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Who owns the medical record?
In 1993 the Supreme Court of Canada made it clear that the information in the medical record belongs to the patient. However, the physical record belongs to the person or organization responsible for its creation, that is, the hospital or a physician in private practice. What this means:
- Patients have a right to see the content of their record at any time and for any reason, subject to certain exceptions (e.g. if there is likelihood of harm to the patient).
- Any inappropriate notations can be embarrassing to, or even grounds for litigation against, the writer.
The owner of the physical record is responsible for controlling access by others in accordance with privacy law.
Learn more about McInerney v. MacDonald — a landmark Canadian legal case
When law and medicine intersect: a landmark Canadian legal case about patients' access to medical records
McInerney v. MacDonald (1992)
This Supreme Court of Canada decision established the principle that although physicians own the physical medical record, patients have a general right of access to the information in their record.
The patient asked her doctor for a copy of her entire medical file. The doctor complied, but refused to provide documents that originated from other physicians on the grounds that these were the property of other physicians.
Legal considerations
The Supreme Court found that physicians, institutions, or clinics compiling a medical record own the physical record. Patients, meanwhile, have an interest in the information contained in their records that was obtained as a result of the treatment provided, even if it was derived from other sources. The doctor holds the information in trust for the benefit of the patient, who retains a right of access to the treatment information.
However, the Supreme Court found that right of access is not absolute. When the physician reasonably believes there is a significant likelihood of a substantial adverse effect on the patient's physical, mental, or emotional health, or harm to a third party, that information or part of the medical record does not need to be disclosed.
Why is this decision important?
Physicians and institutions have long understood the trustee-like responsibility they have over records, as well as patients' general right to the treatment information in the records.
Legislation has codified the principles articulated in McInerney. Procedures have been established for seeking access to medical records and responding to such requests. An administrative process for handling patient complaints has been introduced; complaints can now be resolved by a privacy commissioner rather than the judiciary.
