Minimize Conflicts about Custody of Records

A requirement for written agreements that establish custodianship and clear accountabilities regarding medical records has been expanded in a recently approved policy.

Disputes about ownership of medical records is an issue that frequently arises in the context of the College’s regulatory activities, specifically through complaints and calls to our advisory services. Questions or conflicts related to ownership and rights of access often arise when a physician leaves a practice and there is no written agreement about records ownership. Such conflicts can prevent physicians from meeting their professional obligations.

Written agreements help to minimize conflicts and clarify rights and responsibilities. This, in turn, promotes quality care and ensures compliance with the recently approved Medical Records Management policy. Additional information about what to address in agreements has also been included in the policy along with direction to additional resources for establishing agreements.

Although the draft policy that was circulated in the external consultation contained a provision requiring physicians with shared record-keeping systems (e.g. group practices) to have written agreements about records, the provision didn’t adequately address conflicts over records between physicians and clinics owners who are often the owners of the EMR licence. As such, the provision has been updated.

“The move away from sole practitioner to group practice models of care and increased use of electronic medical records (EMR) can lead to ambiguity and confusion about physicians’ roles, obligations and responsibilities regarding medical records management, particularly where there is a shared EMR system or where the physician is not the owner of the clinic and/or the EMR license,” said Dr. Angela Carol, a College medical advisor on the policy’s working group.

The policy requires physicians to have agreements in place prior to the establishment of a group practice, business arrangement, or employment, or as soon as possible afterward. Physicians who do not currently have written agreements that explicitly address custodianship must establish them as soon as possible. Reviewing existing agreements is also worthwhile and can help ensure compliance with the new policy and applicable legislation.

With an understanding that conflicts regarding medical records are not always within the physician’s control, the policy now requires physicians to take “all reasonable steps within their control” to prevent a conflict over medical records from compromising patient care.

Under Personal Health Information Protection Act (PHIPA), those who have custody or control of medical records have ultimate responsibility for ensuring records are maintained in accordance with legal requirements. Also, physicians who do not have custody or control of their patient medical records also have legal, ethical and professional obligations regarding records.