Retaining records after retirement

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regulations which did cover this (schedule 3 of The Private and Voluntary Health Care (England) Regulations 2001) were no longer in force.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.


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DR Stone

The article is unclear. Solicitors acting for the NHSLA/MDU/MPS specifically request that we destroy all records after closure of the case. Assuming there is no adverse event expected the Data Protection Act implies that I should also destroy clinical records from my private practice prior to my retirement. Please give precise advice. Thank you. Thank you Martin Stone

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Thank you to Dr Stone for this comment. We have also had similar questions from other members. It is entirely understandable to be concerned about when it is safe and appropriate to destroy records, both clinical and medico-legal. In terms of clinical records, the GMC says that doctors should follow the guidance set out by UK health departments for retention of records, even if not working in the NHS*. Records should be retained for a minimum of the period applicable to the type of record as set out in the Governance Alliance’s Records Management Code of Practice for Health and Social Care 2016. For example, the minimum retention period for oncology records is 30 years, or 8 years after the patient has died. For health records not covered by any other section in the retention schedule, the minimum retention period is 8 years from discharge or when the patient was last seen. As mentioned in the article, these are minimum periods and we do see medicolegal cases many years after the patient was last seen. It can be very difficult to provide a defence without records. In terms of medicolegal work, an expert might have copies of clinical records, the originals being held elsewhere. Those copies can be destroyed confidentially once the expert’s role is completed (but we would recommend retaining a schedule of what records you did have when writing your report). The Governance Alliance’s Records Management Code of Practice for Health and Social Care 2016 stipulates that litigation records should be kept for ten years following closure of the case so the final report (and interview notes etc made during the course of preparation) should be retained for ten years. These are your original records, unlikely to be retained anywhere else. We do understand that some members have been advised elsewhere that such documents can or should be destroyed. If you have any concerns about your particular circumstances, please do contact the Advisory department for specific guidance. *GMC “Confidentiality: good practice in handling patient information” (2017) paragraph 130 Note: The MDU replied direct to Dr Stone following the comment and it has been reposted here for the benefit of others.

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