In 1992, the Supreme Court of Canada confirmed a patient’s right to access information in their medical record.1 Independent medical examinations (IMEs) represent one situation where an individual may seek access to information outside of a standard doctor-patient relationship. Individuals have a general right to access their personal information in independent medical examination files. However, there are notable exceptions.
Independent medical examinations differ from medical records
IMEs and medical records differ in many ways. Medical records are created in the course of treating a patient and are intended to summarize and record the care provided. In contrast, physicians conducting IMEs usually do not have a treating relationship with the “examinee.” Rather, the IME physician is retained to provide their perspective on an individual's medical needs or condition – often in circumstances where benefits, compensation, or further treatment are being considered or where a request has been made by an insurance agency or other third party.
Physicians conducting IMEs will typically retain files that include various types of information from multiple sources, including:
- information received from the third party requesting the examination (e.g. contracts regarding the scope of instructions, timelines, and fee arrangements)
- documents relied on by the IME physician in conducting the examination (e.g. ancillary medical information, video surveillance, or transcripts of evidence given in the course of legal proceedings)
- notes taken by the physician during the examination
- the working notes of the physician
- the final IME report containing the physician’s findings and opinion
- the physician’s invoice for services rendered to the third party.
Limits to accessing information about independent medical examinations
While medical records and IMEs serve different purposes, they both contain an individual’s personal information. The right to access personal information contained in IMEs is confirmed through privacy legislation, and the general rule is that a physician must provide an examinee with access to the personal information contained in their IME upon request.
However, all Canadian privacy legislation includes exceptions that may limit what an examinee can access within the IME. Exceptions include:
- information protected by solicitor-client privilege
- confidential commercial information
- information that could lead to a reasonable expectation of someone being harmed if access were granted
Courts have confirmed that an examinee has a right to access parts of the physician’s IME that include the examinee’s personal information. However, physicians may redact their own remarks, observations, notes, and deliberations. In other words, a physician can limit access to information that reflects their own thought processes, because this is their personal information, not the personal information of the examinee.
Based on these statutory and common-law exceptions, a physician who conducts an IME may have reasonable grounds to redact certain information contained in the IME, such as instructions received from the third party requesting the IME, and certain portions of the physician’s personal notes.
Before providing an examinee with access to information contained in the IME, a physician should consult with the third party who requested the IME, and with the CMPA, to discuss the specific facts and circumstances of the case and to determine whether any of the exemptions apply or if there are other grounds to redact information from the records (e.g. contractual obligations).
Fees for accessing IMEs
Physicians are expected to charge only nominal fees for responding to access requests, including requests for access to IMEs. Many privacy commissioners have held that modest flat fees are permissible for performing one or more tasks related to providing access (e.g. locating and retrieving records, preparing the record for copying, and photocopying the record). Physicians should not refuse access simply because an individual has not paid the fee. Some regulatory authorities (Colleges) and medical associations and federations have guidelines on what constitutes a reasonable charge. Physicians should determine whether such guidelines apply in their jurisdiction.
The bottom line
Individuals have a general right to access their personal information whether it appears in their medical record or in an IME. With IMEs, there are exceptions that may limit the information a physician is required to produce.
References
- McInerney v. MacDonald, [1992] 2 SCR 138
