WHO “OWNS” PATIENTS, PATIENT CHARTS, AND THE RIGHT TO CONTINUE PROVIDING TREATMENT TO PATIENTS?
In the business of healthcare, it is not uncommon for conflicts to develop over the ownership of patients charts, the ownership of patient information, and the right to cocaretinue treating patients. Typically, such disagreements arise when healthcare businesses such as clinics are dissolved or re-organized, or when treatment providers such as dentists, physicians, pharmacists, naturopaths, chiropractors, optometrists, or massage therapists (among others) leave for another employer or to set up their own practice.
Our firm frequently assists individual healthcare professionals and healthcare businesses who find themselves in the midst of such disputes.
Our clients often ask us the following questions in the course of an initial meeting:
Who owns patient charts?
Who has the right to access patient charts?
Do the patients have the right to choose who they continue to receive treatment from?
What obligations does a departing treatment provider have to patients?
What about non-compete and non-solicit clauses?
We believe that every healthcare provider and healthcare business should be familiar with general information about the above questions. We have summarized some of the most relevant information on these issues below.
Who owns patient charts?
The Supreme Court of Canada has held that the patient who owns the information contained in the patient’s medical record. However, ownership of the physical or electronic chart itself belongs to the organization who created the record, for instance a healthcare clinic, hospital, or individual healthcare provider [McInerney v. MacDonald,  2 SCR 138].
Because the patient owns the information contained in the patient’s medical record or medical chart, subject to narrow exceptions the patient has the right to access that information.
The patient is not “property”
Canadian courts have repeatedly held that patients and clients who are in a professional relationship have a different status than corporate “customer lists”. Because of this, courts have been typically unwilling to see patients as mere “property” of the clinic or healthcare business. An Ontario Court has summarized the law on this issue as follows:
…professionals, such as doctors, dentists and lawyers do not have the same proprietary right to their patients or clients as does a corporation to its customers. Professionals provide a personal service and establish a personal relationship with their clients, regardless of where or how the client or patient arrived at the firm or practice. The client or patient ought not to be “handcuffed” to the business. Clients should have a freedom of choice. [Goodman v. Newman (1986), 13 C.P.R. (3d) 48]
Regulated health professionals such as dentists, physicians, pharmacists, naturopaths, chiropractors, optometrists, or massage therapists (among others) may have regulatory obligations imposed by their College as to keeping patients informed about their departure from a practice location, change in practice location, or other disruption in care.
For example, the College of Physicians and Surgeons of Ontario recommends that physicians who cease to practice or relocate notify all patients who have an expectation of continuity of care. [see CPSO Policy #2-07]. Other regulators may have similar expectations.
Non-compete and non-solicit clauses
In some situations, treatment providers are subject to contractual “non-compete” and “non-solicit” clauses. Such clauses must be considered alongside the above issues, particularly if such clauses conflict with the obligations outlined above.
“Non-compete” clauses purport to limit the extent to which a departing treatment provider can engage in competition with the former employer. “Non-compete” clauses typically contain a “radius” clause as well as a time limit for the duration of the clause.
“Non-solicit” clauses purport to limit the departing treatment provider’s ability to treat the patients of the former employer.
Courts have held that only reasonable “non-compete” and “non-solicit” clauses are enforceable. However, what is reasonable will vary depending on the facts of the case: i.e., the nature of the services in issue, the geographical location, etc.
As is apparent from the above, business disputes over patients are often challenging legal problems which involve, at the very least, aspects of contact, employment, regulatory, and privacy law. The information outlined above is only a summary of the issues which may arise in these complex situations.
Individuals and businesses who become involved in disputes over patients, patient care, and patient charts should seek legal advice at the earliest possible opportunity, so as to protect their interests and ensure compliance with all relevant laws.