The Medical Record

Restrictions to the Patient’s Right of Access to His or Her Medical Record

Under review

The only exceptions to this rule concern cases where the disclosure or information contained in the record is likely to cause serious harm to the patient or to others (Professional Code, sec. 60.5). In these cases, the physician must justify his or her refusal (Code of Ethics, sec. 96):

“A physician who refuses a patient access to information contained in a record established in his respect must, at the written request of the patient, inform him in writing of the reasons for his refusal and enter such reasons in the record.”

Both the Act respecting health services and social services and the Act respecting the protection of personal information in the private sector allow the authorities of an institution and a physician to refuse a patient access to her medical record, if they judge that the disclosure of the record’s content, in whole or in part, would cause harm to her health. This exception is not “permanent” since the institution must determine the point in time at which the content of the record to which access has been refused may be transmitted to the patient, and the latter must be informed of such. It is also up to the physician to prove that the disclosure would cause serious harm to the patient’s  health.

Only serious harm to the patient may be invoked in refusing access to the patient’s medical record. Most frequently, these are situations related to mental health. The physician must therefore judge which is more dangerous to the patient—the refusal or access to the record. In this context, the term “physician” may include more than one physician who may intervene at various times in one same care episode. The obligations set out in sections 94 and 96 of the Code of Ethics are not limited to one single attending physician. All physicians must respect the patient’s right to read her records and only restrict that right in cases where harm could be done.

From this viewpoint, the provisions of the LSSSS (sec. 21) and of the Medical Act (sec. 94)  limiting access to the record of a minor patient are better understood. As mentioned earlier, the law specifies that the person having parental authority has the right of access to the record of her minor child. However, this access may be limited in two situations where there is a risk of harm:

  1. when the minor child under 14 years of age is the subject of an intervention by the youth protection director (DYP) and it is determined that consultation of the child’s record by a person with parental authority could cause harm to the child’s health;
  2. when a minor 14 years of age or over explicitly refuses to give her parents access to her record and it is determined that their having access to it could cause harm to the minor’s health.

Certain restrictions have also been imposed to ensure the confidentiality of information which, while contained in the patient’s record, concerns third parties or was obtained by third parties who would be identified when the record was consulted. The LSSSS formally prohibits the communication of  information to a patient concerning him furnished by an identifiable third person, unless that third person has agreed in writing to the disclosure (sec. 18). The patient retains the right of access to her file, but only after this information has been removed. Section 88 of the Act respecting access to documents held by public bodies and the protection of personal information prescribes the same sort of restrictions for information concerning third parties. The Act respecting the protection of personal information in the private sector stipulates that information concerning third parties must remain confidential when it could prejudice these third parties (sec. 40).

We should point out that the medical expert who receives a request from a patient to have access to a medico-legal assessment report concerning him or her must forward the request to the person or agency that requested the medico-legal assessment. In case of refusal, the patient may go to the Commission d’accès à l’information.

2015-01-14