2.1.1 Access to Medical Records

The question of whether patients ought to have a legally recognized general right of access to their medical records has been the subject of considerable debate. Such a right is recognized in Canada at common law and in various provinces under legislation governing the collection, use and disclosure of personal health information. The common-law right of access to records was established by the Supreme Court of Canada in McInerney v. MacDonald¹, where an obligation of disclosure upon physicians was said to follow from the fiduciary nature of the physician-patient relationship. The moral basis of patients' right of access to their records is found in the moral requirement of respect of autonomy. In order to effectively exercise their right to make decisions concerning personal matters relating to their health and well-being, it is argued, patients must have access to information material to these decisions contained within their medical records. The moral imperative of disclosure is arguably greater in the context of the physician-patient relationship, given that it is a relationship of trust characterized by higher than normal levels of inequality of power and dependence.

While the right of access is well established in Canada, readers should be aware that the debate remains alive internationally. Courts in other countries, notably Australia and England, have denied that physicians operate under a fiduciary obligation to disclose medical records to patients. Denial of a general right of access has most often been based on the finding that physicians have a property interest in patient records that ought not to be interfered with. Some have questioned whether this interest, if it exists, should extend to all information contained in patient records (i.e., including information disclosed by patients), or only to information generated by physicians in the course of providing patient care (i.e., to their work product). In any event, the Supreme Court of Canada in McInerney did not deny that physicians have a property interest in patient records. Rather, it held that patients have an enforceable right of access to information contained in their records. This right of access is realized through provision of copies of records.

The question of whether patients' right of access to medical records extends to records generated by other physicians or health professionals was at the heart of the case in McInerney. The physician in that case was unwilling to disclose the parts of the patient's record that were generated by other physicians, on the grounds that this information was the property of those other physicians, requiring the patient to obtain their consent to its release. The position of the physician was based on Canadian Medical Association (CMA) policy existing at the time. The Supreme Court ruled against the physician and overruled the CMA policy, holding that patients' right of access does extend to parts of records generated by other physicians or health professionals.

What complicates the issue in Mrs. Ostrowski's case is that there are treatment decisions to be made, and she by definition cannot provide informed consent without the information. The requirement for disclosure of information has been enshrined in legislation related to health care consent in several Canadian provinces. However, the patient's "waiver" does not necessarily mean she has abdicated her right to make a decision; it only means that she has chosen to base her decision on her physician's recommendation rather than on the information about the treatment options. She is exercising her autonomy by making a decision to remain uninformed and pursue whatever treatment option the physician recommends. Moreover, her wish to be uninformed at this point in time does not imply a wish to remain permanently uninformed. At any point at which consent is required, it would be prudent to revisit the issue with Mrs. Ostrowski to confirm that she still wishes to remain uninformed. Each of these interactions should be documented.

Legally, the notion of a patient waiver with respect to consent has been addressed in some provincial consent legislation but not others. Prince Edward Island's Consent to Treatment and Health Care Directives Act (1988) allows patients to waive the right to information in writing, but waivers are not addressed either in Ontario's Health Care Consent Act (1996) or British Columbia's Health Care (Consent) and Care Facility (Admission) Act (1996). Physicians should seek advice pertaining to the legal status of information waivers in their jurisdiction before proceeding.

While patients' right of access to their medical records is powerful, it is not unlimited. Bioethicists have long criticized claims of "therapeutic privilege" offered by physicians in justification of withholding information from patients. However, the Supreme Court in McInerney allowed such claims some latitude. It recognized that physicians do retain the discretion to withhold information on grounds of therapeutic privilege, subject to important limitations. First, the decision must be based on the physician's judgment that disclosure poses a real risk of substantial physical or psychological harm to the patient. The Court suggested that these cases would be very rare. Second, the privilege of withholding information applies only to the parts of the record that pose the risk of harm to the patient.

The law is unclear on these questions. The purpose of the right of access to medical records is to enable patients to make informed decisions. Generally speaking, only information material to the medical interests of the patient is pertinent to their making informed decisions. Accordingly, it would seem that potentially inflammatory but medically irrelevant information falls outside the purview of the right of access, in light of its generally agreed purpose. Such information may simply be severed from the rest of the record. Potentially inflammatory but medically relevant information, on the other hand, falls within the purview of the right of access. That being allowed, depending on the nature of the information and the circumstances of the patient, highly inflammatory but medically relevant information may be withheld on the basis of therapeutic privilege (see above). Interesting, if unresolved, is the question of whether the claim of therapeutic privilege may be based not only on harm that may directly be caused to the patient by disclosure, but also on the potential harm that may be caused to the patient by eventual further disclosure to third parties (e.g., to employers or insurers).

Another important and morally intuitive limit to patients' right of access to their medical records is found in the privacy interests of others in information subject to the right of access. Mr. Henry's wife and business partner have a clear privacy interest in Dr. John's notation about their undisclosed extramarital affair. It is, however, unclear that these interests are protected at law. The law has, to date, failed to recognize a general tort of invasion of privacy, which might be invoked in order to protect the privacy interests of both parties. If Mrs. Henry has established a physician-patient relationship of her own with Dr. John, his duty of confidence to her would prevent him from disclosing comments about the affair to Mr. Henry. The comments pertaining to the affair would have to be severed from copies of records released to Mr. Henry. Otherwise, disclosure of the comments would be required, subject to two possible exceptions. The first is the possible applicability of the therapeutic privilege. For therapeutic privilege to apply, Dr. John must find that disclosure of the comments would be inimical to the interests of Mr. Henry, as explained above. His concern to protect the privacy interests of Mrs. Henry or Mr. Henry's business partner would not support invocation of therapeutic privilege. The second is an exception expressly allowed for in McInerney, whereby information can be withheld where the physician judges that disclosure poses a real risk of substantial physical or psychological harm to someone other than the patient (e.g., Mrs. Henry or Mr. Henry's business partner).