to be looked at.

"There's a flaw in the legislation," he admitted in an interview with reporters at the Legislature Friday morning. "Perhaps we need to talk about issues of chain of custody, those kind of things. Lowering the threshold to ensure that if this does happen again we would have the grounds to be able to pursue a prosecution."

He said the province intends to put together a working group to investigate what appropriate changes to the legislation could be.

Privacy Commissioner Gary Dickson is hopeful that process proves fruitful. He noted that no one has ever been charged for breaches, even though they happen fairly regularly. That's because the law dictates the government would have to be able to prove that a doctor, who is charged with caring for the files, is aware of or involved in the improper disposal of records.

A case could also be made if the doctor knows that inadequate safeguards are being used and the files aren't properly protected from unauthorized access.

"If we take at face value the legal analysis by Justice and the independent firm they consulted they clearly are saying there's a huge gap. That the only people that can be prosecuted, it's virtually the physician who is caught tossing records themselves into a recycling bin," said Dickson.

He insistted patients here deserve nothing less than a law that actually works to protect them.

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