Transfer & Access to Medical Records
Physicians should familiarize themselves with the College of Physicians & Surgeons of Manitoba’s Standards respecting the ownership and maintenance of patient records, which took effect on February 15, 2022. The Standards contain detailed information regarding many aspects of medical records, including ownership of medical records, transfer to another physician, disclosure to third parties, reasons for refusing access to medical records, retention and destruction of medical records and termination of practice.
Rights and Entitlements
A patient’s medical record is generally the legal property of the physician or clinic that prepared the record; however, the patient has rights to the record as well.
The patient is entitled to order the transfer of their medical record to another physician, to view or obtain copies of all or part of the record, or to request that copies of all or part of the record be provided to a third party, such as a lawyer or insurance company. This includes the right to transfer, view or obtain copies of all consultants’ reports contained in the patient record. (The physician is not obligated to advise a consultant of the patient’s request, although they may choose to do so as a professional courtesy)
For legal reasons, the original record must remain in the physician’s practice for a minimum of 10 years (or, in the case of minors, 10 years beyond the date the patient reaches age 18). Many patients do not realize that the original record cannot be transferred/released, so this fact should be clearly communicated to patients prior to the transfer/release of any copies.
When a physician has acted as a “Third Party Physician” (for example, when retained by an employer, insurer or defendant in a personal injury lawsuit who has an interest in assessing some aspect of the patient’s medical condition), reports prepared or records relating to examinations conducted at the third party’s request are generally considered the same as any other medical record in terms of the patient’s right of access to the record.
Physicians should familiarize themselves with the College of Physicians & Surgeons of Manitoba’s Standard respecting third party physician obligations.
Transfer/Release of Psychiatric Records
In situations where the patient’s medical record includes services of a psychiatric nature, the physician must be extremely diligent when reviewing the type of information that is being released, either to the patient or to a third party.
Transfer of Medical Records to Another Physician
The following are excerpts from the College of Physicians & Surgeons of Manitoba’s Standard of Practice Maintenance of Patient Records in All Settings.
Release of Medical Records to a third Party such as a Lawyer or Insurance Company
Recommended Protocol. The following is the recommended protocol to follow where a patient requests that a copy of all or a portion of their medical record be provided to a third party, such as a lawyer or insurance company:
- The request is received, either directly from the patient or from a third party. The physician must ensure that the patient has provided the proper written authorization to release their medical record.
- Physicians must be particularly cautious in the case of a patient who has signed a “blanket” authorization for release of information to a third party. It is sometimes the case that, in so doing, the patient has not understood the extent of the release signed by them and may have been operating under the mistaken impression that they had only authorized the release of a more limited scope of medical information.
- It is recommended that where such a blanket release is provided to a physician by a third party, the physician should speak with the patient to ensure that the patient appreciates the nature and extent of the information that is to be released.
- On occasion, a physician may be concerned that the nature of medical information that a patient has authorized to be released to an insurance company might be used by the insurance company to deny the patient’s claim. In such circumstances, the physician should be satisfied that the patient has understood the nature and extent of information that will be released and has provided proper authorization for the release.
- The patient or third party who requested the information is advised that there will be a fee for the release of information and is given an estimate of that fee (see Recommended Fees <link to Sub Section B under recommended fees>).
- The patient or third party is asked to sign and return a form acknowledging that they have been advised of the fee and will pay the fee upon the release of the information.
- The record is reviewed and the relevant portions copied. The patient or third party is provided with a statement of account for the service and is advised that they may either:
- attend personally at the physician’s office to pick up the information and pay the fee at that time, or
- ask that the requested information be delivered to the third party, in which case the physician is entitled to request payment of the fee in advance. In such cases any payment received may not be cashed or deposited until the record has been delvier.
Patient Access to Medical Records
The following are excerpts from the College of Physicians & Surgeons of Manitoba Standard. It sets out the rights of patients to either view their medical record or to obtain copies of their medical record and the circumstances in which it is appropriate for a physician to refuse a patient access to their medical record:
The Personal Health Information Act (PHIA) provides that, subject to PHIA, an individual has a right, on request, to examine and receive a copy of their personal health information. This does not entitle the patient to the original record and does not entitle the patient to remove the record from the physician’s premises.
Pursuant to PHIA:
- physicians have an obligation to respond as promptly as the circumstances require, but in any event within 30 days of receiving the individual’s request. A failure to respond within this time frame is treated as a refusal of the request,
- physicians may require the request to be made in writing,
- physicians have a duty to make every reasonable effort to assist an individual making a request and to respond without delay, openly, accurately and completely.
In responding to a request, a physician has three options:
- make the personal health information available for examination and, if asked, provide a copy,
- advise in writing if the information does not exist ofr cannot be found, or,
- advise in writing if the request is refused, in whole or in part, for a specified reason described in PHIA , and advise of the person’s right to make a complaint under PHIA.
When granting a patient access to review an original record, it is recommended that the physician or a member of the physician’s staff supervise the review.
Prior to granting access to a record, the physician should review the record to ensure that the record does not contain:
- the physician’s own personal material
- information concerning other individuals misfiled on the record, or,
- material excluded from the disclosure pursuant to PHIA
Reasons for Refusing Access
Pursuant to Section 11 of PHIA, physicians are not required to permit examination or copying of their personal health information if:
- knowledge of the information could reasonably be expected to endanger the health or safety of the individual or another person;
- disclosure of the information would reveal personal health information about another person who has not consented to the disclosure;
- disclosure of the information could reasonably be expected to identify a third party, other than another trustee, who supplied the information in confidence under circumstances in which confidentiality was reasonably expected;
- the information was compiled and is used solely
- for the purpose of peer review by health professionals,
- for the purpose of review by a standards committee established to study or evaluate health care practice in a health care facility or health services agency,
- for the purpose of a body with statutory responsibility for the discipline of health professionals or for the quality or standards of professional services provided by health professionals, or
- for the purpose of risk management assessment; or
5. the information was compiled principally in anticipation of, or for use in, a civil, criminal or quasi-judicial proceeding.
Physicians are required, to the extent possible, to sever the information that cannot be examined or copied and disclose the balance.
The patient has a right to make a complaint where access is denied. The Ombudsman has jurisdiction to investigate a complaint and, if an investigation is undertaken, the physician is given an opportunity to make representations respecting the denial of access.
Recommended Protocol for Patient Access
The following is the recommended protocol to follow where a patient asks to be provided with a copy of their medical record:
- The request is received. If necessary, the patient is contacted to clarify whether he/she is seeking a copy of all, or only selected portions, of his/her medical record.
- The record is located and reviewed to estimate the cost of providing a copy to the patient. Recommended fees are explained in the “Recommended Fees” section, below.
- The physician’s office staff communicates with the patient and explains that there will be a charge for providing them with a copy of their medical record and what that charge will be. The patient is asked to sign and return a form acknowledging that they have been advised of the charge and will pay the fee upon receipt of the copy of the record.
- The record is reviewed and the relevant portions copied. The patient is provided with a statement of account for the service, and is advised that they may either:
- attend personally at the physician’s office to pick up the record and pay the fee at that time, or,
- ask that the record be delivered to them, in which case the physician is entitled to request payment of the fee in advance. In such cases, any payment received may not be cashed or deposited until the record has been delivered.
Fees for permitting examination of and/or providing a copy of records must not exceed the fee provided for in the PHIA Regulations. (If the PHIA Regulation contradicts the Doctors Manitoba rates for uninsured services, the Regulation prevails.)
To date, no PHIA Regulation has been established regarding fees for permitting examination and/or providing a copy of a medical record. Therefore, physicians are at liberty to set their own fees for these services and may use the Doctors Manitoba recommended fees to guide them.
Recommended Fee Calculation
Base Fee1 ($50.00)
+ Fee for Review of Record2
+ Photocopy Fees ($.30/page)
+ Courier/Mailing Charges
- Base fee includes receiving and clarifying request, locating and retrieving record, preparing record for copying (including removing paper clips and staples) and staff time for photocopying. Physicians may consider reducing the base fee where a record is extremely brief.
- If a review of the record is conducted prior to the transfer, a fee for the review may be charged. This fee should be calculated by multiplying the physician’s hourly rate by the time spent in conducting the review. If someone other than the physician conducts the review, this charge should be adjusted accordingly.
- (Notice of these fees should be posted and accessible to patients).
Patient Viewing and Fees
Where a patient has requested an opportunity to view, rather than receive copies of, their medical record, the fee charged should be calculated by multiplying the hourly rate of the physician supervising the viewing by the patient by the time spent in supervising. If someone other than the physician supervises, this charge should be adjusted accordingly.
Third Parties and Fees
When a request for release of medical information to a third party such as a lawyer or insurance company is received, it is sometimes unclear who is responsible for payment for the services associated with the release (i.e., the third party or the patient). Prior to the release of information, the physician must clarify this issue and thereafter advise the appropriate party of the estimated fee.
It is often the case that when a patient’s insurance company requests the release of medical information, the patient authorization that accompanies the request includes a provision that the patient is responsible for all costs associated with the release of information.
In such cases, it is recommended that the physician discuss this with the patient prior to the release of information, so that the patient clearly understands that payment will be their responsibility. If the patient has concerns with respect to these costs being their responsibility, the physician should advise them to discuss this directly with the insurance company. The physician is not privy to the terms of a patient’s insurance coverage, which includes payment for release of medical information.