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Chapter 9.docx

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Western University
Law 3101A/B
Robert Solomon

Chapter 9: Documentations and Related Issues Part 1: Record Keeping A. What is an Adequate Patient Record? - A court would view an adequate patient record as including all recorded information held by a health professional or agency relating to a patient’s treatment - At a minimum, the record should contain all the information necessary to coordinate and carry out the patient’s treatment - Specific content and level of details should be based on the patient’s needs - The amount of information recorded and level of detail will increase with the seriousness of the problem and the risks associated with the proposed intervention - Level of detail should also reflect the health professional’s assessment of the patient o i.e. Record entry for a stable, longstanding patient vs. new patient or one that is immature, rash, or manipulative - The amount of information recorded would likely be the greatest at the outset of the relationship o Level of detail would likely decrease once a treatment plan has been decided upon and implemented - Record should contain sufficient detail and be organized in a manner that would allow a third party to recreate what the health professional observed and thought, what he or she did, and why that approach as adopted - The record should also permit a colleague to step in and assume responsibility for the patient’s care, without detriment to the patient o The record should provide continuity of care B. Legal Importance of Record Keeping Policies and Practices - Good records discourage frivolous or unermeritorious legal challenges and claims 1) Role of Records in in Litigation a. The record of a practitioner is admissible in legal proceedings. It provides the basis upon which a court will reconstruct the facts of a case b. A practitioner is allowed to use the record to refresh his or her memory in giving testimony. This will greatly increase the practitioners credibility c. A practitioner’s credibility will be greatly influence by the state of the record. A well- written, comprehensive, and organized record suggests that the practitioner is careful and competent d. A practitioner’s record is often the single most important factor in determining the outcome of any litigation. It serves as the basis for trial preparation, the seeking of expert opinions, and the expert’s testimony e. The record may play an even greater role in litigation concerning counseling because that will rarely be any physical evidence 2) Penal Consequences - Federal criminal law and various provincial laws create statutory obligations to make and maintain specified records - Failure to comply with these provisions may constitute a federal or provincial offence 3) Professional Consequences - Failure to keep adequate records is a specific ground for professional misconduct C. Civil Liability for Negligent Record Keeping Peters-Brown vs. Regina District Health Board - Plaintiff, a prison guard, was treated for her hepatitis at the defendant hospital - 5 years later, her named appeared on a list of persons described as “previously identified cases,” whose bodily fluids had to be handled with caution - The list was taped to a computer in the an area of the emergency department that was supposed to be restricted to specified hospital staff, but police, ambulance, and prison personnel were occasionally allowed access - A copy of the list ended up being posted in the staff room at the prison where the plaintiff worked - She sued the hospital on several grounds, including negligence - Court did not fault the hospital for compiling the list for use in a restricted part of the emergency department to which only relevant hospital staff had access - The hospital was negligent in failing to ensure that unauthorized individuals were excluded from the area o In the absence of measure to exclude outsides, it was foreseeable that the list would be seen by unauthorized inviiduals - The hospital was held liable in negligence for the careless handling of the plaintiff’s confidential medical information D. Guidelines for Record Keeping - Record should provide a comprehensive, accurate, and honest assessment of what the practitioner observed, considered, chose to do, and why he or she did it - A practitioner must ensure that the record honestly reflects his or her own assessment of the situation, even when pressured by patients, employers, or third parties to support their preferred outcome 1. All statements should be written in an objective, professional tone. The author should refrain from using pejorative or judgmental langue, or terms that suggest ill-will, malice, or sarcasm 2. Entries should be made in chronological order 3. Subsequent alterations or additions should be made openly, with the original entry left intact and legible 4. Any corrections should be initialed, signed, and dated 5. The author should print his or her name, sign the record entry, and indicate his or her position 6. The record should be made in dark ink and be legible 7. Records should be complete, as any omissions will likely be interpreted negatively 8. The author should limit the record to information that is relevant to the patient’s treatment 9. The more sexually, emotionally, or legally sensitive the information is, the more important it is to ensure that it is likely relevant to the patient’s treatment. If sensitive information needs to be recorded, it may be appropriate to record the information in general terms 10. Items that are relevant should not be omitted simply because they are embarrassing or uncomplimentary. 11. Information should be recorded when the intervention or event occurs, or as soon as possible thereafter. 12. Entries should be made by the practitioner providing the service 13. If an entry is made by a third party, it should be verified by the person who performed the service E. Falsifying Records - Knowingly falsifying records may constitute one or more Criminal Code offences including perjury, fabricating evidence, forgery, and fraud Part 2: The Legal Quagmire Governing Record Keeping A. Introduction - A patchwork of overlapping common law, equitable, and statutory principles govern these issues - Most health professionals are subject to three sets of legal record keeping, confidentiality, disclosure, and patient access provisions o 1. Common law/equitable obligations to their patients – breach = civilly liable o 2. Regulatory college/body that has the authority to discipline its members for any violation of their record keeping, confidentiality, disclosure, and access obligations o 3. Depending on the nature of the their practice, most professionals are subject to two or more sets of statutory provisions governing these issues B. The Statutory Maze - 2 Ontario statues apply to provincial and municipal government record o The Ontario Freedom of Information and Protection of Privacy Act (FIPPA)  Contains record keeping, confidentiality, disclosure, and a
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