Use of health information requires an authorized purpose

A recent Hearing Tribunal issued its written decision about the conduct of a pharmacist who was found to have accessed and used patients’ health information without an authorized purpose, failed to create records of care, and failed to cooperate with the investigators and the complaints process by, in part, attempting to obtain false evidence and coerce a witness. The Hearing Tribunal closed portions of the hearing to hear sensitive testimony from several witnesses and for this reason the August 3, 2018, decision on merit will not be published to protect patient privacy. The Hearing Tribunal’s findings are summarized in its decision on sanction. The Hearing Tribunal found that the pharmacist misused his authority as a health information custodian and pharmacist, was dishonest, was unethical, and harmed the integrity of the profession. The Tribunal found that the pharmacist’s conduct was unprofessional and warranted severe sanctions.

The requirement for registrants to properly collect, use, disclose, and safeguard their patients’ health information is foundational to the relationship between pharmacy professionals and patients. When health information is used in the absence of an authorized purpose, this relationship is eroded, as is the integrity of the profession.

In this matter, the Tribunal imposed extremely significant penalties, even though there had been no previous history of unprofessional conduct on the part of the registrant. On pages 22 to 24 of its May 14, 2019, decision on sanctions, the Tribunal made orders including, but not limited to, the following:

• a three-year suspension;
• fines totalling $22,000;
• a payment of $120,000 towards the costs of the investigation and hearing;
• a condition that, prior to applying for reinstatement, he must unconditionally complete the CPEP/Probe Ethics & Boundaries Program;
• a condition that the pharmacist must disclose the Tribunal’s written decision to any pharmacy employer or any place of employment where he has access to health information for a period of five years from the end of his suspension;
• a condition that, upon reinstatement, he practise under direct supervision for 500 hours followed by indirect supervision for 500 hours; and
• a prohibition on him being a licensee for a period of five years from the end of his suspension.

Rationale for the Tribunal’s decision, is reflected in its following statements:

From the tribunal’s decision on sanction:

Pharmacists are entrusted by society and patients with access to personal health information, which is important to provide optimal patient care, but with that access comes significant legal and ethical professional duties around the access, use and protection of that very sensitive information.  Breaking this trust and duty brings disrepute to the profession and harms the ability for the profession to self-regulate.  What was particularly concerning was [the pharmacist’s] lack of understanding of the privilege of access to health information and his duties with respect to access during the findings hearing. 

Self-regulation and the College’s ability to protect the public depends on a complaints process in which regulated members have a legal and ethical obligation to cooperate, and that is why these responsibilities are codified in the Health Professions Act.

Note: On June 10, 2019, the pharmacist made application to appeal the decisions of the Hearing Tribunal. This appeal to a panel of ACP Council is scheduled to be heard on January 29, 2020. Also, on June 10, 2019, the pharmacist applied to stay all the Hearing Tribunal’s orders on sanctions until after the appeal has been decided. In their June 21, 2019 written decision, a panel appointed by ACP Council to hear the stay application decided that all sanctions ordered by the Hearing Tribunal would remain in force, and only the requirement to start payments towards the fine and costs be stayed.

Pharmacists and pharmacy technicians—review your ethical duties to our profession and yourself:

1. Completely read through the Hearing Tribunal’s decision on sanctions in this matter. Although lengthy, there are numerous lessons that can be learned and applied to everyday practice.
2. Review, understand and comply with all aspects of the collection, use, disclosure, and safeguarding responsibilities of health information. Excellent information about these responsibilities can be found on the ACP website in the Legislation section. The publication Helping pharmacists and pharmacy technicians understand the Health Information Act may be particularly informative.
3. Visit the Office of the Information and Privacy Commissioner of Alberta website. In addition to health information resources, this website also provides summaries of recent OIPC investigations and decisions involving health information.
4. Discuss the proper use of health information with your peers.
5. Review, and update as needed, your pharmacy’s health information policies and procedures.
6. Review and discuss with peers your fundamental ethical obligations. Principles 1, 3, 4, and 10 of the Code of Ethics will provide you with valuable guidance in this respect.

Understand that a failure or refusal to cooperate with an investigator or failing to be honest with the complaints process may be considered unprofessional conduct and may result in severe sanctions. If a registrant’s actions demonstrate that they may not be governable, then it may be determined that the registrant should not remain in the profession. Review Principles 10(1, 2) and 12(6) of the Code of Ethics and section 1(1)(pp) of the Health Professions Act.