This is an interesting question: can a non-dentist own and possess (have custody and control over) a dental record? I’ve previously written about this issue in Oral Health Office articles and next month, Oral Health Office magazine will be publishing yet another one of my articles about the topic entitled “The Waters Are Still Murky: Non-Dental Ownership / Operation of Dental Practices in Ontario“.
Now, during my research into the issue, I came across a recent Alberta case involving a pharmacist and a financial company. Now, I know what you’re thinking: how would an Alberta case about a pharmacist dictate what goes on over here in Ontario with dentists?
Well, there are a lot of similarities in that case (called Maximum Financial Services Inc. v. 1144571 Alberta Ltd.) and an old Ontario case involving a dentist called Axlerod (Re). Now, they didn’t end up the same way, but what’s important is what the judge said in the Alberta case – namely, that some of the statements made in the old Ontario case are still relevant today!
The facts in both the Alberta and Ontario cases are somewhat similar: a regulated health professional borrows money, pledges their patient records as collateral, and then eventually becomes insolvent. When the creditor (non-professional) tries to seize the patient records, a court has to determine whether (1) it’s legally possible for patient records to be pledged by a regulated health professional as part of getting a loan, (2) whether that happened in that specific case based on the wording of the general security agreement and (3) whether the creditor can actually take physical possession (custody and control) of the patient records – even if they appoint a regulated health professional custodian to do it for them.
If you don’t know what happened in Axelrod (Re), read page 35 of an article I wrote about it a few years ago.
So what happened most recently in the Maximum Financial Services Inc. case? Well, unlike in Axelrod (Re), where the Ontario Court of Appeal was OK with the safeguards which the non-professional had suggested to be put in place to transfer patient records from the dentist to its custodian dentist, the Alberta Court of Queen’s Bench wasn’t. It came down to what Maximum (the non-pharmacist financial company) had / hadn’t done leading up the case, as well as their suggested plan of action.
Specifically, Justice B.E. Romaine held that the proposed manner in which Maximum sought to seize the patient records “was not feasible” in light of the Alberta College of Pharmacists’ regulatory regime. First, the Court found that no patients had consented to the transfer. Second, the Court noted that transferring only the original records to Maximum would create confusion and put patients at risk because those records probably changed since the time they were first transferred to Rideau Pharmacy. Finally, Maximum’s request for the Court to impose restrictions on Rideau Pharmacy from contacting patients or making use of patient records would interfere with patients’ rights to choose their pharmacist. For these (and other) reasons, Maximum’s case was dismissed.
Although Maximum lost, importantly, the Alberta Court cited Axelrod (Re) and held that patient records could be pledged as security for a loan so long as the pledge was compatible with the pharmacist’s professional responsibilities. Interesting… so there COULD be an argument there that while patient records cannot be accessed or taken within the custody and control of a non-professional (particularly in light of personal health information protection legislation), those records MAY be capable of being OWNED (i.e. capable of conveying a property interest) by a non-professional. The debate rages on… for more information about this and other issues concerning non-dental ownership and operation of dental practices, you can read my article when it comes out next month!
