Retention and Destruction of Medical Records

Often patients may not present on a frequent basis or the medical practitioner may no longer recall the relevant consultation that is the subject of a claim or complaint. When a complaint is made about a patient’s care to a complaints body, the production of medical records may also be required. For this reason, it is important to be aware of the legal requirements for the retention and destruction of medical records.

How long should I retain medical records?

From a medico-legal perspective, medical records should be kept until such time as there is little or no risk of a claim arising from the patient’s treatment. This will depend upon the statutory limitation period (the time limits within which a claim must be commenced, within the relevant jurisdiction) and any applicable state or territory legislation governing the retention of medical records.

Unfortunately, it is difficult to be definitive about the applicable limitation period, as courts generally have discretion to extend it in certain circumstances. Accordingly, where there has been a patient complaint or an adverse outcome, or legal proceedings have been foreshadowed, the medical records should be kept indefinitely. Medical records for a patient who is subject to a Guardianship or other court or tribunal order should also be kept indefinitely, or until seven years after the patient’s death.

In the ACT, NSW and VIC, there is legislation outlining the minimum period of time which medical records should be kept:

• for an adult – seven years from the date of the last health service
• for a child – until the age of 25 years.

In the ACT and VIC, medical records must be retained for the above period even if the patient is deceased. MDA National considers these statutory minimum requirements to be appropriate in all Australian contexts.

Throughout the period that medical records are retained, reasonable security measures and safeguards must be in place to ensure that patient confidentiality is maintained and records are not lost, stolen, damaged, or subject to unauthorised access or misuse.

How should I dispose of medical records?

Medical records must be disposed of in a manner that preserves patient confidentiality. This involves taking reasonable steps to destroy or permanently de-identify patients’ personal health information.

In the ACT, NSW and VIC, there is a legal obligation when disposing of medical records, to keep a register identifying the:

• name of the individual to whom the health information is related
• period of time over which the health record extends
• date on which the record was deleted or disposed.

If a commercial company is used to dispose of the records, the company should provide certification to confirm confidential destruction. A copy of this certificate should be retained.

You can find further information in relation to all aspects of medical record keeping in our Medical Records brochure available at mdanational.com.au. You can also contact MDA National’s Medico-legal Advisory Service on 1800 011 255 or email advice@mdanational.com.au.

Dannielle Stokeld, Medico-legal Adviser (Solicitor)
MDA National