The first person ever prosecuted under Ontario’s health privacy law for allegedly prying into almost 6,000 patient records no longer faces charges because of the “curious” way the Crown handled the case, a court has ruled.

Against a backdrop of growing calls for more prosecutions under this law, the potentially precedent-setting case was quietly dropped because of a 16-month delay “entirely attributable” to Crown prosecutors, according to the court ruling.

North Bay Health Centre nurse Melissa McLellan was accused of inappropriately accessing 5,804 patient records, including information about overdoses, suicide attempts, marriage issues and psychotic episodes.

If found guilty, McLellan would have been the first individual convicted under the 2004 Personal Health Information Protection Act (PHIPA) — but she no longer faces a trial or the possible $50,000 fine.

Justice of the Peace Lauren Scully stayed the case in January — effectively dismissing it — because she said the Crown’s “extensive late disclosure” of evidence and “controversial, curious” tactics breached McLellan’s charter rights.

The Crown conceded in its submissions that it had faced many “hiccups” throughout the case. “The Crown said the situation was not ideal and this was the first prosecution of its kind resulting in a steep learning curve by everyone involved,” Scully’s decision said.

With McLellan’s charges now scrapped, the focus shifts to the breach of former mayor Rob Ford (open Rob Ford's policard)’s hospital records. On Tuesday, the privacy commissioner referred two hospital workers who allegedly snooped into Ford’s records at the University Health Network in January to the attorney general for prosecution. This case could now set the precedent for prosecutions under PHIPA.

A series of Star investigations unveiling a rising number of willful breaches of medical records in Ontario hospitals has turned a spotlight on legislative shortfalls in the provincial health privacy law.

Every year, thousands of health-related privacy breaches in Ontario go unreported to the provincial privacy commissioner as hospitals choose to handle these violations behind closed doors, the Star reported in January.

A significant rise in hospital snooping incidents nationwide has led to other jurisdictions updating their health privacy laws. Ontario, which was once at the forefront of patient privacy, has not followed suit.

Over the past few months, experts, authorities and organizations have joined forces to call for changes to PHIPA, including Ontario’s privacy commissioner Brian Beamish, Ryerson University’s Privacy and Big Data Institute executive director Ann Cavoukian, multiple privacy lawyers and the Ontario Hospital Association.

They all want to see more prosecutions under the act to deter curious health professionals, such as those who pried into Ford’s records and McLellan.

Under PHIPA, a prosecution must be launched within six months of the breach taking place, which means the Ministry of the Attorney General only has about three months to decide whether to prosecute in the Ford case. A ministry spokesperson said Thursday that the decision would be made in a “timely way.”

The government declined to comment on the McLellan case or how much it cost taxpayers.

McLellan was charged with nine counts under PHIPA for an alleged privacy breach described as "mind-boggling, and unprecedented," in an arbitator's ruling dismissing a grievance McLellan filed against the North Bay hospital after being fire.

According to an arbitator’s ruling dismissing a grievance McLellan filed against the North Bay hospital after being fired, McLellan was charged with nine counts under PHIPA for an alleged privacy breach described by the arbitrator as “mind-boggling, and unprecedented.”

She was fired from the hospital in May 2011, after an audit discovered she had allegedly been breaching patient privacy extensively over a seven-year period. She allegedly accessed 12,000 individual records without authorization from units all over the hospital, including surgery, emergency, labour and delivery, psychiatry, and pediatrics — often allegedly snooping up to 54 times a day.

According to the arbitator’s decision, some of the information McLellan allegedly accessed was “extraordinarily personal” and included diagnoses of bipolar, dementia, and obesity. She allegedly opened the medical records of her colleagues and pried into patients’ visit history, which held information about overdoses, suicide attempts, drug and alcohol addiction and marriage problems.

“The extent of her actions is truly breathtaking — almost mind-boggling. This was a daily, regular and consistent practice,” the arbitrator wrote.

After the hospital notified all affected individuals, it received hundreds of calls from concerned patients, some fearing their children would be victims of abduction, others that they would be targets of identity theft, the arbitrator wrote.

“Many patients stated that they would not return to the health centre, that their trust was broken and that they felt violated,” the arbitrator wrote.

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The decision states that during the hospital investigation McLellan was asked why she allegedly accessed the records. “Just curiosity,” she responded. McLellan was aware she was breaking the law: “I knew it was wrong. I haven’t anything to say to justify what I have done,” the decision alleges she said.

The former nurse was fired from the hospital, ordered to attend a disciplinary hearing with her regulatory body and was charged under PHIPA.

In Scully’s decision to dismiss the charges against McLellan, she said it was a complex case requiring voluminous disclosure, numerous witnesses and three pretrials. The lack of any previous prosecutions under PHIPA could have contributed to the muddled, drawn out pretrial process, she said.

“The charges in this case are serious in that they involve alleged breaches of private medical records. Such records are among the most private and personal of information about a person,” Scully wrote.

More serious criminal charges have been dismissed due to shorter delays than the 16 months pinned on Crown counsel Hazel Jones and Deanna Exner, Scully said.

“The delay that I have attributed to the Crown of 16 months and 10 days is beyond the constitutionally tolerable guidelines of 8 to 10 months,” she said.

The delay caused prejudice and ongoing stress to McLellan and was a breach of her rights under the Canadian charter, Scully said, ruling the case must be stayed.

Privacy lawyer Michael Crystal said the McLellan case “has all the earmarks of a first-ever prosecution.”

The lack of understanding of the subtleties of the legislation caused “a bit of a conundrum for the Crown,” he said. “If there are going to be prosecutions that are successful under this act, it will require specialized training for prosecutors. We need to learn some lessons from this case.”

McLellan is now working at a nursing home in Trout Creek, according to the College of Nurses of Ontario. She has a disciplinary hearing pending with the college.

“The outcome of this matter in the courts does not diminish the importance of the PHIPA legislation or the right patients have to privacy,” a spokesperson from the college said.

When the Star contacted McLellan Wednesday night, she referred all questions to her lawyer, Robert Stephenson.

Stephenson said his client was “naturally relieved” the case was dropped.