2.1.1 Access to Medical Records
Paul B. Miller, JD, MA, MPhil; and Charles Weijer, MD, PhD, FRCPC
- To appreciate the basis, in ethics and law, of patients' right of access to their medical records
- To appreciate the limits of patients' right of access to their medical records
Mr. Henry is a 42-year-old longtime patient of Dr. John, a family practitioner in Timmins, Ontario. Mr. Henry is a construction foreman with a wife and two teenage children. He has a long history of vague upper gastrointestinal complaints. An upper gastroesophageal endoscopy performed two years previously revealed gastritis and mild gastroesophageal reflux. He was treated with dietary modification and a proton pump blocker to good effect. Six weeks ago Mr. Henry presented to Dr. John with painless jaundice. In-hospital investigation revealed a 5-cm adenocarcinoma in the head of his pancreas with local lymph node involvement. Three weeks after learning of his diagnosis, Mr. Henry books an appointment with Dr. John and requests a copy of his complete medical records.
Mr. Henry's medical records contain consultation reports from two gastroenterologists seen in previous years, a report from the radiologist who performed the CT scan and CT guided fine needle aspiration of the pancreatic tumour, a report from the pathologist confirming the diagnosis of adenocarcinoma and a report from the medical oncologist.
Dr. John is aware of the emotional distress that Mr. Henry has suffered over the past weeks, especially since the diagnosis of pancreatic cancer was confirmed. Mr. Henry, very understandably, is profoundly saddened and worried about being able to provide for his family. The medical oncologist's report contains a very frank discussion. It speaks of the "dismal nature of the diagnosis" and the "low probability that, even with treatment, the patient will survive more than 12 months."
The medical oncologist's report goes on to express concern regarding the amount of clonazepam that Mr. Henry is taking. Two weeks prior to seeing the oncologist, Mr. Henry filled a prescription for 60 doses of clonazepam 0.5 mg, to be taken twice a day as required. At the consultation he indicated that he was "almost out" and requested another prescription. The oncologist remarked on the "well-known addictive potential of benzodiazepines, especially when, as admitted to me by the patient, they are combined with daily alcohol consumption."
The consultation report from the radiologist who performed the CT scan and CT-guided fine needle biopsy of the tumour contains an unfortunate offhand remark about the patient. The radiologist describes some initial difficulty with the biopsy because the patient was being a "bit of a wimp."
In perusing his own notes in Mr. Henry's record, Dr. John comes across a note from a visit four years earlier in which Mr. Henry had discussed marital difficulties. In his note he states: "Mr. and Mrs. Henry are going through an extremely difficult period in their marriage. I remain concerned that Mrs. Henry refuses to disclose to her husband the ongoing sexual affair between herself and Mr. Henry's business partner. Plan: Continue to support Mr. Henry and meet again with Mrs. Henry in private." He recalls that the affair was never disclosed to Mr. Henry.
- Does Mr. Henry have a right of access to his medical records, and if so, what is its basis?
- If Mr. Henry has a right of access to his medical records, does it extend to records generated by other physicians or health professionals?
- If Mr. Henry has a right of access to his medical records, to what extent, if at all, is it qualified by Dr. John’s concern over the distress that disclosure may cause him?
- If Mr. Henry has a right of access to his medical records, to what extent, if at all, is it qualified by the presence of the potentially inflammatory but medically relevant remarks of the medical oncologist?
- If Mr. Henry has a right of access to his medical records, to what extent, if at all, is it qualified by the presence of potentially inflammatory but medically irrelevant remarks by the radiologist?
- If Mr. Henry has a right of access to his medical records, does it extend to sensitive information about other persons? Does it matter that the information pertains to him?
- McInerney v. MacDonald (1992) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/884/index.do
- Kennedy I. Access to medical records: Breen v. Williams. Medical Law Review 1997; 5(1): 115-21.
- Kirby MD. A patient's right of access to medical records. Journal of Contemporary Health Law and Policy 1995; 12(1): 93-111.
- McQuoid-Mason D. Medical records and access thereto. Medicine and Law 1996; 15(3): 499-517.
- Westin AF. Medical records: should patients have access? Hastings Center Report 1977; 7(6): 23-8.