XI Health Care Information
1) Maintenance and Contents
Only those things that are material should be recorded
- relevant to patient care situation
- important to think about what is recorded in chart
- some things are better reported in an incident report
Any statement needs to be backed up
- should not just write down "appears depressed", need factual data
- Burgen vs. Sturgeon General Hospital
(text pg. 146, 152)
- diagnosis written down as Pelvic Inflammatory Disease (PID) but there was nothing to back it up
- turned out to be ruptured appendix
- patient died of septic shock
- doctors found liable in negligence for diagnostic oversight and "tunnel vision" in diagnosis (due to bad communication)
Paper Records
- late entries are a problem if very late (like days)
- judge would be suspicious, especially if the entry is self-serving (to the person who made the entry)
2. out of sequence entries are not a problem
- some people chart faster than others (sooner after care episode)
3. corrections must be obvious
4. don’t obliterate former entry
- judge will assume the worst
5. abbreviations are a problem
- patients and judges don’t always understand, can lead to misunderstandings
6. never make editorial comments
- especially about patient’s appearance (level of attractiveness)
Electronic Records
- legislation is slow
- except in Quebec under civil law system
- Ontario has regulations under Hospital Act saying if COACH standards are adhered to then EPR/CPR is the same as a paper record
- likely not a problem because the Evidence Act states that anything capable of storing data can be used as evidence
- need expert to say that the system is reliable, the software is good, the security is good, etc...
- especially good if there is an audit trail capability
- judge won’t accept EPR as record if it may have been tampered with
- faxes are frequently accepted
2) Retention and Destruction
- example of burning records on the beach ® got swept out to sea ® records came back along the beach
- Hospital Act
has provisions for categories of records
- not needed after discharge
- transitory records
- can be destroyed right away
- no clear definition
2. records to be kept for 6 years
- records necessary because of legal significance
3. any other record important for patient care (as opposed to legal) must be kept 10 years
- nothing in legislation for facilities not covered under Hospital Act
- Document Disposal Act
- covers government documents
- will not cover facilities (eg. Public Health) moved to Regions
- FOI states that documents must be kept in a secure manner
3) Ownership
- storage device (paper, disk, etc...) belongs to facility
- information belongs to patient
- patient is entitled to see record
- McInerney v. Macdonald
(text pg. 232, Case and Statute Material)
- patient wanted all documents
- physician said can have everything physician had made but nothing from anyone else
- court said patient is entitled to whole chart UNLESS
- if there is immediate and grave harm to patient, then information can be withheld (disclosure would be harmful)
2. disclosure would likely cause harm to a 3rd party (sometimes 3rd parties must provide information, if patient is incapable for example)
3. possible to charge reasonable fees for photocopying, etc...
- FOI - don’t have to pay for own record, but only applies to public bodies (not physician’s offices)
4) Duty of Confidentiality
- duty to report to appropriate branch but no one else is to know under:
- Adult Care Regulations
- Venereal Disease Act
- Communicable Disease Regulations
- Child, Family and Community Services Act
- Mental Health Act does not mention confidentiality
- Common Law
expects health care providers to keep information confidential
- Professional ethics require confidentiality unless required by law
- old Scottish case of A.B. v. C.D. (text pg. 214)
- woman had a child 6 months after marriage
- husband asked physician if the child was premature
- physician breached confidentiality and told husband and authorities of Presbyterian Church
- physician found liable for breach of contract
- B.C. case where physician inadvertently released more information than required
- principle of confidentiality but not many cases
- under Privacy Act (NOTE: this is not FOIPP Act) need to willfully disclose to be actionable, damages awarded because of breach of confidentiality
6) Mandatory Disclosure of Information
Requirements to Report
- lawyers (solicitor/client relationship)
- don’t have to self-incriminate (Charter section 10)
- communicable disease
- physicians, psychologists and optometrists must report persons who they believe should not drive, if the person intends to drive
- certain deaths
- births, still births
Obligations to Provide Information
- health records ® clients upon request
- subpoena
- person under supoena must appear in court and usually supoena says also have to bring documents
if don’t appear ® contempt of court
- search warrants
- gives Police rights to search and seize records if they contain certain information (as specified in warrant)
Situations Where Do Not Need Patient Consent
- Worker’s Compensation
- under Worker’s Compensation Act has access to records pertaining to incident
- need formal order - has same power as Supreme Court
- ICBC
- certain powers
- usually gets broad consent form signed
- have right to send hospital and physicians a form and make them fill it in (no right to whole chart)
7) Other Disclosure in Public Interest
- Tarasoff
- duty to warn if threat is made about 3rd party to professional and the threat is believable
- MUST warn 3rd party or Police instead
- FOIPP Act section 25 - duty to protect environment and groups of persons against harm to health or safety
- duty to report hit & run, Motor Vehicle Accident, gun shots, stabbings in US
- don’t have this in Canada
- no statute to report to Police except High Treason
- ethical (not legal) duty to report violence and serious threats of bodily harm
- under section 33 F.O.I.P.P Act not unreasonable violations of privacy
- includes that information may be made available to law enforcement officers
- R. v. Dyment
case (case and statute materials)
- can not produce evidence for the purpose (of presenting as evidence)
- can not take blood especially for Police (for example in DUI cases)
8) Liability for Unauthorized Disclosure (invasion of privacy, defamation, breach of contract, privilege)
- covered in other lectures
- not big legal issues yet
Evidence Act section 57 (now section 51)
- protects Quality Assurance / Peer review process in hospitals
- any minutes of meetings, reports made by or for a QA committee for the purpose of dealing with persons who need more training or shouldn’t be practicing
- information can not be subpoenaed or forced to produce documents under QA committee
- see also Risk Assessment slides
10/11) Incidence Reports/ Peer Review Documentation/Information
- incidence reports if made for purpose of getting a peer review started should be covered under section 57 of Evidence Act
- reports must go through QA committee or subcommittee to be covered under section 57 of Evidence Act