Record-keeping advice from Balens Insurance

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The following guest post has been written by David Balen, MD of Balens Insurance.
Record keeping – how long should you keep your notes? If you work in a clinic – who owns the notes? What happens if you leave a clinic or stop your practice? What about Data Protection legislation?
The reality is that there may be overlaps or contradictions according to the different types of law. Data Protection legislation, Contract Law, the Criminal law and Human Rights legislation are there to protect the public and prevent abuse.
However they can cause confusion, especially with regard to what you should do as part of your contract with your insurance company in complying with policy terms and conditions. Getting it right is crucial in the event of a claim or court action against you.
The Data Protection Act says you should keep records for no longer than necessary (although they don’t define how long that is!). The core purpose of the Act was to stop people abusing data held and using it for unethical purposes. On the other hand, you have a human right (protected by law), to maintain your livelihood.
It is a condition of your policy (Contract Law) that records be kept for at least 7 years. Statutes of limitation (Under Civil Law or Tort) extend the possibility of an action against you beyond the time limits of the data protection act and your policy conditions – so which one should you obey?
We recommend that you keep patient records indefinitely, particularly those for minors. This applies even when you have referred the patient on, or you have left the practice where you administered the treatment. Although in most cases the statute of limitation that applies for late discovered situations leading to an allegation of negligence is 3 or 6 years from the date that the patient discovers a problem, there are certain situations where the limitation period could be much longer.
In the case of minors, this is 3 or 6 years (according to the type of claim) from the date that they turn 18. In the case of people with learning difficulties and in certain other situations, there is no statute of limitation and the Courts can overturn limitation periods, so you can see the reason for my advice here – it is complicated – and are you going to remember when to dispose of the notes safely?
Your patient’s case notes and records are your property, and you must retain them even if you move to another practice. If, as a clinical supervisor, you oversee a student’s work under your professional practitioner insurance, the patient’s records are yours. Although a patient can, by written application, seek access to notes, they have no legal rights of ownership. However, if a patient requests a copy of their notes, (which is allowed under the law) you must follow the procedure laid out in the Data Protection Act 1998 and keep a record of this on the file.
As your Insurance policy may need to defend an allegation against you in the future it is important that you know where they are at any time.
Think ahead! You may want to appoint someone in your Will or any Power of Attorney arrangement you may have set up to be able to have access to the records if you are too ill, disabled or incapable of accessing them. Your Will should include such information so that if your Estate was challenged after your death, the policy would be called upon to defend it and would be able to do so.
On selling or otherwise transferring your practice, you may pass on the original records if (a) the new owner will be subject to the same or similar rules to those referring to Case Notes above and (b) the patient is informed in writing in advance of the transfer and given the opportunity to object, in which event you must retain the original records.
You must also ensure that patients are kept fully informed and offered appropriate choices about their continuing care and the safe keeping and location of their original records. As it will be your policy that will defend you for previous work performed (as long as run off cover is in place), you must ensure that the notes can be easily accessed or that you have copies, in order to fulfil the terms of the policy and in any event, to allow yourself to be defended whether by the insurers – or anyone else.
Note from Private Practice Hub: do you have any queries? Let us know below and we will ask Balens Insurance for their advice.
If you want to find out more about the Balens insurance policy for therapists you can do so here.