Compulsory retention of clinical records Quarter 1 2022

By HANNEKE VERWEY, Published in Medical Law/POPIA

Whilst it is common knowledge that healthcare practitioners have a duty to keep health records and to retain these for a period of time, there is often some doubt regarding the exact retention periods prescribed in law. There is also some uncertainty amongst some practitioners regarding the implications of the Protection of Personal Information Act (4 of 2013), and whether the Act has amended the position under the Health Professions Council of South Africa's Guidelines on the Keeping of Patient Records (Booklet 9, 2016).

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According to the Health Professions Council of South Africa's Guidelines on the Keeping of Patient Records (Booklet 9), "health records" refer to any relevant records made by a healthcare practitioner at the time of or subsequent to a consultation and/or examination or the application of health management. Health records include, but are not necessarily limited to the following:

  • Hand-written contemporaneous notes taken by the healthcare practitioner.
  • Notes taken by previous practitioners attending to healthcare or other healthcare practitioners, including a typed patient discharge summary or summaries.
  • Referral letters to and from other healthcare practitioners.
  • Laboratory reports and other laboratory evidence such as histology sections, cytology slides and printouts from automated analysers, X-ray films and reports, ECG races, etc.
  • Audio-visual records such as photographs, videos and tape-recordings.
  • Clinical research forms and clinical trial data.
  • Other forms completed during the health interaction such as insurance forms, disability assessments and documentation of injury on duty.
  • Death certificates and autopsy reports.

The Guidelines provide that health records should be stored for no less than six years from the date that they became dormant, that is, generally the date of last contact with the patient. The Guidelines provide for a number of exceptions where practitioners should keep the records for a longer period. These include :

  • In the case of minors, health records should be kept until the minor's 21st birthday. This would apply equally for obstetric records.
  • For mentally incompetent patients the records should be kept for the duration of the patient's lifetime.
  • In terms of the Occupational Health and Safety Act (85 of 1993) health records must be kept for 20 years after treatment.

The Protection of Personal Information Act confirms that records of personal information, which would include health records, must not be retained any longer than is necessary for achieving the purpose for which the information was collected or subsequently processed, unless:

  • retention of the record is required or authorised by law. An example would be the Council's Ethical Guidelines, which require that clinical records be kept at least six years from the date they became dormant.
  • the healthcare practitioner reasonably requires the record for lawful purposes related to his or her functions or activities.
  • retention of the record is required by a contract between the parties thereto.
  • the patient or a competent person where the patient is a child has consented to the retention of the records.

Once the prescribed period has passed, healthcare practitioners may destroy any dormant clinical records. Healthcare practitioners may nevertheless choose to retain records for a longer period. Although there are no clear rules in this regard, there may be several factors that require health records to be kept for longer periods. For instance, certain health conditions take a long period to manifest themselves, (e.g. asbestosis), and records of patients who may have been exposed to such conditions, should be kept for a sufficient period of time. Practitioners may also choose to hold on to records longer if the patient suffered an adverse event, and there are risks resulting from the handling or complications of the case. In these circumstances, healthcare practitioners should, however, satisfy themselves that the extended retention of the health record is indeed reasonably required for lawful purposes related to their professional functions or activities. Whilst the main function of clinical records is to facilitate continuity of care, there are many legitimate secondary uses as well. Records should, however, not simply be stored indefinitely without good reason.

The Ethical Guidelines provide that healthcare practitioners may also choose to retain healthcare records for longer periods based on the value of the record for academic or research purposes. These Guidelines should be read with s14(2) of the Protection of Personal Information Act, which confirms that records of personal information may be retained for longer periods for historical, statistical or research purposes, provided that appropriate safeguards against the records being used for any other purposes have been established.

In terms of the Protection of Personal Information Act, a responsible party must destroy or delete a record of personal information or deidentify it as soon as reasonably practicable after the responsible party is no longer authorised to retain the record. The destruction or deletion of a record of personal information must be done in a manner that prevents its reconstruction in an intelligible form. Although not a legal requirement, it is advisable to keep a record of all healthcare records that have been destroyed. The record should include, at minimum, the patient's name, date of birth, the start and end dates of the practitioner's clinical involvement, the date of destruction of the records and, if applicable, the name of the destruction company.

The provisions of the Protection of Personal Information Act are thus entirely reconcilable with, and have not amended the position as set out in the Health Professions Council of South Africa's Guidelines insofar as it concerns the required period for the retention of health records. Healthcare practitioners and their staff should be encouraged to familiarise themselves with the relevant regulatory framework to ensure continued compliance.

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Verwey is a Senior Associate with MacRobert.