The grievor had access to the hospital’s medical database and used it to find information on her son’s ex-wife. Despite the grievor’s long service and clean disciplinary record, the arbitrator upheld the hospital’s decision to terminate her.
A nurse with 22 years’ service was fired after the employer determined that she had inappropriately looked at the personal medical file of her former daughter-in-law.
H.P. was hired by the hospital in 1989. She worked continuously at the hospital between the date she was hired and when she was fired on February 11, 2011. Her record was discipline-free.
On January 29, 2011, H.P. used the hospital’s Meditech database to collect medical information on a patient. H.P. made use of the hospital’s Meditech access again a few days later to look up the same patient. H.P. had no clinical relationship with the patient.
The patient was H.P.’s ex daughter-in-law. At the time, H.P.’s son was engaged in a custody dispute with the patient (his ex-spouse) over their child — H.P.’s grandchild.
The patient was tipped off by comments H.P.’s son made that referenced information that could only have come from someone with access to her medical file. She lodged a complaint.
The employer investigated. H.P. admitted to using the hospital’s Meditech database to find information about her ex daughter-in-law.
Violation of the Personal Health Information Protection Act
H.P. was fired. Despite her long service, termination was appropriate in the circumstances, the employer said. H.P. had engaged in serious misconduct. Improperly accessing a patient’s confidential medical information was a breach of the hospital’s Code of Conduct and the hospital’s policy on the Protection of Confidential Information. Her actions also constituted a violation of the Personal Health Information Protection Act (PHIPA) and the College of Nurses Practice Standards.
Since the enactment of the PHIPA, the employer had revised its policies with respect to patient healthcare information. Staff was aware that a breach of these policies could lead to termination. Staff was required to sign off on a statement of accountability and a privacy of information contract. H.P. had signed those documents.
The union agreed that discipline was warranted, but argued that termination was too severe. H.P. was a long-service employee with an unblemished record and the respect of her colleagues. She was the sole breadwinner in her family. There was no evidence to suggest that the relationship between H.P. and the patient or the potential for conflict between the patient and H.P.’s son motivated H.P.’s actions. H.P. had admitted her mistake and was unlikely to repeat it.
The only issue to be determined was whether or not termination was justified, the Arbitrator said.
Breach of privacy warrants discipline
Citing Health Employers’ Assn. and Banque Laurentienne, the Arbitrator said, “a breach of confidentiality of patient or client personal health information, in and of itself, warrants the imposition of discipline on the employee by the employer.”
The Arbitrator matched up H.P.’s circumstances and employment history with the lists of mitigating factors enumerated in both Re Canadian Broadcasting Corp and C.U.P.E. (1973) and Re United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. (1964).
In her favour were her long service and discipline-free record along with the endorsement of her peers. The isolated nature of her misconduct and her admission of the offence were also on the plus side.
It wasn’t enough, the Arbitrator said.
“[I] am unable to conclude they are so compelling as to mitigate the penalty. The above-enumerated factors that work in the grievor’s favour are outweighed by those that do not. [H.P.] knowingly and deliberately improperly accessed the patient’s personal health information in violation of her Code of Ethics, the PHIPA, and, Employer policies. She was aware that a breach of confidentiality could lead to termination of employment. She accessed that information for personal reasons and not for professional reasons. While she admitted her wrongdoing, the Employer determined, as stated in the discharge letter, that the grievor demonstrated a ‘lack of insight [and] recognition and remorse relating to this incident.’ These conclusions speak against the likelihood of a re-occurrence of her misconduct not occurring in the future.”
The grievance was dismissed.
“Based on all the foregoing I find that the level of discipline, discharge, imposed on the grievor for her misconduct is not inappropriate in all the circumstances.”
Reference: Timmins & District Hospital and Ontario Nurses’ Association. William A. Marcotte — Sole Arbitrator. G. Jeffrey for the Employer and G. Oram for the Union. May 11, 2011. 34 pp.
