In brief
- If you leave a clinic and are not the custodian of patient records, you will not be able to take original patient records with you when you go. Furthermore, you may face challenges when trying to access those records in the event of medico-legal difficulties.
- When you join a practice, clarify that you will be the custodian of the medical records or have an agreement in place with the custodian giving you continued or enduring access to the parts of patient medical records related to the care you provided or assisted in providing.
- Any written agreement to ensure continued access to records should, 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 record retention, security, and destruction.
Protecting your access to patient records
At some point in your career, you might find yourself leaving a practice and being told by the clinic’s medical director that you cannot take patients’ medical records with you. This might be a surprise, since you might consider the records to be yours – after all, you created the entries related to the patients’ care.
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 access as needed for ongoing care or to respond to medico-legal difficulties, 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 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.
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 records that document the care you provided 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 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 may 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 or efficient.
Do you need assistance accessing records?
Accessing records when you are not the custodian and do not have a pre-existing agreement can be complicated. If you are responding to a College complaint or other medico-legal proceeding, and need help accessing patient records, contact us.
How can you ensure access to records?
Even though it can sometimes 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 see will be considered your patients or the clinic’s patients. That 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. Many Colleges and some Privacy Commissioners require physicians in a group practice to have a written agreement at the outset that delineates responsibility for maintaining and transferring patient records upon physician departure from the group practice.
Also, clarify if you will be able to transfer the records to a future practice location. The medical record the clinic provides could be a PDF file, a paper copy, or some other electronic format. In some cases, the clinic might not be able or willing to 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, 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 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. Since matters concerning the business of medicine are outside the CMPA’s mandate, we are 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.
Additional reading
