McInerney v. MacDonald, (1992) 126 N.B.R.(2d) 271 (SCC)

• Judge: La Forest, L'Heureux-Dubé, Gonthier, Stevenson and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 11, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1992), 126 N.B.R.(2d) 271 (SCC);126 NBR (2d) 271;[1992] 2 SCR 138;1992 CanLII 57 (SCC);7 CPC (3d) 269;12 CCLT (2d) 225;[1992] SCJ No 57 (QL);[1992] ACS no 57;93 DLR (4th) 415;137 NR 35;317 APR 271

McInerney v. MacDonald (1992), 126 N.B.R.(2d) 271 (SCC);

    126 R.N.-B.(2e) 271; 317 A.P.R. 271

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Elizabeth A. McInerney (appellant) v. Margaret R. MacDonald (respondent)

(21899)

Indexed As: McInerney v. MacDonald

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Gonthier, Stevenson and Iacobucci, JJ.

June 11, 1992.

Summary:

A patient requested her doctor to provide copies of all documents in her medical file, including documents received from five other physicians who previously treated the patient and written opinions as to her health prepared by consultants. The doctor refused to produce copies of the documents originat­ing from the other physicians and consul­tants. The patient applied for an order di­recting production of all documents.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the applica­tion. The court ordered production of all documents comprising her medical record. The doctor appealed.

The New Brunswick Court of Appeal, Rice, J.A., dissenting, in a judgment reported 103 N.B.R.(2d) 423; 259 A.P.R. 423, dis­missed the appeal. The doctor appealed.

The Supreme Court of Canada dismissed the appeal, for reasons different than expressed by the Court of Appeal. The court agreed with the result that all documents were to be disclosed to the patient.

Equity - Topic 3606

Fiduciary or confidential relationships - What constitutes a fiduciary relationship - [See Medicine - Topic 3005 ].

Medicine - Topic 3005

Relation with patient - Nature of - The Supreme Court of Canada agreed with the characterization of a doctor-patient rela­tionship as a fiduciary or trust relationship - The doctor had a duty to act with utmost good faith and loyalty and to hold infor­mation received from or about the patient in confidence - The fiduciary duty to provide access to medical records was grounded in the nature of the patient's interest in his or her records.

Medicine - Topic 3083

Relation with patient - Charts and records - Access to by patient - A patient's medi­cal file included documents prepared by her doctor, documents prepared by five other physicians who previously treated the patient and consultants' written opinions as to the patient's health - All documents were used by her doctor in effecting treat­ment - The Supreme Court of Canada affirmed that the patient was entitled to inspect and copy all of the documents upon request - The patient had a prima facie right to access in equity, there was no evidence that access would be harmful to the patient or a third party and the doctor offered no other compelling reason to justify nondisclosure.

Medicine - Topic 3083

Relation with patient - Charts and records - Access to by patient - The Supreme Court of Canada stated that absent regula­tory legislation a patient was entitled to inspect and copy all information in the patient's medical file which the doctor considered in administering advice or treatment - The doctor's obligation to disclose was based in equity (fiduciary duty), not contract - The doctor owned the physical records, but held the information in a fashion akin to a trust - The doctor had a discretion to deny access, but only on proper principles and non-arbitrarily - The doctor had the onus of justifying non-access (e.g., disclosure harmful to patient or a third party) - The court stated that "[i]n the ordinary case, these records should be disclosed upon request of the patient unless there is a significant likeli­hood of a substantial adverse effect on the physical, mental or emotional health of the patient or harm to a third party".

Cases Noticed:

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244, refd to. [para. 18].

Halls v. Mitchell, [1928] S.C.R. 125, refd to. [para. 18].

Kenny v. Lockwood, [1932] O.R. 141 (C.A.), refd to. [para. 19].

Henderson v. Johnston, [1956] O.R. 789, refd to. [para. 19].

Canson Enterprises Ltd. et al. v. Boughton & Co. et al., [1991] 3 S.C.R. 534; 131 N.R. 321, refd to. [para. 20].

Reibl v. Hughes, [1980] 2 S.C.R. 880; 33 N.R. 361, refd to. [para. 21].

Emmett v. Eastern Dispensary and Casual­ty Hospital (1967), 396 F. 2d 931 (D.C. Cir.), refd to. [para. 21].

Cannell v. Medical and Surgical Clinic (1974), 315 N.E. 2d 278 (Ill. App. Ct.), refd to. [para. 21].

Mitchell and St. Michael's Hospital, Re (1980), 112 D.L.R.(3d) 360 (Ont. H.C.), refd to. [para. 23].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 28].

Strazdins v. Orthopaedic & Arthritic Hos­pital Toronto (1978), 7 C.C.L.T. 117 (Ont. H.C.), refd to. [para. 32].

Authors and Works Noticed:

Beatty, H., The Consumer's Right of Access to Health Care Records (1986), 3:4 Just Cause 3, p. 3 [para. 36].

Canada, Report of the Task Force on Pri­vacy and Computers (1972), p. 14 [para. 18].

Ellis, M.V., Fiduciary Duties in Canada (1988), p. 10-1 [para. 19].

Emson, H.E., The Doctor and the Law: A Practical Guide for the Canadian Physi­cian (2nd Ed. 1989), p. 214 [para. 27].

Hopper, A., The Medical Man's Fiduciary Duty (1973), 7 Law Teacher 73, refd to. [para. 19].

Knoppers, B., Confidentiality and Accessi­bility of Medical Information: A Com­parative Analysis (1982), 12 R.D.U.S. 395, p. 431 [para. 27].

Krever Report - see Ontario, Report of the Commission of Inquiry into the Confi­dentiality of Health Information.

Meagher, A.J., P.J. Marr and R.A. Meagher, Doctors and Hospitals: Legal Duties (1991), pp. 2 [para. 19]; 289 [para. 23].

Miller, R.D., Problems in Hospital Law (4th Ed. 1983), pp. 276, 277 [para. 24].

Ontario, Report of the Commission of Inquiry into the Confidentiality of Health Information (1980), vol. 2, pp. 469 [para. 34]; 487 [para. 35].

Picard, Ellen I., Legal Liability of Doctors and Hospitals in Canada (2nd Ed. 1984), p. 3 [para. 19].

Rozovsky, L.E., and F.A. Rozovsky, The Canadian Law of Patient Records (1984), pp. 73-74 [para. 15].

Westin, A.F., Computers, Health Records and Citizen Rights (1976), p. 27 [para. 16].

Counsel:

Brian A. Crane, Q.C., and Wayne Brynaert, for the appellant;

J. George Byrne and Barry R. Morrison, for the respondent.

Solicitors of Record:

Gowling, Strathy & Henderson, Ottawa, Ontario, for the appellant;

Clark, Drummie & Company, Saint John, N.B., for the respondent.

This appeal was heard on February 5, 1992, before La Forest, L'Heureux-Dubé, Gonthier, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada.

On June 11, 1992, La Forest, J., delivered the following judgment in both official languages for the Supreme Court of Canada.

Stevenson, J., did not participate in the judgment.