This comment is to provide physicians with some assistance with the implementation of the Personal Health Information Protection and Access Act (PHIPAA). The following comments are provided based on the currently available information. They should be considered tentative.
As of September 1st, 2010, physicians, and others who collect health information on an individual, will be subject to PHIPAA. This Act modifies certain obligations regarding Personal Health Information. It creates the office of the Privacy Commissioner who may adjudicate disputes which arise regarding information and may, in some circumstances, impose financial penalties.
First of all, it should be noted that the Act does not significantly change physicians’ basic professional obligations regarding preparing accurate records, retaining them for the appropriate period of time, and transferring such information when requested by a patient.
The Act does clarify the patient’s right to review their own records. Within thirty days of any such request, the physician is obligated to make any record accessible for a patient’s inspection. This should be done without charge to the patient. If the patient requests assistance in understanding the record, the Act does not preclude the physician billing for such.
Also under PHIPAA, patients are entitled to a copy of their complete record within thirty days of a request. Regulations under PHIPAA provide a maximum charge for photocopying of .25/page unless the actual cost is higher, with no additional fees for retrieval except in exceptional circumstances. Postage or courier services may be recovered at actual costs.
The physician may decline to provide information from a patient’s record under a select number of circumstances, the most common of which would be where the disclosure would cause harm to the patient or another. This is not a change from current obligations. The Act may also modify the patient’s right to access information which has been provided by a third party in confidence. In any case, if a physician is declining to disclose certain information, they should make an effort to sever such from the rest of the record which can be disclosed.
In most cases, the Act does not entitle a patient to a translation of the record into their preferred language. The only exception is the obligation of a Regional Health Authority to translate a record if a patient is under the care of a physician who does not understand the language in which the record was prepared.
Generally speaking, the Act does not create any barrier to sharing of information among those involved in the patient’s care. For example, the sharing of information among referring physicians and consultants, as well as other professionals involved with the patient, is not affected.
The Act does clarify the right of access to patients’ records for family members of patients who become incompetent, as well as following the death of the patient.
Patients may request “corrections” to their records. If the physician agrees, this would normally be done as an addendum, making clear that an original record has been modified. If the physician objects, there is an obligation to note the objection and for such to become a part of the record.
As is the case now, if there is a theft, loss, or disclosure of records, the physician is obligated to advise any patients who may be affected, unless the physician reasonably believes there will be no disclosure of their personal information, nor any other adverse impact on the patient.
The Act also clarifies obligations when a physician transfers a practice to another, closes a practice, or dies, leaving records in the custody of the estate.
While the Act does not modify a physician’s obligation to retain records as required by the College, it does require the physician to keep a record of any files destroyed.
Physicians seeking further clarification should feel free to contact the College office.
Ed Schollenberg, MD, LLB, FRCPC
Personal Health Information Protection and Access Act