IN ALMOST every instance, dietitians in solo private practice would be the health information custodians (HIC) responsible for the privacy, confidentiality and appropriate retention of client health records. As such, they must have plans in place in the event of a change in practice due to their sudden incapacity, death, bankruptcy or retirement.
Dietitians are encouraged to have a business plan and/or identify who the custodian of records of personal health information is in a planned or unforeseen change in practice. As changes can occur unexpectedly, having a system in place to securely retain client health records is a requirement noted in the Professional Practice Standards for Record Keeping (Standard 5).
Dietitians are also urged to be proactive and have systems and formal arrangements to retain records, especially when entering into practice agreements with other health information custodians. A formal agreement can clarify who will be responsible for the client’s health records in any practice change. The custodian or designated individual will be accountable for their client’s health records and how they should be managed.
The Personal Health Information Protection Act, 2004 (PHIPA) requires custodians to protect personal health information and ensure that records of personal health information are retained, transferred and disposed of securely. Therefore, a custodian remains responsible for records of personal health information, even where the records are being retained by an agent of the custodian, such as a record storage company.
Who should be designated?
Upon the death of a custodian, the estate trustee or the person who assumed responsibility for the administration of the estate becomes the custodian until custody and control pass to another person who is legally authorized to hold the records. Suppose another person — for example, a trustee in bankruptcy — obtains complete custody or control of the records due to the bankruptcy or insolvency of the custodian. In that case, that person becomes the custodian. The person designated for managing the records does not necessarily need to be a dietitian. They can be a spouse, another family member, friend, or colleague.
Although the designated person will have the legal responsibility to manage the records according to Ontario laws and College guidelines, it is essential to make sure that they understand that they are prepared to assume their duties as the new HIC. The original custodian must make reasonable efforts to notify the individual to whom the personal health information relates before the transfer to the successor, or, if that is not reasonably possible, as soon as possible after transferring the records. When complete custody or control of the records is transferred to a successor, the successor becomes the custodian.
Instructions
While record retention obligations may be apparent to the dietitian, they may not be for the designated HIC. The business plan or will should clearly explain that the records must be kept private, confidential, secure and retained for the appropriate retention period. Most importantly, the records must be accessible should clients wish to access them or if the College or police need access during an investigation.
The instructions should direct the designated HIC to:
- Notify the College via email of the dietitian’s incapacity or death.
- Contact each client to inform them of the dietitian’s situation, incapacity or death. Specify the retention period and where the records will be kept if clients need to access this information. (See example below of a form letter to clients.)
- Provide resources to help clients find follow-up dietetic services (e.g., direct clients to College, the “Find a Dietitian” section of the Dietitians of Canada website, Telehealth, etc.).
All of the above information can be outlined in a form letter (see example below) provided to the designated HIC, which would then be sent to clients.
Alternatively, a telephone script may be developed that the designated HIC may call each client to inform them of the appropriate information.
For more information on the professional responsibilities for dietitians acting as a Health Information Custodian, refer to the following resources:
- College of Dietitians of Ontario articles: Are you a Health Information Custodian part I and part II.
- Personal Health Information Protection Act. (2004):http://www.e-laws.gov.on.ca/html/s features/nglish/elaws_statutes_04p03_e.htm#BK4
- Information and Privacy Commissioner of Ontario: Avoiding Abandoned Health Records: Guidance for Health Information Custodians Changing Practice
Registered Dietitians are also welcome to contact the College with questions.
Form Letter Example
