There are times when we want to keep information confidential. This is particularly true of medical records, which many people prefer to keep secret.
In Canada, as elsewhere, access to patient medical records is highly regulated. Medical records are considered confidential and are therefore protected by law. When documents contain sensitive information, not just anyone can access them.
MedLégal’s healthcare lawyers explain what the law says about the right to consult a patient’s medical records.
What is a medical record?
A medical record is set of documents that contains important information concerning a patient’s health.
Medical records are an important communication tool that enables doctors to keep track of their patients. Your medical file includes details like your medical history, test results, diagnoses, treatments and care received.
It also includes personal, identifying information (name, gender, age, date of birth, etc.).
Medical records are maintained by healthcare professionals so they can monitor a patient’s health and make decisions about future care.
Access to medical records: a confidential file
As a general rule, a patient’s medical records are confidential, and only the patient can access them. All other people need the patent’s authorization before accessing their medical records.
Section 19 of the Act respecting health services and social services states: “The record of a user is confidential and no person may have access to it except with the consent of the user or the person qualified to give consent on his behalf. Information contained in a user’s record may, however, be communicated without the user’s consent.”
Only healthcare professionals involved in a patient’s treatment have access to their medical records. However, if necessary, a parent, guardian or curator may authorize consultation of a patient’s medical records without their authorization.
The law stipulates that patients age 14 and above are entitled to access their own medical records, as this coincides with the right to individual informed consent to treatment. Accordingly, all patients aged 14 and over have the right to access their medical records, as a matter of human rights.
In addition, only the patient can authorize others to consult their file. Consequently, a minor aged 14 or over can refuse their parents access to their medical file.
How to access your medical records
To access your medical records, you must send a written request to the person in charge of protecting personal information at the health establishment or clinic where the services were provided. You can obtain this person’s contact information on site or by contacting the Commission d’accès à l’information du Québec.
When a person makes a request on their own behalf, they must do so in writing and provide proof of their identity. If another person wishes to make the request, they must explain their motives and provide solid proof of their relationship with the patient.
Accessing medical records held in a public healthcare institution
A request to consult medical records held in a public healthcare institution must be submitted in writing, signed by the applicant and addressed to the establishment’s Privacy Officer. Relevant contact information can be obtained from the establishment’s archives or from the Commission d’accès à l’information.
The establishment must respond to the request for access within 20 days of receiving it.
If the request is accepted, the individual may consult their file free of charge. Fees may apply to transcribe, transmit or copy the file in whole or in part.
Accessing medical records held in a private healthcare institution
The application process is identical to that for public institution, however private clinics are allowed 30 days from the date of the request to respond.
Online services
Québec Health Booklet
The Québec Health Booklet is an online service that gives individuals access to a variety of personal medical data, such as their medication list, test results, medical examination reports, list of medical services received and information about who has accessed your file. You must register to access this data.
Québec Health Record (QHR)
The Québec Health Record (QHR) is a secure communication platform where authorized professionals can share healthcare information with each other. Information will be automatically shared between any facilities where you receive care, so you don’t need to register. Healthcare professionals can access this information, but patients cannot consult the QHR directly.
What do to do if your request for access is refused
Requests are rarely refused. Refusals are usually cases where when consulting a person’s medical records could cause serious harm to the person concerned or to others.
If your request is refused, the person responsible must provide you with written reasons for the decision and inform you of the steps you can take before the Commission d’accès à l’information. They must also help you understand the refusal, if necessary. You may appeal to the Superior Court of Québec, the Court of Québec or the Tribunal administratif du Québec.
Who can access my medical records?
Apart from their own person, only a patient can decide to allow another person (e.g. spouse, legal representative or lawyer) to view their medical records. The patient must provide written authorization allowing this person access to all or part of the medical file.
If a patient wants to grant others access to their medical records for study, teaching or research purposes, they must give their permission in writing, and access is valid only for the duration of the project.
Note also that government agencies, such as health insurers and health care review boards, may also have access to medical records by law, but only for administrative and compliance purposes.
Specific cases where a patient’s medical records can be accessed without their consent
While the law deems medical records confidential, it also provides for certain exceptions where a patient’s medical records can be accessed without their consent.
Patients under 14 years of age
Children under 14 years of age cannot consult their own medical records. Only their parents or legal guardians have the right to access their files, and they retain that right until they reach 18 years of age, in most circumstances.
Keep in mind that there are certain situations in which parents and guardians can be refused access to medical information. If you are refused access to a child’s medical records, you may appeal the decision.
Incapacitated adults
A court may declare an adult incapacitated if they are unable to take care of themselves or their property. From then on, a representative can make decisions about their care on their behalf. The representative may be a tutor, curator or mandatary.
Note: When a patient cannot make decisions for themselves but has not been declared incapacitated, their spouse or loved one can act as their representative.
A patient’s representative is allowed to access their medical records, but only the information needed to make decisions about their care.
Heirs and family of a deceased patient
When a patient dies, their heirs and family can access their medical records under certain conditions, for example, if they are suing for medical malpractice. In this case, they may only have access to limited information.
Heirs must:
- Submit a detailed request that justifies their need for the information
- Prove that they are heirs.
Family members (spouse and blood relatives) may be permitted access to a part of the record, to obtain medical information such as cause of death and the existence of any genetic diseases.
However, access to a deceased person’s file will be refused if they have submitted a written refusal to the right of access to the Commission d’accès à l’information. Note that this refusal is not taken into account in the case of research into a genetic disease.
Other specific cases where access may be permitted without patient consent
There are other rare cases in which medical records may be accessed without the patient’s consent:
- An official at a medical institution may authorize access to a person’s medical records for study and research purposes. However, the information must be kept confidential.
- If a patient is transferred from one facility to another, the new facility will need the patient’s medical records in order to provide them with adequate care.
- Access to medical records can be granted in order to prevent an act of violence or suicide. The situation must present a real and urgent risk of death or serious injury.
- A court or medical examiner may consult a patient’s medical file in the course of their duties.
- Organizations such as the CNESST and the DYP are allowed access to certain information in medical records in order to protect individuals and provide services.
The disclosure of a patient’s medical records by an establishment in a situation that is not specified above and without the patient’s consent could be grounds for a complaint against the healthcare institution in question.
Can my employer access my medical records?
Employers are not permitted access to employees’ medical records. If your employer demands access to your medical records, you can retain the services of a lawyer.
Some medical information may be provided to an employer in exceptional circumstances:
- If the employer doubts the employee’s physical ability to do the work required, they can ask the employee to undergo a medical examination. The results of the report would then be made available to the employer.
- If the employee is absent from work for a long period of time, the employer can ask for a medical note justifying the absence.
- If the employer asks candidates to undergo physical or psychological aptitude tests as part of the hiring process, they can access the results of the tests.
Only the person in charge of personnel is allowed access to the medical information as listed above. Apart from these situations, employers are not permitted to access employees’ medical information.
MedLégal can help you fight for your medical rights
Access to a patient’s medical records is governed by strict rules. The exceptions that allow access without the patient’s consent only apply to certain types of information. Patient confidentiality remains a fundamental right.
Medical records contain sensitive information that is generally only released at the patient’s discretion. Your medical rights are very important, and it can sometimes be necessary to hire a health lawyer to help you protect them.
MedLégal can provide legal support and help you assert your rights. Contact us today! We can be reached by phone at 514-503-5644 or by email at [email protected].
