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How to Prepare Patient Records for a Court Order in Your Healthcare Practice

Posted on April 7, 2021 by Jean Eaton in Blog

How to Prepare Patient Records for a Court Order in Your Healthcare Practice

You are working at the reception desk of a healthcare practice. Suddenly, there is a police officer giving you a court order! Do you know how to prepare patient records for a court order?

Don't panic when preparing patient records for a court order

Don’t Panic!

In this month’s Q&A with Jean, we discussed how to prepare patient records for a court order with confidence!

Now, just a reminder, I’m not a lawyer and I don’t play one on TV. These are my recommendations based on my experiences – as a director of health records in hospitals in Canada, as a court reporter, and as a mentor to clinic managers in independent healthcare practices – and this is not legal advice.

Follow These Steps

In this article, I am not discussing a situation which relates to a life-threatening situation that requires an immediate response. I am also not discussing when the order relates to the type or quality of healthcare provided to the patient or when the actions of the healthcare provider or clinic is being challenged or reviewed. These are topics for a different article.

Your reception staff should not accept the court order but, instead, immediately ask the officer to wait for a few minutes so that they can request their supervisor or privacy officer meet with them.

When the court order is an administrative request for information, the supervisor or privacy officer will accept the court order from the officer. Before the officer leaves, make sure that you read the court order carefully and ensure:

  • Who is named in the court order.
    • This is often the clinic manager of the clinic. Your clinic should be specifically named or, perhaps, the name of your lead physician or healthcare provider.
  • Record the date and time that you received the order.
  • Clarify when the response is required.
  • Name and contact information.
    • This could be of the officer that delivered the court order (if possible).
    • At minimum, it should include the contact information of the court, for example, the court clerk’s office or the witness co-ordinator, or the sheriff’s office.
  • The province or jurisdiction of the court.
  • In general, this should be the same province where your clinic operates. If not, contact your lawyer for advice on how to respond.

Review Your Policies and Procedures

This is not a routine request from a patient to access their health records or a request to disclose their records to a third party like a lawyer or insurance company. In those routine requests, patients are generally required to provide a written, signed consent before you can disclose their records.

When you receive a court order or subpoena to produce patient records at a court or other legal proceeding, you are not required to get a signed consent from the patient.

Each healthcare practice should have detailed policies and procedures on how to prepare patient records for a court order. Review these now.

If you don’t have up-to-date policies and procedures, see the Practice Management Success Tip, How to Prepare Patient Records for a Court Order.

Validate the Court Order

Read the court order carefully. In particular,

  • Phone the contact number on the court order.
  • Confirm the date, time, and location that you are required to appear.

Locate the Patient Record

Find the patient information maintained in an electronic database, electronic medical record (EMR) and/or paper records. Remember to look for both active and inactive patient records as needed by the court order.

Read the patient record carefully, line by line, to ensure that the record is complete. For example, make sure that all lab reports, prescriptions, consultation notes, etc. are included in the record.

Secure the record to prevent snooping or modification to the record. Also ensure that the record is available for continuing care and treatment of the patient, if needed.

In an electronic record, prepare an audit log of all the transactions on that patients’ chart.

Ensure there is no duplicate or second chart for the patient that may have been created in error. Search by alternate names, spellings, date of birth, etc.

Ensure that each custodian included in the patients’ care and your healthcare practice’s privacy officer is informed of the court order to produce the record. The custodian should be provided an opportunity to review their clinic notes. Remind the custodian that they cannot further disclose the patient's record.

Prepare the Patient Record

Review the court order and identify exactly what information is requested. It might be for specific dates or a condition or treatment.

Keep complete and detailed notes about how you prepared your response to the court order. You will bring your notes with you to court to assist you in your testimony about how your clinic creates and maintains patient records and what you did to respond to the court order. After your court appearance, you will maintain your notes as part of the business records for the clinic.

Collect the information and record each of your steps and your results, including the records that you searched for as well as those that you did not find any results for.

If you maintain your patient records in an electronic medical record (EMR) or digital practice management software, print out a hard copy of all the information that responds to the information that is requested.

Sever (also known as redact or black-line) any information that is not appropriate to include in the disclosure. Cross-reference each redacted entry to the legal authority not to include the information in the disclosure.

Redact patient record when preparing for a court order

If you are using an EMR, organize the paper print-out in a format that makes sense. This might be in chronological date order, or by grouping like records (clinic notes, lab results, etc.) together.

Create a ‘Table of Contents’ of the information in the patient record. This will help you in your testimony to quickly find requested information, and to help the court to locate information in the records that you have prepared.

At the same time, handwrite in ink at the bottom of each page the sequential page number in the package. Update the table of contents with the page numbers.

Stamp ‘COPY’ on each page.

When the package is complete, make a photocopy (or two) of the entire package. The ‘original’ paper copy will be maintained at the clinic. Bring the original and the copy to court and ask the court to accept your copy. Return the original package to the clinic and securely maintain this as part of the business records of the clinic until the court file is complete.

When You Attend At Court

As the clinic manager, your role at the court is to tell the court how patient information is collected and maintained in your healthcare practice. Your job is not to interpret the content of the clinic notes.

A few days prior to the court date indicated on the court order, phone the clerk’s office or witness support office to confirm the date, time, and location of the proceedings and if you are still required to attend.

provide testimony at court

On the day of the proceedings, report to the clerk of the court.

Bring with you the court order, your photo ID, the patient record, and your notes. Bring a good book to read in case you have a long wait.

You will be advised (again) if you are required that day. If you are not required, the clerk will make a notation on your court order to appear that you attended and that you have been dismissed. Keep this in your business records with the patient record.

If your testimony and the patient records are required, you will be called as a witness during the court proceeding.

You will be asked to swear or affirm an oath to speak honestly during your testimony.

Typical questions that you should be prepared to answer include:

  • Your name.
  • Your role at the clinic, how long you have been in that role, your routine tasks and responsibilities at the clinic.
  • Describe how patient records are maintained. Be prepared to explain your EMR or computer patient management system (if you have one).
  • Bring your notes about the steps that took to prepare for the court order. You may ask permission of the court to refer to your notes that you created when preparing to respond to the court order during your testimony, if necessary.
  • Explain that the patient records are kept electronically and that you have prepared a paper print-out of those notes.
  • Be prepared to explain how you know that the records are complete, not missing any details, etc.
  • If the court asks you to enter the records into evidence, explain that you have an ‘original’ and a ‘copy’ and ask the court to accept the ‘copy’ into evidence.

When You Return to the Clinic

Complete your notes by documenting your day at the court. Write a short summary of your day including:

  • Did you give a copy of the patient records to the court? To whom?
  • Remember to add this notation to the patients’ record that you disclosed this information according to the court order.
  • Any follow-up required for this disclosure?
  • Review your procedures. Anything that you would edit or provide additional instructions that will help you to be better prepared for next time you receive a court order?
  • Submit a copy of your out of pocket expenses (parking receipts, meals, etc.) for re-imbursement by your employer, if applicable.

What You Should Do Now

  1. Review your policies and procedures now to ensure that it includes how to respond to a court order.
  2. Train your reception staff on what to do if they receive a court order.
  3. Train your privacy officer and clinic manager on how to prepare a patient record for a court order.

Depending on where you work, you may receive a court order regularly or it might be a once-in-a-career experience. When you have policies and procedures and a little bit of training to assist you, you can respond to a court order calmly and confidently.

If you are a member of Practice Management Success, login and access the ’Procedure:  Preparing Patient Records for a Court Order’ template and the replay of the tutorial video.

Download Practice Management Success Tip - Preparing Patient Records for a Court Order Now!

When we know better, we can do better…

Jean Eaton is constructively obsessive about privacy, confidentiality, and security especially when it comes to the handling of personal health information. If you would like to discuss how I can help your practice, just send me an email. I am here to help you.

Jean L. Eaton
Your Practical Privacy Coach
INFORMATION MANAGERS

court order patient records, health care, health records, healthcare, medical, Practice Management Success, subpoena to produce patient records, template procedure

Disclosure to a third party

Posted on July 30, 2014 by Jean Eaton in Blog

Patient Access to Health Records

Healthcare providers have a duty to assist the patient when the patient wants to access their own information or request that it be disclosed.

Can a patient authorize disclosure to third party?

Common requests for patient records include patients authorizing their own information to be sent to a third party. The third party – insurance agent, employer, government agency, etc – sometimes acts on behalf of the patient to request the patient’s records from their healthcare provider. The third party will often use their own forms. When the healthcare provider receives the request, they may have questions about the request.

If the custodian / physician has any questions or concerns about the request, they can (and should) get clarification before releasing the information.  You could:

a)  request the third party to provide clarification or provide a revised consent authorized by the patient or

b)  refuse the request and state the grounds (reminder – you need to state the legal authority not to process the request) or

c)  healthcare provider contact the patient directly to discuss the request to release records.  This is my personal favourite option. This meets the obligation of duty to assist, provides clarity for both the patient and the custodian about what information is (and is not) included in the response to the 3rd party.  You can have the patient book an appointment with the custodian to review the request and then update or provide a new consent to release.

Valid consent criteria

Valid consent criteria includes:

  1. Identify the individual (patient)
  2. Who has been authorized to disclose
  3. To whom
  4. Explicitly what information
  5. For what purpose
  6. Legal authority
  7. Patient acknowledgment
  8. Date, sign, valid until

‘Valid Until’

‘Valid Until’ is not a requirement under Health Information Act, however it is good practice.

The length of time ‘valid until’ is often discretionary to the custodian – often 30-90 days or whatever is reasonable to:

a) ensure that the patient authorizing the release can provide informed consent and

b) reasonable length of time to process the request (standard is 30 days turn-around to respond to a request)

A patient has the right to know how their health information is being collected, used, and disclosed. A patient has the right to access their own health information. A healthcare practice that demonstrates attention to detail, courtesy to the patient, and respect for confidentiality will also have good business practices and excellent customer service.

As a practice manager, clinic manager, healthcare provider or employee, it is your job to make sure that you know how to respond to access request, process the request, and provide good customer service. See our new series of articles, one article each week starting July 14, on the key steps in ‘Patient Access to Health Records.’

Additional resources:

Alberta Health and Wellness. HIA Guidelines and Practices Manual.

“Best of the Practice Management Nugget interviews’ will be posted next Thursday and will include the replay – and resources – for ‘Patient Access to their records’.  See informationmanagers.ca/pmn-events-live

 

Your comments and discussion are encouraged – join our new LinkedIn group, Practice Management Nuggets. When you are signed into LinkedIn, simply go to ‘interests’, ‘groups’, search for ‘Practice Management Nuggets’ and request to join.

Health Information Act, health records, patient access, patient rights, Practice Management Mentor, third party requestors, valid consent

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