Facts about the fax: MDs advised to be cautious

Karen Capen

Karen Capen, an Ottawa lawyer, articled with the CMA's Department of Ethics and Legal Affairs.

Canadian Medical Association Journal 1995; 153: 1152-1153

Abstract

Physicians' now-routine use of fax machines has drawn attention to the need for office policies and procedures to protect the confidentiality of medical records. The growing popularity of faxed prescriptions has also raised questions about prescribing violations. Lawyer Karen Capen outlines some of the legal concerns about the faxing of medical information, and suggests some precautions physicians can take to avoid problems.

Résumé

Comme le télécopieur fait maintenant partie de la vie quotidienne des médecins, son utilisation routinière attire l'attention sur les politiques et les procédures de bureau nécessaires pour protéger la confidentialité des dossiers médicaux. La popularité croissante des ordonnances télécopiées soulève aussi des questions sur les infractions relatives aux ordonnances. Karen Capen, avocate, décrit certaines préoccupations légales qui ont trait à la transmission par télécopieur de renseignements médicaux et suggère des précautions que les médecins peuvent prendre pour éviter les problèmes.

New concerns arise every day for physicians who incorporate new technology into management of their practices. The now-routine use of fax machines has drawn attention to the need for office policies and procedures to protect the confidentiality of medical records, and the growing popularity of faxed prescriptions raises questions about prescribing violations. Legally, a faxed document is a photocopy, not an original document, and this is especially important with regard to faxed prescriptions.

In law, prescriptions may be classified in two categories: narcotic or controlled drugs, and noncontrolled drugs. The federal Bureau of Dangerous Drugs, which is responsible for regulating the use of certain controlled substances and devices, does not approve of faxed prescriptions for any narcotic or controlled substance and considers it illegal for physicians to participate in such practices. The reason? Multiple faxes of the same prescription could be transmitted, thereby making it possible to obtain controlled substances in dangerous quantities, either for personal use or trafficking. Similarly, the opportunity to dispense even noncontrolled drugs through faxed prescriptions leaves open the possibility that patients do not receive appropriate dosage instructions or information about side effects.

The College of Physicians and Surgeons of Ontario (CPSO) says any method that presents the "substantial possibility" that a single prescription can be dispensed several times without appropriate controls is inappropriate. The college maintains that such practices affect public safety.

The Ontario College of Pharmacists (OCP) prepared guidelines that set out policies and procedures for faxing prescriptions for drugs other than narcotics and other controlled substances, and the CPSO considers them "very reasonable and appropriate" and urges doctors to cooperate in applying them.

However, acceptable and legal practices for faxing prescriptions in other provinces and territories may vary, and physicians should request information from their own regulatory bodies. Still, the OCP Guidelines for Facsimile Transmission may be useful for establishing office or practice procedures:

In an effort to thwart drug diversion, the pharmacist should not accept new prescription authorizations transmitted by patients.
New prescription authorizations may be accepted when transmitted by the prescriber. In such cases the pharmacist should note the fax telephone number of the sender and check its authenticity. In addition, a copy of the prescription should be made (either by hand, typed or computer-generated) upon receipt and linked with the fax authorization, preferably by attaching the two documents.
Requests for prescription refills from patients using fax machines may be accepted, provided that the patient's full name, address and the prescription identification number are provided to the pharmacy that has the prescription on file.
Physicians should remember that a fax authorization is not a "hard copy" prescription on its own, since it represents a photocopy, not an original document. As well, commonly used thermal fax paper will deteriorate over time, creating storage problems, and the Bureau of Dangerous Drugs does not consider a fax copy a prescription in writing.
As with written and verbally transmitted prescriptions, the pharmacist is responsible for taking all appropriate steps to assure that prescription authorizations transmitted by fax are genuine.

Because of their efficiency, timeliness and accuracy, fax machines can improve patient care, especially during medical emergencies. However, in all circumstances where medical histories and laboratory and diagnostic results are transmitted by fax, physicians and medical facilities must take steps to prevent breaches of confidentiality.

The transmission of information from medical records -- for example, sending an electrocardiogram from a patient's physician to an emergency department in some other city -- may help the emergency team assess a potential emergency quickly. But security lapses can occur, and physicians must establish and monitor office policies and procedures for faxing such information, including details on patient care during emergencies.

When faxing material from a patient's medical record, it is best to request and record the patient's authorization -- even, if possible, in emergencies. If information is being sent by fax between offices within an institution, the potential breaches of confidentiality may be minimized by ensuring that standardized procedures are in place.

When physicians fax information from their office practice to other locations -- for example, to a home health care service, an insurance company or another physician's office -- they should ask about fax arrangements at the receiving end. Even marking a document "confidential" may not be a sufficient precaution if the receiving fax machine is located in a central mail room. The Canadian Health Record Association has published recommendations dealing with these issues.

When purchasing a fax machine, investigate built-in security features such as confidential mail boxes and confirmation reports. (Such features may only work with machines from the same manufacturer, and should not be relied on entirely from a security perspective.)
The fax must be located in a secure area where it can be used and monitored only by authorized persons.
Senders should use automatic dialling and other features that help to avoid mistakes - including checking the visual display on the fax machine before transmission of the document or information.
Every effort should be made to transmit only needed parts of the patient record. In most cases, only the information needed to provide for the continuity of patient care should be transmitted.
The receiver should be notified to stand by to receive the information, and a covering letter or page with the name, address and phone number of the sender should be transmitted. It should also include the name, address and phone and fax numbers of the intended recipient, the number of pages transmitted, a clear notice that the information is confidential and a request for confirmation of receipt.

Other recommendations for ensuring secure transmission were developed by the American Health Information Managers Association, which says patient information should be sent by fax only when other methods of delivery will not suffice. As well, the faxing of information about patients should be limited to patient-care situations and should not be used to send information to lawyers, insurance companies or others who can be served just as effectively by mail or messenger. It says a doctor should have the patient's authorization before faxing information, and should develop a separate policy and procedure for emergency situations. It also says thermal-paper faxes should be copied onto regular paper before being placed in the permanent medical record. If a fax transmission is not received by the intended recipient because of misdialling, the fax machine's internal-logging system should be checked to obtain the misdialled number, and a request to destroy the misdirected information should be faxed to that number. (Such occurrences should also be reported to the appropriate risk-management personnel.)

Sound office policies and procedures should address which types of information may be faxed and what categories of information must not be sent by this method. As well, physicians should seek legal advice to ensure that the practices they have put in place are consistent with current provincial, territorial and federal statutes and regulations.

CMAJ October 15, 1995 (vol 153, no 8) / JAMC le 15 octobre 1995 (vol 153, no 8)