Privacy commissioner sets context for abandoned health records

By Staff

New guidelines from Ontario’s Information and Privacy Commissioner (IPC) demonstrates how health-care providers can unintentionally abandon medical records, Toronto health lawyer Kate Dewhirst tells

Dewhirst, principal of Kate Dewhirst Health Law, says some health-care practitioners have been surprised by the IPC’s sustained focus on the issue over the last couple years, but its recently released paper on avoiding abandoned health records adds some context.

“It’s always important for privacy officers to keep up with the IPC’s changing interpretations of the rules, but this is particularly useful for all of us in the health sector, to give us an idea of the circumstances in which the issue arises,” she says.

The report reveals that the primary context for the abandonment of medical records comes with the leaving of the practice altogether, or transitioning it from one practitioner to another provider.

“In the primary-care sector, that is a really common issue. You have people leaving practice all the time, whether it’s because of retirement, illness, or even death,” says Dewhirst, who adds that the guidelines are a must-read for medical clinics, family health teams, midwifery birth centres, dental clinics, pharmacies, and other groups of regulated professionals in typically small primary-care settings.

“Anywhere you have a heavy reliance on the clinicians as owners or the main deliverers of care, this document is key. It’s less of an issue in hospitals or long-term-care homes, where they tend to have succession planning mechanisms already built in,” she explains.

“If you don’t try to anticipate these issues in advance, you can run into a circumstance where records are abandoned because there was no clear forethought about what should be done with them on transition,” adds Dewhirst, who pinpoints some key takeaways from the report:

  • Identifying a successor: “This might be a colleague, a business partner or a record management company because the responsibility of a health-record custodian is one that can be outsourced,” Dewhirst says. “But it needs to be done in advance so that if something happens unexpectedly, everyone knows what the records are, where they are, and who is responsible for them.”
  • Record storage: While some practitioners may wish to wash their hands of their responsibilities as a health-record custodian on retirement, it’s not that simple, she says. “You continue to have obligations even after you’ve retired, and if a patient wants a copy of their records, you need to provide them unless you’ve already made arrangements for someone else to do it for you. Using a record storage company is a good practice, but you need an agreement in place to explain what is being done on your behalf. Some patients might be unhappy about paper records being digitized, but that’s not a choice they get to impose on clinicians, as long as the files are available on request.”
  • Finding abandoned records: Dewhirst says it’s not common, but it has happened, that a landlord or new tenant comes across patient records following the bankruptcy or sudden demise of a health-care practice. “If you can’t find the custodian to notify them, then you should approach their regulatory college,” she says. “If a landlord still can’t find anyone, then the IPC should be informed.”
  • Data-sharing agreements: “When a group of clinicians comes together in one practice, there will often be an agreement governing the sharing of paper or electronic records,” Dewhirst says. ”They should specifically address who deals with historic paper files because it’s those that are most often abandoned. That’s especially true when there is a very senior practitioner in the team who has been in practice a long time. When that person retires, it needs to be clear who is responsible for the historic paper records from a safety and access perspective.”

To Read More Kate Dewhirst Posts Click Here