Dear Health Lawyer
I am the medical director for a mental health agency
that serves children. One of our clients was made a
ward of the Children's Aid Society at the age of 13.
She received services from us at the age of 15, but
left our program. Shortly thereafter, she died as a
result of an overdose. The girl's birth mother has now
requested her medical records, saying that she is the
next of kin. At the time of her death, the girl's legal
guardian was the Children's Aid Society. Who's entitled
to the records?
— Trying
to stay out of trouble
Dear Trying
In the case of a person who has died, it's the trustee
for her estate, rather than her parent or guardian at
the time of her death, who is entitled to obtain copies
of the medical records and other personal health information.
It's most likely that the mother
will be appointed estate trustee, but you can not be
sure of this. Therefore it's best to politely explain
to the mother that she must "jump through this hoop"
and officially become trustee for her daughter's estate,
before she can obtain the daughter's records.
Dear Health Lawyer
I specialize in weight-loss treatment for obese patients
and have developed my own protocol for helping patients
lose weight. A patient — who did not comply with
my protocol — made a complaint to the College alleging
that I'm incompetent and my protocol does not work!
I plan to respond to the complaint by sending the College
charts respecting 30 or so of my success stories to
prove that my protocol works. Do I need to obtain patients'
consent to send their charts to the College to show
that I know what I'm doing?
— Know what
I'm doing
Dear Know
To answer your question, I'll remind you that privacy
law does not permit you to share your patients' personal
health information without their consent — even
with the College. However, I would be terribly remiss
if I simply answered this question, because it is important
that I share with you two important lessons for dealings
with the College:
First, never respond to a complaint
without a lawyer's input. No matter how minor or innocuous
the complaint may seem, a lawyer experienced in College
matters can help you to avoid unintentionally making
a statement or admission that could result in major
problems with the complainant (who will see your response)
or the College.
Second, by providing the College
with medical records that they did not request, you
may unnecessarily be risking further College proceedings.
That is what happened to a veterinarian in Ontario who
responded to a complaint of incompetence by producing
additional medical records to show his competence. The
result? He faced disciplinary proceedings resulting
from both the original complaint and from the College's
concerns about the additional charts he submitted. When
the veterinarian sought the court's intervention, the
Ontario Divisional Court ruled that the College "could
not turn a blind eye to matters disclosed by the records."
An experienced health law counsel
would not likely have allowed the professional to expose
himself to the risk of further proceedings, even if
the doctor "knew what he was doing."
|
