Keywords
Personal medical information, data protection, privacy, Neill's model
Abstract
Some of the existing literature concerning the privacy of health information seems to suggest that medical information has a particularly special nature; either through its oft-cited association with dignity or the need for its ‘‘unobstructed’’ use by health care practitioners for a variety of reasons. It is against such a backdrop that this paper will review and compare a number of legislative mechanisms that have been designed to meet the challenge of safeguarding the privacy of personal information without completely hindering the continued flow of information required by economic and health care systems. An attempt will be made to situate the Canadian legal environment in respect of privacy legislation within a suitable theoretical framework: Elizabeth Neill’s model of privacy. Aside from providing the necessary conceptual framework for the paper that will help delineate between privacy and personal data protection, Neill’s model will be adapted to develop a privacy–personal data protection continuum, on which the various legislative devices will be positioned. The analysis of the various statutory mechanisms will be limited to a descriptive discussion designed to conceptualize the degree to which contemporary legislation is more aptly construed as protective of privacy or personal data. Though some attention will be devoted to discussing the analytic advantages of Neill’s model in responding to such a query, a normative assessment of her model or the various acts is beyond the scope of this paper. The research questions driving this paper include the fol- lowing three:
(i) Considering Neill’s ontology of privacy rights, are the Organization for Economic Co-operation and Development’s Guidelines on the Protection of Privacy and Transborder Flows of Personal Data and the European Union Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data best characterized as protective of privacy or personal data?
(ii) Do the various provincial health information protection Acts go beyond the Personal Information and Protection of Electronic Documents Act such that health information protection might better be considered more about privacy than personal data protection?
(iii) Which are aligned with Neill’s model?
In order to respond to these questions, the first part of the essay will be devoted to explicating Neill’s ontology of privacy. The paper will then consider the Organization for Economic Co-operation and Development’s Guidelines on the Protection of Privacy and Transborder Flows of Personal Data and the European Union Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data in order to assess whether they protect privacy or personal data. The next section will engage in a comparative examination of the Canadian federal Personal Information and Protection of Electronic Documents Act and the four provincial health information protection Acts (Alberta, Saskatchewan, Manitoba, and Ontario). Based upon this comparison, attention will then turn toward an assessment of whether the various statutes are concerned more with privacy or personal data protection, and where they fit in the privacy debate based on Neill’s model.
Recommended Citation
Wilhelm Peekhaus, "Personal Medical Information: Privacy or Personal Data Protection?" (2006) 5:2 CJLT.
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