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Patient information - "Do I need to see this?"
An article for physicians by physicians
Originally published September 2004 / Revised April 2009
IL0910-1-E

Of interest to all physicians using electronic health record systems

Ensuring the confidentiality of the medical information entrusted to them has always been a priority for physicians. Privacy legislation now demands it. Whether the record is maintained in paper or electronic form, the obligations for confidentiality remain the same throughout Canada. However, with the advent of centralized, on-site or off-site computerized record storage systems, serving many health care providers and including thousands of patient files, the protection of records from unauthorized viewing has become a very complex issue.

Many clinics, hospitals and other institutions have established access control procedures to prevent unauthorized viewing and disclosure of electronic records while ensuring they remain accessible to those with a legitimate need. Facilities should perform routine audits of system use. Occasionally these audits have revealed instances of inappropriate access.

Persons who do not conform to the policies of the institution may well be exposed to significant adverse administrative and legal consequences. Similar consequences can also apply to those responsible for any aspect of system management–this group can often include physicians.

Case examples

Case #1: An individual working in a health facility believed that his electronic medical record had been inappropriately viewed by a physician. The facility's administration reviewed the computer audit trail and found that a physician who had not been involved in the care at any point had indeed viewed the record.

Although it was felt the physician could have viewed the record inadvertently while searching for someone with a similar name, a subsequent hospital investigation– including a careful perusal of the computer records–determined the physician had indeed accessed a number of records in sequence, most of them for a very short time. The hospital further determined the record of the patient in question had been viewed for much longer than most, and a number of different screens pertaining to the patient had been viewed, unlike the other cases. The last screen viewed had in fact been the summary of the patient's clinical events. Following a meeting at which the physician had the advice of legal counsel, the administration was not satisfied that access had been gained for either a legitimate purpose or by accident.

Case #2: A facility carried out a routine audit of computer access records. This audit revealed that a physician had viewed the medical record of another physician's patient. No one had made a complaint, and there was no indication that either the patient or her attending physician was aware of the unauthorized access. The Information Services department brought this matter to the attention of the administration.

Both of these cases demonstrate inappropriate access to patient information. In one of these cases, the physician's computer privileges were suspended; in the other, admitting and treatment privileges were suspended. In some jurisdictions, the suspension or restriction of hospital privileges would be reportable to the regulatory authority (College). It may also be necessary to notify the patient about the inappropriate access.

Consent and "need to know"

It is important for physicians to realize they have an obligation not only to protect their patient records from inappropriate disclosure, but also to respect the privacy of others. Two basic tenets of all privacy legislation are the concepts of consent and "need to know."

A good principle to follow in the clinical arena when gaining access to medical records of patients, and prior to viewing an individual’s record, is to ask yourself: "Am I providing medical care to this patient?" If the answer is "no," then you most likely have no right to look without explicit consent.

Electronic health records - A reality today

Because electronic medical records have the potential to improve health care delivery and at the same time promote more efficient use of system resources and better practice management, they are being implemented across the country. However, implementation is progressing more rapidly than the supporting regulatory framework, with resulting uncertainty about accountability for the electronic record.

Information maintained in paper format is less susceptible to inappropriate access or disclosure as there are fewer users who have access and it is not as easy for information to be transmitted to others. However, in the electronic record environment users can number in the hundreds or more and may include a wide spectrum of health care providers, often from several health care regions. Each of them may have access to thousands of records. In some parts of Canada, certain information is required to be uploaded to an electronic health record managed by a health region or ministry. Stewardship in such arrangements is well beyond the capability of many hospitals, let alone physicians, and consequently third party vendors are being contracted to provide this service. However, it is still not clear who is responsible for obtaining consent from patients for the use of information and who is accountable for any errors or breaches.

Although physicians remain responsible for the confidentiality and proper use of the information they gather, policies governing access to electronic records by health care providers, health care administrators, public policy generators, researchers and patients have not been generally developed and accepted. Accountability for policy development and for safeguarding the information has also not been clearly established. Thus, until regulating authorities (Colleges, ministries, and others) clarify accountabilities, it would be prudent for physicians to have a formal data sharing agreement with any group, organization, or facility that may be involved with the physicians in implementing electronic medical records.