■ Duties and responsibilities:

Expectations of physicians in practice

My patients, my records?

Originally published March 2020
20-02-E

If you’re joining a group practice, consider how to protect your ability to access patients’ medical records after you leave

At some point in your career, particularly in the early stages, you may find yourself in a situation where you are leaving a practice. As well, you may be told by the medical director of the clinic that you cannot take patients’ medical records with you. You may be surprised and confused because, after all, you consider these individuals to be your patients.

However, unless you are the custodian of the medical records or have an agreement with the practice owners granting you ongoing access to the records after you leave, you may have no choice but to take one of three actions—leave the records behind, negotiate ongoing access if needed, or ask patients to provide you with a copy. Negotiating for access or approaching patients for copies can take time, which can be especially concerning if you have a regulatory authority (College) complaint or legal action brought against you related to the care of that patient.

Why treating a patient does not necessarily mean you are the custodian

Treating a patient and creating or contributing to a patient’s medical record does not always mean you are the custodian of that record. Nor does it necessarily give you the right to take the record or access it after leaving the practice. While patients own the personal health information contained in the record, it is the custodian who is responsible for maintaining custody and control of the record, including who can have access to it.1, 2

The identity of the custodian depends on the practice setting. In a solo practice, the physician would typically be the custodian. In a hospital or other institution, the organization is usually the custodian. In a group practice or clinic, the custodian is determined according to how the practice is set up. For example, the patients may be considered the clinic’s patients as opposed to the physician’s patients. In those circumstances, the clinic ownership will often be the custodian. However, physicians practising in a group that shares office space and staff resources may maintain their own roster of patients and custodianship over the records of those patients.

Why access is important

As a physician, your ability to access patient records may be important for several reasons. If you face a College or hospital complaint, or a legal action, ready and direct access to those records that document the care you provided or helped deliver will make it more efficient to respond.

Depending on the arrangements made for continuity of patient care on your departure, not having ready access can also lead to questions about your ability to meet expectations set out in College policies or standards regarding follow-up patient care, and the proper retention, security, and destruction of records.

What can happen if you leave a practice and are not the custodian?

If you leave a practice where you are not the custodian and you do not have a pre-existing agreement protecting your ability to access the records to which you contributed, some custodians will refuse to give you the records, copies of the records, or access to the records. You may need to make a formal request to the custodian, which can delay or impede your access.

Custodians may be unaware of your obligations or you may not wish to share with them the reasons for needing access (e.g. that you are the subject of a complaint or legal action). Similarly, obtaining access to records through patient consent or as part of the College or legal process is not always feasible, efficient, or quick.

How can you ensure access to records?

Even though it can be a difficult conversation, the best time to address future access to patient medical records is when you first join a practice. This will minimize the risk of future access issues if you ever leave the practice.

Clarify in writing whether the patients you will see will be considered your patients or the clinic’s patients. The answer will generally determine who will be the custodian of records.

If you are not the custodian, ensure you have an agreement stating that if you leave the practice or clinic, you are entitled to reasonable access to the parts of the medical records related to the care you provided.

Also, clarify if you will be able to transfer the records of patients to a future practice location. The medical record the clinic provides could be a PDF file, a paper copy, or some other electronic format. It is unlikely the clinic will transfer an electronic file that can then be incorporated into your new electronic record system or used to continue documenting patient care. With a PDF or paper copy of the record, you may have to manually enter the data into your electronic record system, a time-consuming process.

In addition, the agreement should state that patients will be notified in advance of a planned departure, and it should clarify who will take on the responsibility of ensuring continuity of patient care after you leave, including who will be responsible for follow-up and for record retention, security, and destruction.

When there is a change in practice ownership or membership, review the contract or agreement.

Consider asking your personal business lawyer or your professional federation, or provincial or territorial medical association to review any contracts before you sign. Because matters concerning the business of medicine are outside the CMPA’s mandate, the Association is unable to assist with reviewing such contracts.

If you are currently working in one or more practice settings and do not have an agreement that addresses custodianship or access to records, consider asking for such agreements or clarification to ensure your access to records should you leave the practice.

Remember, after you are no longer a patient’s treating physician, you should only access those parts of the record that concern the care you provided or were involved in delivering. Depending on the laws of the province or territory in which you work, looking at other parts of the record unrelated to the care you provided may be perceived as a privacy breach and/or result in a College complaint.

The bottom line

  • If you practise in a clinic where you are not the custodian of patient records and you leave that clinic, you will not be able to take with you the original records of the patients you treated. Further, you may face challenges when trying to access those records in the event of a medical legal problem.
  • When you join a practice, clarify that either you will be the custodian of the medical records or you will have an agreement with the custodian that gives you continued or enduring access to the parts of the patient medical records related to the care you provided or assisted in providing.
  • If you have a written agreement to ensure continued access to records, it should do the following, among other things:
    • identify the custodian of medical records
    • state that if you leave or relocate you will continue to have reasonable access to relevant patient records
    • identify the person or entity that will assume responsibility for follow up of patient care and for record retention, security, and destruction.

References

  1. McInerney v. MacDonald, [1992] 2 SCR 138
  2. Canadian Medical Protective Association [Internet]. Electronic Records Handbook. Ottawa(CA); CMPA; 2014 [cited 2019 Dec 1]

DISCLAIMER: The information contained in this learning material is for general educational purposes only and is not intended to provide specific professional medical or legal advice, nor to constitute a "standard of care" for Canadian healthcare professionals. The use of CMPA learning resources is subject to the foregoing as well as the CMPA's Terms of Use.