On May 22nd the Ontario Superior Court of Justice ordered medical files to be returned to a clinic by a departing doctor who claimed she had an independent practice and was the legal custodian of the files.
Justice Perell dismissed the defendant’s argument that a corporation could not be a “health information custodian” under the Personal Health Information Protection Act and held that the plaintiff clinic had made out a strong prima facie case that it had such status. His suggestion that the defendant was also a health information custodian could best be understood as a function of the qualified burden of proof on an interlocutory motion given, under PHIPA, there can be only one custodian of a record of personal health information.
Justice Perell’s balance of convenience analysis is noteworthy. He said the following about the public interest in providing patients with access to their personal health information pending final resolution of the dispute:
In considering the balance of convenience, it is appropriate to consider the interests of the patients whose health records have been removed from a health clinic to the home of a health care practitioner. In my opinion, a patient will have better access to his or her health records and the health care practitioner who will treat the patient during Dr. Simon’s semi-retirement will have better access to the health records if the records are at professional offices with normal business hours and full-time staff.
A plaintiff in a similar situation could similarly attempt to make a case for return of records based on a claim to relatively superior security measures, though the stakes of pursuing such an approach would be high.
Note that the plaintiff consented to a term permitting the defendant doctor to make copies of any file relating to a patient she had treated. This is a sensible thing to offer in a dispute over custodianship, but again, is inconsistent with the single custodian rule.