The doctor’s lawyer: physicians at risk when it comes to patient privacy
PUBLISHED: The Doctor’s Lawyer: Physicians at risk when it comes to patient privacy, Medical Post, Canadian Healthcare Network, November 17, 2023.
Physicians require permission from the hospital to access a patient’s record to respond to a complaint, even when that record is the physician’s own notes. This is what the Ontario Superior Court of Justice recently decided in Martin (Estate) v Health Professions Appeal and Review Board, 2023 ONSC 2993. [Martin (Estate) v Health Professions Appeal and Review Board, 2023 ONSC 2993].
What happened?
A physician is the health information custodian of their office record.
That’s the good news. It’s downhill from here.
The hospital, the Court decided, is the custodian of the hospital record, even the parts that include the physician’s chart. As a result of this particular interpretation of the Personal Health Information Protection Act (“PHIPA”), if a physician needs their hospital chart to respond to a complaint, they first must obtain permission from the hospital to access or use their chart. Even if permission is granted, the hospital can still impose conditions or restrictions on the disclosure or use of the record.
In Martin (Estate), the complaint was in the context of a lawsuit. When a civil lawsuit is filed, the Rules of Civil Procedure require disclosure in proceedings. This means that the physician is provided with a copy of the patient record long before the matter ever gets to trial.
The same does not apply in the context of College complaints. When a patient complains to the College, the matter is first referred to the Inquiries, Complaints and Reports Committee (“ICRC”). In contrast to civil proceedings, there is no rule under the Regulated Health Professions Act that requires the College to provide the physician with a complete copy of the patient record, at the complaint stage. However, the rules of procedural fairness might argue otherwise.
The College’s disclosure obligations are not technically triggered until the matter is referred to the Discipline Tribunal. But, the physician needs the record long before then. A physician must know what is in that record before responding to the complaint before the ICRC. Physicians ought not to shadowbox in their initial response to a complaint.
What does this mean?
The Court’s decision is a problem for physicians. Imagine: you are the subject of a patient complaint. You know the complaint is frivolous, but you need the hospital record to prove it. Perhaps you are not on the best terms with your hospital leadership, and the hospital, unreasonably, denies you access. What now?
There is no mechanism under PHIPA to require the hospital to disclose the record. On the contrary, the hospital (as the custodian) is permitted to deny access or impose restrictions on access. Further, if the hospital decides that the physician accessed the record without authorization, the hospital can investigate that unauthorized use. If the physician resigns in the course of that investigation, the hospital will report the physician directly to the College. [Due to the mandatory reporting provisions under section 17.1 of PHIPA.] That will trigger a College investigation, which can attract major professional consequences.
The only real recourse, if the hospital refused, would be for the physician to obtain a Court order requiring the hospital to disclose the record. In reality, this would be a nightmare for the physician.
The bottom line?
This decision underscores the need for all physicians in hospital-based practices to be diligent with record keeping. Physicians would be prudent to ensure their office record contains a complete copy of their hospital chart. After all, a physician needs the entire chart to provide continuity of care. However, this kind of record keeping must be done contemporaneous with providing patient care – not after the fact. How the Court might respond to this kind of scenario remains to be seen.
What about hospital-based physicians who do not have office practices? That is where Medical Staff Associations (“MSAs”) come in. MSAs would be wise to have a hospital policy approved that requires the hospital to disclose the relevant patient record when a physician is the subject of a patient complaint (whether before the College, in the hospital, or otherwise), for the purposes of responding to that complaint.
This case is the perfect example of why hospitals need to adopt a just culture – and why physicians need to advocate for that. A hospital ought not to withhold the patient record from the physician if they need it to answer a complaint. To interfere, delay or withhold the record could put the hospital at risk of being accused of bad faith and interfering with the physician’s rights to fairness.
