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	Potential Liability for Records in a Group Practice: What You Should Know
	by Bernard LeBlanc
	December 2006 - Vol 8 No 3

	As most people are aware, privacy legislation has become an increasingly important part of the life of a professional. Privacy legislation first became a concern for most with the passage of the federal Personal Information Protection and Electronic Documents Act. However, provinces have also been active in this area, particularly in connection with health information. For example, in Ontario, the Personal Health Information Protection Act now governs the collection, use and disclosure of all personal health information in the province. As this is relatively new legislation, many practitioners are unaware of the full extent of their obligations under the Act. A very recent decision of the Information and Privacy Commissioner of Ontario helps to clarify the obligations of practitioners when they are in a group practice. In September 2006, a staff member of the College of Physicians and Surgeons of Ontario (“CPSO”) notified the office of the Information and Privacy Commissioner that a medical and rehabilitation clinic, Martin Grove, had closed its operations and left records behind containing personal health information. The landlord of the building advised CPSO that a tenant had been operating a medical and rehabilitation clinic but had abandoned the property and left boxes of medical records behind. These records included invoices for physiotherapy and massage therapy services, consultation notes and operating room notes relating to patients, financial records containing patient and physician names and the types of medical services provided, physiotherapy sign-in sheets, appointment books and other related materials. The Commissioner had no difficulty finding that the records contained “personal health information” as defined in the Act. Of greater interest was the Commissioner’s finding that the owner of the clinic was a “Health Information Custodian” (“Custodian”) within the meaning of the Act, even though it operated as a group practice. In many cases, it is the practitioners themselves who are the Custodians. However, the fact that it was the corporate owner of the practice that effectively owned and controlled the records, the owner was therefore the Custodian. According to the Commissioner, it was understood by the health care practitioners who worked at the clinic that the clinic owner was responsible for the health care records on the clinic premises and that the practitioners working at the clinic did not have independent access to the clinic. In fact, they were not even provided keys to the clinic. As the Custodian, the Act requires that the Custodian ensure that records of all personal health information are handled in accordance with the Act. Again, the Commissioner had no difficulty concluding that it was unacceptable for the Custodian in this case, when closing its business, to leave records behind containing personal health information and other sensitive information. The Custodian clearly did not ensure that the records were retained, transferred or disposed of in accordance with the Act. The Commissioner also found a number of other breaches of the Act related to the Custodian’s failure to deal properly with the records. Of considerable interest to health care practitioners in a group practice were the further observations that the Commissioner made. For example, in this case the Custodian should have notified patients of the clinic’s anticipated closure at a scheduled appointment, by sending a letter, making a telephone call, printing a newspaper advertisement or leaving a recorded message on an answering machine at the clinic. The Commissioner also suggested that practitioners should inform their patients not only of the fact that they will not be practicing at that location but who will have possession of the records, where requests for access to the records can be made and where a request to transfer the records to another practitioner can be directed. The Commissioner also emphasized the importance of practitioners having written agreements with clinics where they practice. While noting that the health care practitioners who provided services at the clinic were not responsible for secure storage retention and disposal of the records, the Commissioner held that they clearly have an interest in ensuring that the records are handled appropriately. This is particularly true where the Custodian is not a regulated health professional or an independent health facility. According to the Commissioner, “a written contract between the Custodian and the individual health practitioners that clearly set out their responsibilities for record management, including the responsibility for secure storage of the records should the Clinic cease operation, would have gone a long way to avoiding the situation that eventually unfolded”. The Commissioner specifically noted that the College of Physiotherapists of Ontario has an excellent publication that offers advice to its members in the context of a group practice. The College recommends that its members be aware of the standards of the College and obtain the agreement of an employer that the physiotherapist shall be able to practice in a manner that is in compliance with those standards. The College of Physiotherapists also recommends that their members enter into formal agreements so that members can comply with College requirements concerning advertising, billing practices, use of support personnel and record keeping. This is one of the first decisions of the Commissioner relating to personal health information and it likely sets the standard for all regulated practitioners in the province. In cases where regulated health practitioners have more access and responsibility at group practices, there is little doubt that the Commissioner will require practitioners to ensure that they are in the position to comply with the Act even if they are not owners of the clinic. Practitioners should therefore always be aware that even though they may not own a group practice, they still have significant responsibilities within it. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome.]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.