1. I am leaving clinic ‘X’ and I will be taking a copy of all my physiotherapy patients’ charts. Is this OK?
No. The physiotherapist should only have access to copies of the records of former patients if the patients have requested that a chart copy be prepared. The client, not the physiotherapist, makes this request.
The only exception would be if the physiotherapist and employer have agreed that the physiotherapist will be the custodian of their patient records. In this case the physiotherapist takes on the responsibility to retain the patient records securely, ensure access to, and appropriately destroy patient records. In this case the physiotherapist would retain the original records, not a copy.
2. Physiotherapist ‘Y’ is/has left the clinic and has taken a printout of all their patients’ contact information so they can send notices thanking the patients for their business and providing information about their new location. Can the physiotherapist do this?
No. Patient contact information (including telephone numbers, email addresses, and mailing addresses) is identified by privacy legislation as private information. When custodians collect patient private information, they are required to do so for an identified purpose and may only use information for the purposes identified. While they may identify contacting patients about upcoming appointments/appointment reminders as one such purpose, it is unlikely that they will have identified notifications of staffing changes as a purpose for data collection. This means that they may not use patient contact information for this purpose.
The custodian also must protect private information from unauthorized access or use. When the physiotherapist is no longer an employee of the custodian, they are no longer an authorized user of information in the custodian’s custody and control. The custodian should employ measures to ensure the physiotherapist does not have access to patient information that they no longer have authority to access. Similarly, physiotherapists should refrain from inappropriately accessing patient information to which they do not have a right to access and from using information for purposes other than those identified at the time of collection.
3. My current/past employer refuses to provide my patients with my new location even when the patient specifically requests the information. Is this OK?
No. Employers cannot refuse to share information about the physiotherapist’s location if they know it, simply to avoid a business loss. Again, patients have a right to choose their health-care providers. At a minimum, the employer needs to advise patients that they can obtain this information from the Physiotherapist Directory on Physiotherapy Alberta’s website.
4. The non-solicit/non-compete clause in my contract states the clinic “owns” the patient and that I cannot inform them of my new location as this is soliciting their business. Is this right?
As already stated, neither the physiotherapist nor the clinic “own” the patient. The patient has the right to choose their provider. Using the sample letter provided helps to provide information about the physiotherapist’s new location in a neutral manner. The letter is specifically worded to avoid favoring either party.
5. My contract includes a non-compete clause that states I cannot work within a 30km radius of my former practice site. Is this OK?
The enforceability and reasonableness of restrictive covenants depends on several factors. Consult your lawyer about the terms of your contract and what they mean for you. In a best-case scenario this should be done prior to signing the contract, not at the time of departure.
6. Who should notify patients that their physiotherapist is leaving the practice? The practice or the physiotherapist?
In the best-case scenario, this is a collaborative process and the physiotherapist and the practice agree about how patients will be notified and the wording of a letter (or script for telephone contact) that explains the change and patient’s options for ongoing care. Such letters should be written in a clear and neutral manner that allows the patient to choose the ongoing treatment option they deem most appropriate. Notifying patients of pending changes is one of the most challenging aspects of leaving a practice, but it helps to remember that employment change is normal and that any impact on the business of either party is likely to be short lived.
7. Who is responsible for keeping the patient records?
It depends on the contract between the physiotherapist and the employer, but it is common for the practice to retain the patient records. This is a sensible option, due to the responsibilities that come with being the custodian, and the fact that patients typically seek their records from a practice location, rather than seeking out their former physiotherapist for their records.