McInerney v. MacDonald

[1992] 2 S.C.R. 138
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The respondent, patient, had requested copies of her complete medical records from her physician, the appellant. The patient’s physician provided copies of all the records that she had prepared to the patient. However, she refused to provide copies of the medical reports and records, which she had received from other physicians who had treated the patient. She stated that those records were the property of other physicians who had prepared them, and it was against medical ethics for her to release them to the patient. She further suggested that the patient directly contact the other physicians to access her records. There was no legislation regulating patient’s access to information contained in medical records.

The patient then approached the New Brunswick Court of Queen’s Bench for seeking an order directing the physician to provide access to information contained in her entire medical records. The Court allowed the application and this decision was further affirmed by the Court of Appeal in a majority decision. Therefore, the physician obtained leave to appeal to the Supreme Court of Canada.

The primary issue in this case was whether in the absence of legislation a patient is entitled to inspect and obtain copies of her/her medical records upon request to the doctor.

The Supreme Court upheld the lower courts’ decision that the patient was entitled to copies of the documentation in her medical records and hence dismissed the appeal.

The Court held that as a general rule, in the absence of regulatory legislation, a patient has a right to access the information contained in his/her medical records upon request to the physician administering advice or treatment. It stated that the physician, institution or clinic which compiles medical records owns the physical records and must have continued access to a patient’s records in order to provide proper treatment and diagnosis, however the patient still has a continuing interest in the use of information contained within such records and in controlling access to it. Moreover, medical records contain information that is highly private and personal to the individual going to the personal integrity and autonomy of the patient.

The Court held that the doctor-patient relationship is one in which the patient places trust and confidence in the doctor and hence is a fiduciary relationship. Hence, the patient should have a general right of access to information in the records based on equitable principles. Also, the doctor had a corresponding obligation to provide access to the information. The court also stated that one important aspect of the doctor-patient relationship is the duty of the doctor to act with utmost good faith. The fulfillment of this duty can only be examined when the patient has access to her records.

However, the court stated that this general rule is not absolute in nature. In certain circumstances, the physician may refuse to grant access to the medical records if there is a real potential for harm to the patient or to a third party. The Court held that in this case, there was no evidence that by giving access to medical records to the patient would cause harm and hence the patient should be granted access to her medical records.

“When a patient approaches a physician for health care, he or she discloses sensitive information concerning personal aspects of his or her life. The patient may also bring into the relationship information relating to work done by other medical professionals. The policy statement of the Canadian Medical Association cited earlier indicates that a physician cannot obtain access to this information without the patient's consent or a court order. Thus, at least in part, medical records contain information about the patient revealed by the patient, and information that is acquired and recorded on behalf of the patient. Of primary significance is the fact that the records consist of information that is highly private and personal to the individual. It is information that goes to the personal integrity and autonomy of the patient…” (Page 13)

 

…one of the duties arising from the doctor-patient relationship is the duty of the doctor to act with utmost good faith and loyalty. If the patient is denied access to his or her records, it may not be possible for the patient to establish that this duty has been fulfilled. As I see it, it is important that the patient have access to the records for the very purposes for which it is sought to withhold the documents, namely, to ensure the proper functioning of the doctor-patient relationship and to protect the well-being of the patient. If there has been improper conduct in the doctor's dealings with his or her patient, it ought to be revealed…(Page 18-19)

 

“In my view, the onus properly lies on the doctor to justify an exception to the general rule of access. Not only is the information in some fundamental sense that of the patient; the doctor has primary access to it. In comparison, the records are unavailable to the patient. To some extent, what the documents contain is a matter of speculation for the patient. Consequently, there is a marked disparity in the ability of each party to prove its case. The burden of proof should fall on the party who is in the best position to obtain the facts.” (Page 21)

 

“…. Assessing the "best interests of the patient" is a complex task. Non-disclosure can itself affect the patient's well-being. If access is denied, the patient may speculate as to what is in the records and imagine difficulties greater than those that actually exist. In addition, the physical well-being of the patient must be balanced with the patient's right to self- determination. Both are worthy of protection. In short, patients should have access to their medical records in all but a small number of circumstances. In the ordinary case, these records should be disclosed upon the request of the patient unless there is a significant likelihood of a substantial adverse effect on the physical, mental or emotional health of the patient or harm to a third party.” (Page 25)

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