Understanding medical records rights

The Ontario Medical Association (OMA) Legal Department is often asked to comment on questions related to medical records custody and portability, where a physician has left a practice and is unable to take patient medical records with them.

What do members need to know? 

• In 1992, the Supreme Court held in the case of McInerney v MacDonald that it is patients who own the information in their medical records
• The Personal Health Information Protection Act (PHIPA) codified the role of custodian, a Health Information Custodian (HIC) is a designated appropriate person or organization who has custody or control of personal health information

Understanding the role of the Health Information Custodian (HIC)

• A HIC is responsible for collecting, using and disclosing personal health information on behalf of patients, and for taking steps to ensure that the personal health information in their custody or control (i.e. medical records) is protected against theft, loss and unauthorized use, collection or disclosure
• The HIC has custody and control over the physical medical records (whether electronic or hard copy)
• A physician is not always the HIC. Depending on how the practice is set up, the HIC can often be the clinic owner or other person operating a group of health-care practitioners

Who is the HIC?

The HIC as articulated in the physician-clinic contract could be:

• Physician
• Clinic
• Unclear (contract doesn’t clearly state)

What happens to the medical records when the physician leaves the practice?

• If the physician is the HIC, the records go with the physician
• If the clinic is the HIC, the records stay with the clinic
• If it is unclear who is the HIC (the contract doesn’t clearly state), the patient can decide what happens to their records:
  • It is recommended to implement a patient communication protocol
  • If the patient consents, the record (or a copy) travels with the departing physician
  • If the patient does not consent or is silent, the record stays with the clinic

What if the physician wants access to the records that stay with the clinic?

• In cases where the records stay with the clinic, it is recommended that upon departure, the physician and clinic sign a medical record access agreement
• Contact OMA Legal Services for assistance

What are the patient’s rights?

• Patients may request a transfer of their records at any time
• Patients should be offered the option of relocating their record when their physician leaves a practice

How this impacts the portability of medical records

• If the physician is not the HIC and chooses to leave that organization or clinic, the medical records will not automatically go with them. The organization or clinic that is the HIC can refuse to provide the physician with copies of or direct access to patient medical records. Note that a patient themselves can access their medical records under PHIPA and provide a copy to their preferred physician
• Additionally, the organization or clinic can attempt to put in place contractual provisions or other roadblocks preventing physicians from informing their patients that they are relocating

Potential consequences of medical records that are not accessible

• Lack of continuity in patient care
• Lengthy and costly litigation to obtain access to patient medical records
• Risk of not being able to uphold responsibilities regarding the preservation of medical records, as required by the CPSO
• Threat to physician livelihood