Individuals have a general right to access their personal information in independent medical examination files, with some notable exceptions.
In 1992, the Supreme Court of Canada confirmed a patient’s right to access information in his or her medical record.1 However, the Court also limited access by stating that a patient does not have the right to information that arises outside of the doctor-patient relationship.
Independent medical examination files differ from medical records
Independent medical examinations (IMEs) represent one situation where an individual may seek access to information outside of a standard doctor-patient relationship. It’s important to note that medical records and IME files differ in many ways. Medical records are created in the course of treating a patient and are intended to summarize and record the care provided. In contrast, physicians conducting IMEs usually do not have a treating relationship with the “examinee.” Rather, the IME physician is retained to provide his or her perspective on an individual's medical needs or condition – often in circumstances where benefits, compensation, or further treatment are being considered or where a request has been made by an insurance agency or other third party.
Physicians conducting IMEs will typically retain files that include various types of information from multiple sources, including:
- information received from the third party requesting the examination (e.g. contracts regarding the scope of instructions, timelines, and fee arrangements)
- documents relied on by the IME physician in conducting the examination (e.g. ancillary medical information, video surveillance, or transcripts of evidence given in the course of legal proceedings)
- notes taken by the physician during the examination of the individual
- the working notes of the physician
- the final IME report containing the physician’s findings and opinion
- the physician’s invoice for services rendered to the third party.
Limits to accessing information about independent medical examinations
While medical records and IME files serve different purposes, they both contain an individual’s personal information. The right to access personal information contained in IME files is confirmed through privacy legislation, and the general rule is that a physician must provide an examinee with access to his or her personal information contained in the IME file upon request.
However, every Canadian privacy law includes exceptions that may limit what an examinee can access within the IME file. Exceptions include:
- information protected by solicitor-client privilege
- confidential commercial information
- information that could lead to a reasonable expectation of someone being harmed if access were granted
Courts have confirmed that an examinee has a right to access parts of the physician’s notes made in the context of an IME that include the examinee’s personal information. However, physicians may redact their own remarks, observations, notes, and deliberations. In other words, a physician can limit access to information that reflects his or her own thought processes, because this is their personal information, not the personal information of the examinee.
Based on these statutory and common law exceptions, a physician who conducts an IME may have reasonable grounds to redact certain information contained in the IME file, such as instructions received from the third party requesting the IME, financial information (including invoices), and certain portions of personal notes.
Before providing an examinee with access to information contained in the IME file, a physician should consult with the third party who requested the IME, and with the CMPA, to discuss the specific facts and circumstances of the case and to determine whether any of the exemptions apply or if there are other grounds to redact information from the records (e.g. contractual obligations).
Fees for accessing IME files
Physicians are expected to charge only nominal fees for responding to access requests, including requests for access to IME files. Many privacy commissioners have held that modest flat fees are permissible for performing one or more tasks related to providing access (such as locating and retrieving records, preparing the record for copying, and photocopying the record). Physicians should not refuse access simply because an individual has not paid the fee. Some regulatory authorities (Colleges) and medical associations have guidelines on what constitutes a reasonable charge. Physicians should determine whether such guidelines apply in their jurisdiction.
The bottom line
- Individuals have a general right to access their personal information whether it appears in their medical record or in an independent medical examination file.
- There are exceptions, however, that may limit the information a physician is required to produce in the context of an independent medical examination.
- Physicians who receive requests for access to personal information contained in an independent medical examination file may charge a nominal fee.
- McInerney v. MacDonald,  2 SCR 138