Occupational Health Transfer of Records


By Ann Tapp

Corporate mergers, downsizing and buy-outs can have an impact on the practice of occupational health nurses. With these changes, occupational health departments are frequently transferred to a new corporation, or existing occupational health services may be eliminated. This can create multiple dilemmas for the employer, employee and for the occupational health nurse who is the custodian of the employee's health records.

One of the major concerns for the occupational health nurse faced with such changes is what to do with the employee's medical records and how to preserve the confidentiality of these records. This article will address your obligation to maintain confidentiality, the possible consequences of breaching confidentiality and the options to consider to protect yourself before transferring health care records.

The obligation

The obligation of all health care professionals to maintain the confidentiality of client health information is clearly reflected in case law, relevant statutes, standards of practice, and in professional codes of ethics.1 For registered nurses, this professional responsibility is set out in the Canadian Nurses Association's Code of Ethics for Registered Nurses and is also included in the code of nursing ethics adopted by the provincial or territorial nursing association where the nurse is practising. The fourth primary value in the CNA Code of Ethics is worded as follows:

"Nurses safeguard the trust of clients that information learned in the context of a professional relationship is shared outside the health care team only with the client's permission or as legally required."2

In addition to the provisions in codes of ethics, in many jurisdictions, there are provisions in the legislation or regulations governing the practice of nursing that define professional misconduct. In Ontario, for example, the act of "giving information about a client to a person other than the client or his or her authorized representative except with the consent of the client or his or her authorized representative or as required or allowed by law"3 constitutes professional misconduct.

Possible consequences

Because of these professional obligations, if an occupational health nurse fails to maintain the confidentiality of a client's health records and inappropriately releases this information to the employer, or, transfers the health records to the employer without safeguarding the confidentiality of those records, there can be negative professional and legal consequences. The client may lodge a formal written complaint to the nurse's licensing body and professional discipline proceedings could be initiated. The end result may be a finding of professional misconduct because of a failure to protect the confidentiality of the client's health information. As well, a civil lawsuit alleging negligence, breach of contract, breach of confidentiality and, in some cases, defamation may also be commenced.

Although there are few reported cases in Canada involving alleged breach of confidentiality by health care providers, there are two recent cases dealing with this issue. In both cases, the court found health care providers civilly liable because of an inappropriate release of confidential health care information. The first case, Mammone v. Bakan,4 involves a physician who was served with a court order to produce a patient's medical records for a time period on or after March 31, 1982. The physician inadvertently disclosed medical records in his possession for medical treatment that took place prior to March 31, 1982. Because of the unauthorized disclosure, the patient sued the physician for breach of contract. The court decided that the duty to maintain confidentiality was an implied term of the contract between the patient and physician, and the physician was found liable for damages.

The second case is Peters-Brown v. Regina District Health Board.5 In this case, the plaintiff was a prison guard who was treated at the defendant hospital for hepatitis. Five years later the health care facility created a list of patients, including the plaintiff, who required special precautions related to the handling of their bodily fluids. This list was taped onto a computer in the Emergency Department that was accessible to numerous people, including ambulance attendants, police officers and corrections officers. The plaintiff also found a copy of this list, which included her name, posted at her workplace. The plaintiff was very upset by the disclosure because the list had AIDS overtones; she initiated a civil lawsuit against the hospital alleging that: the hospital had breached its duty to maintain the confidentiality of her health care record, the disclosure was negligent, and she had been defamed. She was successful with her negligence claim and the hospital was found liable for breaching its duty to maintain the confidentiality of her medical records. The claim for defamation was dismissed.

Protecting yourself

What can you do to protect yourself from such legal actions or professional discipline? When downsizing or corporate restructuring occurs, you may be subjected to considerable pressure from your employer to simply turn over the employees' health records or the keys to the records. Remember, you cannot do so without ensuring that you have taken appropriate steps to protect the confidentiality of each employee's health records. This will require discussions with the employer to determine the best means of transferring the records, maintaining the confidentiality of employees' records and informing the employees of the location of their health records. Options that should be considered before transferring the records include:

  • transferring the records to another health professional within the organization, either on the same site or at a head office;
  • transferring the records to the employees' family physicians; or
  • having the health records retained by a representative of the employer for whatever retention period is applicable, with the employer providing the nurse with a written agreement that stipulates how the retention and confidentiality of the health records will be maintained.6

By taking these steps, you will limit your risks of becoming involved in a civil lawsuit or professional discipline proceedings for an alleged breach of confidentiality. If you have further questions related to dealing with this type of situation, there are a number of resources available to assist you. Eligible nurses may consult with a nurse lawyer at the Canadian Nurses Protective Society, a practice advisor at their professional licensing body, provincial occupational health nursing interest groups, and, in Ontario, the Ontario Association of Occupational Health Nurses. In some cases, an independent legal opinion may be necessary to resolve the issues that may arise.

References:

  1. infoLAW™, vol. 1, no. 2, Sept. 1993, reprinted Nov. 1996.
  2. Canadian Nurses Association, Code of Ethics for Registered Nurses, March 1997, 15.
  3. O. Reg. 799/93 under the Nursing Act, 1991, S.O. 1991, c.32, s.1(10).
  4. [1989] B.C.J. No. 2438 (B.C.S.C.).
  5. (1995), 136 Sask. R. 126 (Q.B.); aff'd (1996), 148 Sask. R. 248 (C.A.).
  6. College of Nurses of Ontario, Nursing documentation standards, 1996, 20.

Note: This article has been reprinted with permission from Canadian Nurse, March 2000.

All articles appearing in this section are for information purposes only and should not be construed as legal advice. Readers should consult legal counsel for specific advice.

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