October 1, 2013
by Dr. Peter Birek
I can’t stand hypocrisy, saying one thing while doing something else. And yet, I am guilty of it, albeit by coercion. Yes, I admit to electronic communication with colleagues regarding patients, treatment plans and the like. A little while ago the RCDSO did a great job providing us with a comprehensive package outlining our responsibilities in view of the two overlapping legislations – one federal1 and one provincial2 – regarding the confidentiality of patient information. The privacy legislation applies to all businesses that collect, store and manage personal information of clients, or patients, in the case of health care facilities. There should be no doubt of the notion (that I fully respect and subscribe to) that it is our duty, as health care providers, to safeguard our patients’ information gained due to a sacred trust that our patients grant us.
I can remember walking by clear bags of shredded documents at the restorative department at the Faculty of Dentistry, University of Toronto. They were the first and perhaps among the few to regularly shred documents, I presume patient related. I could not help commenting to myself, in jest of course, that nobody will ever know … what happened to the distal cusp.
In this editorial I will refer to electronic transmission of patient related information only. So what is information that we cannot trust to the electronic highway, what is perhaps an overreaction to the “secrecy act” and can we use email in particular for communication between dentists? How do we blend the inevitable electronic communication habits of today, yes, 2013, twenty first century, on Earth in this Galaxy, with the increasing paranoia about privacy we cling to so dearly?
I must confess that I haven’t had one day in a long time without receiving digital radiographs and referral notes via email pertaining to new patients, old patients, developing emergencies and less urgent but still pertinent information. The emails are always timely and of great value in preparation for seeing a new patient or coordinating treatment plans and the like. The alternatives to email are phone calls and “snail mail”.
Phone calls are very personal but, in my view, a totally inappropriate means of communication between health professionals. The chances that two busy dentists, for example, can find time during the day to discuss a case and transfer information are practically nil. If the conversation happens, then it is most likely to occur on cell phones, at the end of the day, after the patients are gone and when we are out of the office. Hence, at least one dentist has no chart in front of them and talks from memory that, as we all know, is rather unreliable when it comes to tooth numbers and such. And yes, one can legitimately ask whether cell phones are secure? (didn’t a would-be-king named Chuck find this out many years ago when his conversations with his mistress Camilla were intercepted by tabloid media?).
I find that after most phone conversations, I need to enter the gained information in the chart and since my colleague is likely on the golf course without the pertinent chart, he/she will not remember the content of our discussion let alone record it in the unique patient record. So, inevitably a note will follow to “confirm our conversation”.
Let’s examine for a moment the other method, snail mail. Canada Post (CP) is an institution that has been part of the fabric of our country up there with the Hudson’s Bay Company and the Trans Canada Rail System (The Post Office Department of the Canadian Government was founded in 1867. It was rebranded as “Canada Post” in the late 1960s). With some exceptions, the modus operandi of CP seems to be stuck in the last century.
Let’s take a look at a hypothetical situation so close to home: a moderately complex case sent to a periodontist that involves treatment of periodontal disease and/or placement of implants. There are always cosmetic issues and the definitive need for prosthetic input once the periodontal prognoses of the teeth were established. In most cases there is more than one treatment option, often requiring extraction(s). This requires timely and precise communication with colleagues and patients alike. So, after the consultation, a report is prepared for the referring dentist. (The CP modus operandi goes like this: somebody from your office buys envelopes, stamps, takes the report, folds it, puts in the envelope, licks it, carries to the mail box; an army of people, called postal workers, collect it, take it to the station to be sorted in little wooden cubicles by another army of postal workers; then the sorted mail is transported via road, air or on foot to be deposited into another gray box in your neighborhood, later to be picked up by yet another army of well paid mail carriers with indexed pensions so that they can fight stray dogs and cats to deposit your single piece of mail into your mail box; in most professional buildings this is a “Mail Box” housed in the bowels of the building; your staff goes down to the basement (quick stop at Timmy’s), picks up the envelope, opens it and, pronto, it is on your desk–in about 2-3 days if you are lucky to be in Ford’s nation’s Metro TO).
Instead of this sequence of events involving hoards of people, buildings and infrastructure for transport, all can be accomplished by the click of a mouse, instantly, picked up at the other end and answered usually within minutes or hours. Too simple to be true? Perhaps.
The problem that we are told repeatedly is that email is “unsecure”. Yes this is true but with some caveats. What is very unsecure is the way we use it (trigger happy to click when content is half-baked; sending to wrong addresses, sending copies to unintended addresses, mismanagement of the file by recipient, leaving our computers unprotected, throwing away hard-drives containing information, leaving unsecured USB keys around, etc). Yes, maybe there are some ill-intended hackers out there who are willing to crack the code in their quest to find out … what happened to the distal cusp.
Although I could argue that email is rather safe when users take certain precautions (as they would with regular mail) as of now I am breaking the spirit of the privacy regulations. Yet, most of us do it and it is unlikely that we can stop anytime soon. Cut me off my email/drop my iPhone in the toilet and I will likely have to close my office or start keeping homing pigeons. There is a need for a quick fix here!
There have been several noted developments that include encryptions of various degrees and more “secure” email environments akin to gated communities we like to live in. It is fair to say that “It appears that the North American dental industry does not provide clear consistent standards on electronic communication”.3 This statement, made in 2008, still stands in spite of the notable advancements that have been made since.4
Is your snail mail “secure?” In the ultimate analysis the answer is yes, mostly because tampering with mail is a federal offence (Theft from mail, criminal code of Canada, 3565–http://yourlaws.ca/criminal-code-canada/356-theft-mail).5 Indeed you break the law if you open and read a piece of mail not intended for you. Crisp and clear.
So here is my humble proposal to our legislators: a law that proclaims it an offence to read, record, store or act upon electronic communication related to health care records/data that is not intended for the recipient’s use. According to the “Birek-law” the receiver of such unintended communication should be mandated by law to notify the sender and return the document, destroy the original and be bound by law not to act on the information that may have been gleaned from the unintended communication.
I will leave the esteemed law colleagues and legislators to figure
out the wording for the “Birek-law” and undoubtedly mull over it for years, as they have the habit to do. Don’t hold your breath though for quick action on this, as our Senate is busy with sorting out grocery bills of senators in PEI or while the Honourable Health Minister of Ontario is busy typing up a long-lobbied and very timely exception for the ban on treating our spouses and loved ones, lifting the veil of criminality from us and preventing the dentists in all the ten provinces and three territories of Canada to die of laughter when they think of the dentists of Ontario. Only in Ontario, eh?
It is a fine balance, after all (if you don’t know what that is read Rohinton Mistry’s novel, Fine Balance)6 between guarding privileged personal information that can have profound effects on our patients’ lives vs the privacy paranoia; between efficient communication leading to better and more timely care for our patients vs antiquated (as my kids say: dad this is so 80s!) modes of interaction between professionals. Since there is no fool proof method we may have to take a risk, one way or another. And yes, the smaller risk with more efficient communication is preferable.
And if, by a quirk of ever-morphing electronic media (see Wikileaks and Edward Snowden affair), an unintended email tells you what happened to the… distal cusp, for God’s sake, please keep it to yourself.
Mea Culpa: This editorial was sent to the editor and printer via email. If by error you received it please….OH
1. Personal Health Information Protection Act, 2004 (PHIPA). The Personal Information Protection and Electronic Documents Act, or PIPEDA which regulates how private sector organizations collect, use and disclose personal information in the course of business activities. PIPEDA was implemented in three stages:
January 1, 2001–federally regulated private sector, for example banks and international air carriers, is covered
January 1, 2002–personal health information collected, used or disclosed by federally regulated organizations covered.
January 1, 2004–covers information collected in the course of any commercial activity in any province or territory in Canada, including provincially regulated organizations.
2. Freedom of Information and Protection of Privacy Acthttp://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f31_e.htm
3. Rollin Matsui: The Electronic Communication (email) Dilemma — Leveraging New Innovations In Dental Practice While Minimizing the Risks. Oral Health, October 2008.
4. eReferral pilot – licenced to CDA and itrans; FREE for every CDA member dentist in Canada.–http://www.ereferralpilot.ca/
5. Criminal code of Canada, 3565. Theft from mail http://yourlaws.ca/criminal-code-canada/356-theft-mail
6. McClelland & Stewart, 1995