A patient recently sought to have part of his medical chart removed and destroyed. The record in question was an APA or Form 1 created by the responding physician when the patient was admitted to the emergency room of a Toronto hospital.

An APA or Form 1 is An Application for Psychiatric Assessment. It is a necessary step to detaining a person under the Mental Health Act (MHA) for seventy-two (72) hours so they can be observed and examined in a psychiatric facility.

There are certain steps which a physician must take to be enabled to complete a Form 1. In this case, the patient, a prisoner, had been brought to the emergency room by the police after he was believed to have attempted to hang himself in his jail cell. In truth,  his actions had been a staged suicide attempt carried in the hopes of being transferred out of jail due to a fear for his personal safety. Once at the hospital, the patient was assessed by the nursing staff and responding physician and found to be unresponsive. As a result, the physician began completing a Form 1.

However, when the patient awoke he denied all suicidal intention. He now claimed to have been assaulted by the police and was injured. He did not want to leave the hospital. He was discharged and escorted out of the hospital by security. The Form 1 was signed by the physician, but not completed, and was placed in the patient’s medical chart.

Complaint and Review

The patient filed a complaint against the physician with the College of Physicians and Surgeons (CPSO). The Inquiries, Complaints and Reports Committee (ICRC) of the CPSO determined that the physician had acted appropriately. They did conclude, however, that the physician should have completed or destroyed the Form 1 once it was determined to be unnecessary.

The patient sought a review of the decision by the Health Professions Appeal and Review Board (HPARB) which was denied. He then sought a judicial review of the HPARB decision before the Divisional Court of Ontario.

Expunging the Form 1

The decisions below referred to the CPSO policies on modifying a medical record and the provisions of the Personal Health Information Protection Act (PHIPA) of Ontario. They opined that a medical record such as this Form 1 cannot be unconditionally removed but can be separately stored in a lock box. The patient`s medical record would then only refer to the documents existence and indicate where it was stored. This was offered to the patient but refused by him.

Divisional Court Review

The Court noted that the standard of review was reasonableness. This was the same standard of review that had existed for the HPARB. Further, although not under the current judicial review, the underlying decision of the ICRC had to be considered by the Court.

The patient raised three arguments as follows:

  1. That the Form 1 did not comply with s. 15(1)-(3) of the MHA as the physician had not observed or examined the patient before beginning the Form 1;
  2. That the decision not to remove the Form 1 from his medical record is unreasonable as it did not include his name or any other identifying information;
  3. That the PHIPA entitles the patient to require that the Form 1 be expunged from his medial record.

The court found, as follows:

Firstly, there was evidence and observations to support the conclusion below that there was a legitimate concern for the patient’s safety such that the commencement of filling out the form 1 was reasonable.

Secondly, the Form 1 was a medical record and despite not naming the patient it did include observations, examinations, and assessments done while a patient at the hospital.

Thirdly, the PHIPA only entitles a patient to gain access to their medical record, a right to require the correction or amendment of a medical record, and the right to instruct health care professionals not to use or disclose personal health information without consent. It does not however, provide a right to require the disposal of a medical record.

As a result, the Court found the decisions below to be reasonable and dismissed the Application for judicial review.

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