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Toronto Notes 2019 Ethical and Legal Issues in Canadian Medicine Ethical, Legal, and Organizational Medicine ELOM7 Disclosure for Legal Proceedings
• disclosureofhealthrecordscanbecompelledbyacourtorder,warrant,orsubpoena
Privacy of Medical Records
• privacyofhealthinformationisprotectedbyprofessionalcodesofethics,provincialandfederal legislation, the Canadian Charter of Rights and Freedoms, and the physician’s fiduciary duty
• thefederalgovernmentcreatedthePIPEDAin2000whichestablishedprinciplesforthecollection,use, and disclosure of information that is part of commercial activity (e.g. physician practices, pharmacies, private labs)
• PIPEDAhasbeensupersededbyprovinciallegislationinmanyprovinces,suchastheOntarioPersonal Health Information Protection Act, which applies more specifically to health information
Duties of Physicians with Regard to the Privacy of Health Information
• informpatientsofinformation-handlingpracticesthroughvariousmeans(e.g.postingnotices, brochures and pamphlets, and/or through discussions with patients)
• obtainthepatient’sexpressedconsenttodiscloseinformationtothirdparties
■ under Ontario privacy legislation, the patient’s expressed consent need not be obtained to share
information between health care team members involved in the “circle of care.” However, the patient may withdraw consent for this sharing of information and may put parts of the chart in a “lock box” ◆ physicians have a professional obligation to facilitate timely transmission of the patient’s medical
record to third parties (with the patient’s consent), such as for insurance claims. Failure to do so
has resulted in sanctions by regulatory bodies
◆ while patients have a right of access to their medical records, physicians can charge a “reasonable
fee” commensurate with the time and material used in providing copies/access
• providethepatientwithaccesstotheirentiremedicalrecord;exceptionsincludeinstanceswherethere
is potential for serious harm to the patient or a third party
• providesecurestorageofinformationandimplementmeasurestolimitaccesstopatientrecords
• ensureproperdestructionofinformationthatisnolongernecessary
• regardingtakingpicturesorvideosofpatients,findings,orprocedures,inadditiontopatientconsent
and privacy laws, trespassing laws apply in some provinces
• CPSOpublishedpolicyisdesignedtohelpOntariophysiciansunderstandlegalandprofessional
obligations set out under the Regulated Health Professions Act, 1991, the Medicine Act, 1991, and the Personal Health Information Protection Act, 2004. This includes regulations regarding express or implied consent, incapacity, lock boxes, disclosure under exceptional circumstances, mandatory reporting, ministry audits, subpoenas, court orders and police, as well as electronic records and voice messaging communications: http://www.cpso.on.ca/Policies-Publications/Policy/Confidentiality-of-Personal- Health-Information
• itisthephysician’sresponsibilitytoensureappropriatesecurityprovisionswithrespecttoelectronic records and communications
■ with the advent of digital records, there have been increasing issues with access of healthcare providers that are not part of the patient’s circle of care accessing medical records inappropriately (e.g. curiousity or for profit). All staff should be aware that most EMRs log which healthcare providers view records and automatically flag files for further review in certain cases (e.g. same surname, VIP patients, audit of access to records)
Consent and Capacity
Ethical Principles Underlying Consent and Capacity
• consentistheautonomousauthorizationofamedicalinterventionbyapatient
• usuallytheprincipleofrespectforpatientautonomyoverridestheprincipleofbeneficence
• whereapatientcannotmakeanautonomousdecision(i.e.incapable),itisthedutyoftheSDM(or
the physician in an emergency) to act on the patient’s known prior wishes or, failing that, to act in the
patient’s best interests
• thereisadutytodiscover,ifpossible,whatthepatientwouldhavewantedwhencapable
• central to determining best interests is understanding the patient’s values, beliefs, and patient’s
interpretation of cultural or religious background
• morerecentlyexpressedwishestakepriorityoverremoteones
• patientwishesmaybeverbalorwritten
• patientsfoundincapabletomakeaspecificdecisionshouldstillbeinvolvedinthatdecisionasmuchas
possible; this is known as assent
• agreementordisagreementwithmedicaladvicedoesnotdeterminefindingsofcapacity/incapacity
• however,patientsoptingforcarethatputsthematriskofseriousharmthatmostpeoplewouldwantto
avoid should have their capacity carefully assessed
CMA Code of Ethics
• Protect the health information of your patients
• Provide information reasonable in the circumstances to patients about the reasons for the collection, use, and disclosure of their health information
• Be aware of your patients’ rights with respect to the collection, use, disclosure, and access to their health information; ensure that such information is recorded accurately
Lock Boxes
The term “lock boxes” applies to situations where the patient has expressly restricted their physician from disclosing specific aspects of their health information to others, even those involved in the patient’s circle
of care. Note that PHIPA provisions denote that patients may not prevent physicians from disclosing personal health information permitted/required by the law.
CPSO Policy Consent
Obtaining valid consent before carrying out medical, therapeutic, and diagnostic procedures has long been recognized as an elementary step in fulfilling the doctor’s obligations to the patient