Medico Legal Feature: Medical Records

What are medical records?

“Medical records” is a broad term which incorporates a range of data and information storage mediums containing patient information. Medical records can be either paper based or electronic and include: clinical notes, investigations, specialists’ letters, appointment records, diagnostic reports, accounts and diary systems. It should be noted that information exchanges between a medical practitioner and MDA National or a solicitor seeking legal advice, or in contemplation of litigation, are likely to be privileged and are not considered “medical records”. Accordingly this information should be stored separately from the patient’s medical records in a secure place.

What is the purpose of the medical record?

Medical records are an integral part of good quality patient care. The primary purpose of the medical record is to facilitate patient care and allow you or another practitioner to continue the management of the patient. Good medical records can also significantly improve the defensibility of a claim or complaint, particularly in cases where there are conflicting versions of events between the patient and practitioner.

What are the professional requirements with regard to medical records?

The Medical Board of Australia’s guidelines, Good Medical Practice: A Code of Conduct for Doctors in Australia, state in Section 8.4 that maintaining clear and accurate medical records is essential for the continuing good care of patients.² Good medical practice involves:

• keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management
• ensuring that your medical records are held securely and are not subject to unauthorised access
• ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks
• ensuring that the records are sufficient to facilitate continuity of patient care
• making records at the time of the events, or as soon as possible afterwards
• recognising patients’ right to access information contained in their medical records and facilitating that access
• promptly facilitating the transfer of health information and when requested by the patient.

"…the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth."¹

Why are medical records important medico-legally?

Medical records may be used as evidence in legal proceedings, including medical negligence claims, disciplinary hearings, criminal proceedings or Coronial Inquests. Medical negligence claims may involve a dispute of the facts, which is why comprehensive and accurate medical records are often essential in establishing the facts when defending a claim or complaint. Where there is no supporting documentation, the patient’s recollection may be preferred to that of the practitioner, particularly where the practitioner is unable to fully recall the event or the patient. After receiving a claim or complaint, you may feel tempted to change the medical records or include in the records all of your recollections of the event. This may result in a defensible claim becoming indefensible. Poor medical records may make a claim difficult to defend, but altered medical records may make a claim virtually impossible to defend. Once you are aware of a claim or complaint, no changes of any sort should be made to the medical records.

How long should I keep the medical records?

From a medico-legal perspective, medical records should be kept until there is little or no risk of litigation regarding the patient’s treatment. This will depend on the statutory limitation period within the relevant jurisdiction, and in some jurisdictions this is also impacted by specific legislation governing medical records. Unfortunately it is difficult to be definitive regarding the exact limitation period, as the courts generally have discretion to extend the period in certain circumstances. Where there has been a patient complaint, an adverse outcome or foreshadowed legal proceedings, then the medical records should be kept indefinitely (or advice sought from MDA National prior to disposal). Medical records for a patient with a mental disability should also be kept indefinitely, or until seven years after the patient’s death. The ACT, NSW and VIC have legislated the minimum period of time which medical records should be kept, being:

• for an adult – 7 years from the date of the last entry
• for a child – until the age of 25 years.

MDA National considers these requirements to be appropriate in all Australian contexts.

Who owns the medical records? Can patients look at and/or obtain a copy of their records?

In general terms, medical records made by you remain your property or that of the medical practice or hospital in which you work. However, for records created or in use after 21 December 2001, the Privacy Act 1988 (Cth) generally grants patients the right to access their medical records. Importantly this includes all of the medical records, including specialists’ letters and reports even if they are marked “confidential”. This access should usually involve providing the patient with a photocopy or print-out of their records, if requested. Where the patient is deceased, consent may be provided by the executor or administrator of the patient’s estate. Access by a patient to their medical records cannot be denied unless there are exceptional circumstances such as:

•  serious threat to the life or health of any individual
• unreasonable impact on the privacy of other individuals
• anticipated legal proceedings where legal professional privilege applies.

In all circumstances, a medical practitioner should record when and to whom they have provided a copy of or access to the patient record.

Can I scan records into an electronic form and destroy the paper based records?

Electronic health records are becoming more prevalent in medical practice and medical practitioners are often required to manage the medico-legal and practical issues associated with keeping a mix of paper and electronic patient records. Whilst current legislation does not specify the format in which a patient’s medical records must be kept, in some instances an original paper document may have forensic value in the event that the document is required at trial. Nevertheless, if retention of the original paper documents is not possible for some reason, e.g. due to storage limitations, the original, complete documentation should be promptly scanned and saved into the patient’s electronic health record. The original paper documents should then be destroyed in a secure and confidential manner, once the scanning and back up of the documents has been confirmed. Scanning should be of sufficient quality to allow a complete and legible hard copy to be reproduced from the electronic copy as required. Continued…Medical Records: A Medico-legal Perspective

• 1 Justice Hope. Albrighton v The Royal Prince Alfred Hospital.
• 2 Good Medical Practice: A Code of Conduct for Doctors in Australia. Available at: www.medicalboard.gov.au