McInerney v. MacDonald [1992] 2 S.C.R. 138: Medical records -- Patient's right of access

Present: La Forest, L'Heureux-Dubé, Gonthier, Stevenson and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Physicians and surgeons -- Medical records -- Patient's right of access -- Patient requesting copies of her complete medical records -- Patient's physician delivering copies of her notes but refusing to produce copies of reports and records received from other physicians -- No legislation in province regulating patient's access to information contained in medical records -- Whether patient entitled to inspect and obtain copies of her medical records upon request.

A patient made a request to her doctor for copies of the contents of her complete medical file. The doctor delivered copies of all notes, memoranda and reports she had prepared herself but refused to produce copies of consultants' reports and records she had received from other physicians who had previously treated the patient, stating that they were the property of those physicians and that it would be unethical for her to release them. She suggested to her patient that she contact the other physicians for release of their records. The patient's application in the Court of Queen's Bench for an order directing her doctor to provide a copy of her entire medical file was granted. A majority of the Court of Appeal affirmed the judgment.

Held: The appeal should be dismissed.

In the absence of legislation, a patient is entitled, upon request, to examine and copy all information in her medical records which the physician considered in administering advice or treatment, including records prepared by other doctors that the physician may have received. Access does not extend to information arising outside the doctor-patient relationship. The patient is not entitled to the records themselves. The physical medical records of the patient belong to the physician.
The physician-patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty, to hold information received from or about a patient in confidence, and to make proper disclosure of information to the patient. The doctor also has an obligation to grant access to the information used in administering treatment. This fiduciary duty is ultimately grounded in the nature of the patient's interest in the medical records. Information about oneself revealed to a doctor acting in a professional capacity remains, in a fundamental sense, one's own. While the doctor is the owner of the actual record, the information is held in a fashion somewhat akin to a trust and is to be used by the physician for the benefit of the patient. The confiding of the information to the physician for medical purposes gives rise to an expectation that the patient's interest in and control of the information will continue. The trust-like "beneficial interest" of the patient in the information indicates that, as a general rule, she should have a right of access to the information and that the physician should have a corresponding obligation to provide it. The patient's interest being in the information, it follows that the interest continues when that information is conveyed to another doctor who then becomes subject to the duty to afford the patient access to that information. Further, since the doctor has a duty to act with utmost good faith and loyalty, it is also important that the patient have access to the records to ensure the proper functioning of the doctor-patient relationship and to protect the well-being of the patient. Disclosure serves to reinforce the patient's faith in her treatment and to enhance the trust inherent in the doctor-patient relationship. As well, the duty of confidentiality that arises from the doctor-patient relationship is meant to encourage disclosure of information and communication between doctor and patient. The trust reposed in the physician by the patient mandates that the flow of information operate both ways.
The patient's general right of access to medical records is not absolute. If the physician reasonably believes it is not in the patient's best interests to inspect the medical records, the physician may consider it necessary to deny access to the information. Considering the equitable base of the patient's entitlement, when a physician refuses a request for access, the patient may apply to the court for protection against an improper exercise of the physician's discretion. The court will then exercise its superintending jurisdiction and may order access to the records in whole or in part. The onus lies on the physician to justify a denial of access. 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 patient's request unless there is a significant likelihood of a substantial adverse effect on her physical, mental or emotional health or harm to a third party.
Here, there is no evidence that access to the records would cause harm to the patient or a third party; nor does the doctor offer other compelling reasons for non-disclosure. Accordingly, the patient is entitled to her medical records.

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