Physicians just doing their jobs
A recent report from Saskatchewan’s privacy commissioner that indicated some physicians inappropriately accessed health records of people involved in the Humboldt Broncos bus crash does not take into account the normal practice of medicine, says the SMA’s President.
The physicians argued that a history of having had contact with a patient in emergency rooms immediately after the crash, or prior to the crash as that person’s family doctor, would mean that the patient would be within the physician’s “circle of care.” This concept would entitle the physician to have access to the records.
However, privacy commissioner Ron Kruzeniski noted that the Health Information Protection Act (HIPA) makes no provision for a “circle of care” argument. Since the physicians were not providing ongoing follow-up care related to the bus crash, it is the privacy commissioner’s view that these physicians had no right to access these patients’ personal health information. The commissioner stated that the physicians did not meet the “need-to-know” requirement in HIPA that would allow them to access individual patient’s personal health information.
SMA President Dr. Siva Karunakaran agrees HIPA doesn’t mention “circle of care.”
“But in my view, and in the way medicine has always been practised, I think most patients assume that if you are their physician, you’re the person who is involved in all facets of their medical care, and that’s something that shows up in the way we look after patients when they’re in hospital,” said Dr. Karunakaran, a specialist who routinely shares information with family physicians and other specialists.
'These are all things physicians do on a routine basis'
Dr. Susan Hayton, the SMA’s Director of Physician Advocacy and Leadership, notes that family physicians practise in similar ways when it comes to caring for patients.
“For example, if I have a patient in hospital I might go and visit them, despite the fact that they are admitted under another physician for treatment or investigation,” Dr. Hayton explained. “If I visit them in hospital after an operation or other medical problem, I might say to the nurse, 'How is my patient doing?' I might go to their chart and look and see for myself how things are going. This is not done for curiosity or to invade the individual’s personal space, it is done to give support to that individual, and to see if there is anything that I can do, as that person’s primary physician, to help my patient get well as quickly as possible.
“These are all things physicians do on a routine basis. The commissioner’s suggestion that you really only have a right to know information when you’re directly asked or when someone sends you that information is not consistent with the way that most physicians provide care, and I don’t think that this is what most patients would want.”
She added that although the “circle of care” concept is not specifically mentioned in HIPA, the document does say that:
a subject individual is deemed to consent to the disclosure of personal health information…for the purpose of arranging, assessing the need for, providing, continuing, or supporting the provision of, a service requested or required by the subject individual.
It is her contention that the service requested or required by the subject individual (patient) is that of family physician – a physician who cares for a patient on a continuum and follows that person through various times in life and during different medical ailments.
Profiles of 10 patients inappropriately accessed
Following the April 5, 2018, crash of the Broncos’ bus, eHealth began monitoring the health records of people involved in the accident. eHealth detected that eight people, mostly physicians, accessed the profiles of 10 patients without authority. Ehealth reported these incidents to the privacy commissioner’s office.
In one case, a Humboldt physician viewed personal information of two people who were his patients. For one of these individuals, the doctor wanted to know the extent of injuries or if the injuries were fatal; his concern about his other patient was the reason for the eHealth access, according to the privacy commissioner’s report.
In another case, three physicians who provided emergency care in Nipawin accessed personal health information after patients were transferred to Saskatoon – one for three patients, the other two for one. Each of these physicians believed they continued to be within the patients’ “circle of care.”
A third case involved a resident who was completing her rural family medicine rotation at an unnamed hospital. She viewed personal health information of three individuals in the crash. The privacy commissioner found that she had seen two of the three people in emergency. She wanted to know if they were admitted and whether she would be able to see them on her next shift. The privacy commissioner’s report notes she expressed concern about the individuals.
SMA president promises lobby for changes
Dr. Karunakaran said the SMA will lobby both the privacy commissioner and legislators for changes in the legislation so that it includes the shadings and nuances encompassed in the notion of the “circle of care” concept.
He notes the Canadian Medical Protective Association, which provides advice on legal matters to physicians, incorporates the concept in its documents. One report, on duties and responsibilities of a physician, notes sharing information among the providers caring for a patient – the circle of care – “is generally permissible based on implied consent.”
Dr. Hayton says that if the ‘need-to-know” provision of HIPA is read strictly, without changes that more clearly allow for ongoing, more inclusive care as currently practised by most physicians, that could have a significant effect on the way some physicians will feel that they need to interact with their patients.
The Privacy Commissioner’s full reports are available here: https://oipc.sk.ca/assets/hipa-investigation-206-2018-207-2018-208-2018-214-2018.pdf