Canadian Lawyer

March 2022

The most widely read magazine for Canadian lawyers

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Page 39 of 51

38 FEATURE VIRTUAL HEALTHCARE Hawaii instead of from Ontario, so this creates all kinds of questions around what licence the doctor should hold," says Ian Trimble, an associate at Stikeman Elliott. "If they are seeing me as an Ontario individual, do they have to hold an Ontario licence, or is it enough that they are licensed where they are located?" Trimble says these scenarios raise a host of liability and regulatory issues, particu- larly if a patient connects with a physician in another jurisdiction. At the same time, COVID-19 continues to take many health- care professionals out of commission. Telus Health has seen tremendous growth in demand for its decade-old virtual healthcare business, with an increase of 64 per cent in users over the last 12 months. The Telus Health ecosystem now hosts 2.3 million virtual healthcare members and 120,000 doctors, pharmacists and para- medical healthcare providers. "Technology is moving faster than the regulatory framework, so you have to constantly monitor and make risk-based decisions because the rules are not always very clear, and you have to apply a legisla- tion that was made for a non-virtual envi- ronment," says Caroline Poirier, vice presi- dent legal services at Telus. For privacy and security — which Telus builds into all its products and services — regulatory compliance is the primary legal pitfall that occupies Poirier's mind, partic- ularly since provinces do not harmonize their regulations. "When your objective is to develop tech- nology that's going to be used across Canada, it's complex, and it's challenging to do that while complying with all the different regu- latory requirements in the different prov- inces," says Poirier. She and her team also carefully monitor the uncertainty around temporary rules that provinces have enacted due to COVID. "If we had a comprehensive and harmo- nized privacy regulatory framework, it would make our lives a lot easier and would probably increase adoption too," says Poirier. Instead, the existing patchwork of differing legislation across the country limits companies' ability to innovate and invest in new technologies due to the uncertainty surrounding privacy and security requirements. Provincial regulations also impact compensation for physicians and health- care providers, as well as insurance matters. Some services that were not insured pre-COVID are now temporarily insured when provided virtually, but this varies between provinces and between different types of healthcare providers. With any digital healthcare services, in-house counsel must always ensure they comply with all privacy and data protection laws within the different provinces. In each case, it's a matter of recognizing the obliga- tions and who has responsibility for them, Trimble says. "Don't just know your own responsi- bilities as a healthcare company, but also know the responsibilities of the people you're contracting with," says Trimble. Large healthcare companies can help healthcare professionals comply with their obligations and put safeguards in place. Compliance with the General Data Protection Regulation does not necessarily mean you comply with all applicable laws, so in-house counsel must carefully monitor all provincial legislation. "There are a lot of examples in health where compliance with the GDPR does not ensure compliance with applicable provincial health information law, so my advice would "Don't just know your own responsibilities as a healthcare company, but also know the responsibilities of the people you're contracting with" Ian Trimble, Stikeman Elliott LLP

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