Patient confidentiality and the law
CMAJ 1997;157:870
See response from: D.Y. Dodek, A. Dodek
It is a pleasure to see that a medical student and practising physician are sufficiently interested in the ethical issues surrounding patient confidentiality to write a paper. However, the article "From Hippocrates to facsimile" (CMAJ 1997;156:847-52 [abstract / résumé]), by Daniel Y. Dodek and Arthur Dodek, should not be considered a comprehensive guide to patient confidentiality in Canada. Some of the authors' conclusions are so general they are misleading and must not be taken at face value.
The authors based their article on the premise that patients have a right of "inviolate confidentiality" with respect to their medical records. No such absolute right exists. They seem to acknowledge this fact by citing the CMA Code of Ethics, which provides that patient confidentiality is to be respected except where it might conflict with the law or would result in harm to the patient or others. These significant limitations have become increasingly common, and they should not be regarded as minor aberrations. They must be recognized and respected by the profession.
Likewise, subpoenas requiring the release of patient records may eventually conflict with the confidentiality that would otherwise attach to patient records. However, the subpoena does not oblige the physician to turn medical records over immediately to the person requesting them but merely to bring them to court, where it will be determined whether they should be released. Therefore, complying with a valid subpoena will not automatically violate a patient's confidentiality.
The same problem exists concerning the mandatory-reporting obligations cited by the authors. They write that reporting AIDS, but not HIV infection, is mandatory in the US and in Canada. This is inaccurate. Although it may be true in some jurisdictions, there is strong authority that it does not apply, for example, in Ontario. The policy of the Ontario medical officer of health is that, pursuant to Ontario's Health Promotion and Protection Act, physicians are required to report cases of HIV infection. Likewise, rules on mandatory reporting of child abuse vary across the country. Finally, gunshot and knife wounds are not subject to mandatory disclosure. It may apply in the specific context of a criminal investigation or a coroner's inquiry for which a subpoena or a warrant has been issued, but the bold statement that all gunshot and knife wounds must be reported is unfounded.
The authors also state that the physician should ask whether there is any information the patient wishes to keep absolutely confidential. This is highly questionable advice. Keeping 2 sets of charts will create obvious record-keeping problems. Moreover, even though a patient and doctor have deemed something "absolutely confidential," it can still be produced under court order.
It is difficult to imagine when it would be in a physician's interest to consent to not documenting or deleting certain findings or medical information. Failure to record all relevant information will make it difficult to establish the facts upon which advice or treatment was based, and could lead to inappropriate treatment when someone relies upon the incomplete record. The evidentiary consequences in a malpractice action against a physician could serve to destroy an otherwise strong defence.
Finally, if a patient requests that only a portion of the chart be provided to a third party, the physician should let the party know that a portion has been withheld at the patient's request. For example, a patient with a heart condition who applies for life insurance might request than an expurgated version of the chart to be sent to the insurance company. If the company pays out a claim because of this, it could bring a civil action against the physician to recover its losses.
Margaret A. Ross
Gowling, Strathy & Henderson
General Counsel
Canadian Medical Protective Association
Ottawa, Ont.
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