The scene
A consultant surgeon called the MDU advice line. She intended to retire in several months. In addition to her NHS practice, she also had a small private practice, and did some medico-legal work. She asked about what to do with her private and medico-legal records after she retired, and specifically for how long these should be retained.
The advice
The MDU medico-legal adviser first confirmed with the surgeon that she was registered with the Office of the Information Commissioner as a Data Controller for the purpose of holding private medical and medico-legal records.
The surgeon was advised that clinical records should be retained for as long as possible, or at least for the minimum periods recommended in national guidance or required by statute. She was told that there was no definitive guidance relating to the retention of private clinical records – the regulations which did cover this (schedule 3 of The Private and Voluntary Health Care (England) Regulations 2001) were no longer in force.
The surgeon was advised that clinical records should be retained for as long as possible, or at least for the minimum periods recommended in national guidance or required by statute.
The GMC advises doctors that in relation to the retention of medical records they should follow the UK health departments' guidance whether or not they work within the NHS. The surgeon was advised that it would be appropriate to follow the Information Governance Alliance's Records Management Code of Practice for Health and Social Care 2016. Different retention periods apply to different types of record.
It was emphasised that the recommended retention periods contained in the guidance were the minimum period for which records should be retained. For patients where the surgeon was aware of an adverse incident or a complaint, it might be appropriate for records to be retained for longer than the minimum period. The MDU regularly receives requests for assistance many years after the event in question, and an absence of records can make it much harder to mount an effective defence against any allegations.
However, the advantages of retaining records from a medico-legal point of view need to be balanced by the requirements of the Data Protection Act 1998 which says you should not retain records for longer than necessary. There are also the practical considerations in relation to the retention of private records that may influence any decision to retain records beyond the minimum retention period.
In relation to medico-legal reports, the NHS Code of Practice advises that records should be retained for 10 years after the case is closed. The surgeon was advised that this could reasonably be taken to mean that the records should be retained for 10 years after the last correspondence from the instructing solicitor. It was suggested that all records – not only the medico-legal report, but also any handwritten or other notes on which that was based – should be retained for this period. In addition, the surgeon was advised to retain records even if she was aware that the legal firm was no longer in existence.
The surgeon was advised that when the time came to dispose of the records, she should ensure that this was carried out using appropriate methods, for example by cross cut shredding, by incineration or by using a commercial company holding the necessary accreditations.
Finally, while the adviser wished the surgeon a long, healthy and happy retirement, she was also made aware of the fact that should any records remain in her possession at the time of her death, the executor of her will might need to seek further advice on how best to store or dispose of these.
This page was correct at publication on 14/03/2017. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.