Gord Wyant said two reviews — one by the public prosecutions division and a second by a private law firm — have concluded there's not enough evidence to prosecute Dr. Teik Im Ooi under the Health Information Protection Act.
Ooi's patient files were found in a recycling Dumpster behind a Regina mall in March 2011.
Wyant said that as far as the custody of the medical files were concerned, Ooi didn't put them in the Dumpster. And he said the province believed there weren't enough facts to demonstrate that she wasn't aware her safeguards weren't adequate.
"We have to be able to prove that she had that knowledge, or that she didn't have the adequate safeguards in place," Wyant explained.
Despite numerous breaches by health professionals, no one has ever been charged under the Health Information Protection Act since it came into force in 2003.
Wyant said the Ooi case demonstrates there is a flaw in the law.
"We take this very seriously and we were very offended when we saw those patient records in the Dumpster. So as a result we believe now that there needs to be some attention paid to the legislation so that we can make sure that peoples' health records are properly protected," Wyant said Friday.
"It certainly shows that there is a problem with the legislation that we need to fix," he said.
A witness tipped off privacy commissioner Gary Dickson in 2011 that maintenance workers dumped 25 boxes into the recycling bin in the basement of the Golden Mile Shopping Centre next to the clinic.
Dickson and two assistants then went Dumpster diving to retrieve thousands of patient files. It was later determined that the files were from Ooi's clinic. Dickson said among those 25 boxes were 2,682 complete patient files and 180,000 pieces of patients' personal health information.
Dickson's investigation found that about 150 open boxes of records ended up in the trash.
In his report in July 2011, Dickson said he's never found a satisfactory explanation as to what happened to the other 125 boxes. By his estimate those missing boxes could contain one million more pieces of sensitive information.
Dickson further said that although Ooi was a senior physician, she had never read the Health Information Protection Act and no one in her office seemed to be responsible for looking after medical information once it went into storage. He recommended justice officials consider prosecution.
"I still believe that for egregious breaches of health privacy there needs to be serious consequences," Dickson said Friday in a phone interview with The Canadian Press.
"The experience in other jurisdictions is that there's powerful deterrent value in a formal prosecution of a trustee who breaches the privacy of a patient. And I continue to feel that compliance in Saskatchewan with (the act) is compromised to the extent there's not been a single prosecution."
Wyant said a working group will be struck to look at issues such as chain of custody or lowering the threshold to ensure there would be grounds for prosecution in the future.
Dickson said he believes this is first time the government has acknowledged that the offence provisions in the act aren't strong enough. He said talk of fixing it is encouraging.
"I accept the legal opinion of the independent law firm and the public prosecutions branch that those things aren't now captured ... in the wording of the offence provision," said Dickson.
"Then I say I think it's important that we remedy this as quickly as possible."