Dental records and the law in South Africa

7 March 2014

Last reviewed

Because individual situations will vary, this information is provided for general guidance only. Regardless of any specific legal requirement it is best practice to keep all your dental records for as long as possible. Whilst the law may sometimes define a minimum requirement, it is no crime to exceed it and you may well be very glad that you did.

This document also provides advice on recording discussions about fees.

Q. Is there any legal requirement which determines the length of time that dentists need to keep their patients' clinical records in South Africa?

Whilst there are no legal requirements in the sense of legislation or case law dealing with the period of time that a practitioner needs to keep clinical records, there are ethical guidelines*, published by the Health Professions Council of South Africa (hereinafter referred to as the guidelines), which state that records should be stored for a period of not less than six years as from the date that they become dormant, so far as it is practically and financially possible to do so.

A person normally has three years within which to institute a claim after the relevant incident took place in terms of the Prescription Act (Act 68 of 1969). A person who was a minor on the date of an incident giving rise to a claim has, upon attaining majority (18 years of age), a year within which to institute a claim (section 13 of the Prescription Act). The situation, however, differs if a minor is 16 years or older at the time of an incident giving rise to a claim. In such an event the fact that the patient was a minor at the time of the incident is basically irrelevant and such a patient has the normal period of three years within which to institute a claim. To be on the safe side, it is advisable to keep all records pertaining to minors until such a minor reaches the age of 21.

It should also be borne in mind that prescription runs from the date that the patient has knowledge (or could have acquired such knowledge by the exercise of reasonable care) of the facts upon which his/her claim arises. It is therefore not the date of treatment that is crucial but rather the date on which one has knowledge (or should, by the exercise of reasonable care have had knowledge) that harm was caused by the treatment, eg, if a patient were to discover, 10 months after having undergone a maxillofacial procedure, that s/he has suffered certain permanent nerve damage and that such nerve damage was caused by the procedure in question, prescription would start running from the date when the patient first established that there had been such permanent nerve damage (ie. from ten months after the procedure) and not from the date of the procedure. If, however, it could be shown that the patient could, with the exercise of reasonable care, have determined that he had permanent nerve damage as a result of the procedure within 3 months of the procedure, then prescription will start running 3 months and not 10 months after the procedure.

When dealing with mentally incompetent patients, records should be kept for the duration of the patient's lifetime.

Records relating to an injury on duty should be kept for a period of 20 years after treatment in accordance with the Occupational Health and Safety Act (Act 85 of 1993).

Certain other factors are stated in the guidelines which may require health care professionals to keep their records for longer periods. These include certain health conditions which may take a long time to manifest themselves and records of patients who may have been exposed to such conditions should be kept for longer periods. It is recommended that such records should be kept for not less than 25 years.

Whilst in the overwhelming majority of cases the aforesaid guidelines will allow for records to be stored for more than long enough, it is, nevertheless, important for a practitioner to consider each patient's peculiar circumstances carefully when making a decision to discard his/her records. In particular, should a practitioner believe that it is likely that the patient may institute a claim or submit a complaint against him/her to the Health Professions Council, records should be kept for an extended period of time.

Dental Protection advises that practitioners keep records as long as possible but in any event a minimum of 11 years for adults. The reason for this is that claims can arise many years after the treatment is provided. The presence of records is of great assistance in investigating a claim. The absence of records can create considerable difficulties for the health care professional. Further advice on clinical records is available in the DPL risk management modules numbers 20 and 28 on records and computer records respectively. Click here to visit Dental Protection's E-learning Library and access these documents (DPL members only).

*Medical and Dental Professions Board – Guidelines for Good Practice in the Health Care Professions, Booklet 15 – "Guidelines on the keeping of patient records" Second Edition (29 May 2007), Pretoria

Q. Are there any legal obligations about the storage of dental records?

Whilst there are very few legal obligations in the sense described above, the guidelines provide that records should be stored in a safe place and that, if they are in electronic format, they should be safeguarded by passwords. Records may be kept electronically as long as there are protective measures in place. This would entail that:

1.1 Only CD ROM technology is used, that is, the CD should be designed such that one is only able to record on a CD once so that old information cannot be overwritten, but new information can be added.

1.2 All clinical records stored on computer compact disc and copies thereof are to be encrypted and protected by a password in order to prevent unauthorized persons from having access to such information.

1.3 A copy of the CD-ROM to be used in the practitioner's rooms will be in a read-only format.

1.4 A back up copy of the said compact disc must be kept and be stored in a physically different site in order that the two discs could be compared in the case of any suspicion of tampering.

1.5 An effective safeguard against unauthorized use or retransmission of confidential patient information to be assured before such information is entered on the computer disc. The right of the patient to privacy, security and confidentiality should be protected at all times.

Q. Are there any legal requirements about disposal of either paper or computer-held records?

Once again, there are no legal requirements in the sense of case law or legislation prescribing how records should be destroyed. Furthermore, the guidelines do not prescribe anything in particular in this regard, apart from stating that records kept in a provincial hospital or clinic shall only be destroyed if such destruction is authorized by the Deputy Director General concerned. There are no guidelines regarding the method of destruction. Common sense dictates, however, that patient confidentiality should be protected when destroying records. It would therefore be advisable for practitioners to consider using a paper shredder or a similar device to protect the confidentiality of their patients.

Q. Under what circumstances do dentists have an obligation to disclose their records and if so, who may be authorised to request such disclosure?

The guidelines and the Health Professions Council's ethical rules provide that:

1. A dentist shall provide any person (12 years or older) with a copy or abstract or direct access to his or her own records, should they request it.

2. Where the patient is under the age of 16, the parent or legal guardian may make the application for access to the records, but access should only be given on receipt of written authorisation by the patient in terms of the Access to Information Act (Act 2 of 2000).

3. No dentist shall make information available to a parent or legal guardian regarding a patient who is 12 years or older, but under the age of 16 years, without the written authorisation of that patient.

4. In the case of patients under the age of 12 years, information regarding the patient may only be divulged with the written consent of the patient's parent or guardian.

5. In the case of a deceased patient, information regarding the deceased may only be divulged with the written consent of the next of kin or the executor of the deceased's estate.

6. No dentist shall make information available to any third party without the written authorization of the patient or his or her legal representative.

7. A dentist should make available the records of the patient to a third party without the written authorization of the patient or his legal representative under the following circumstances:

  • Where a Court orders the records to be handed over to a third party.
  • Where the dentist is under a statutory obligation to disclose certain medical facts, eg. reporting a case of suspected child abuse in terms on the Children's Act (Act 38 of 2005).

8. A dentist may make available the records of the patient to a third party without the written authorization of the patient or his legal representative under the following circumstances:

  • Where a patient has instituted an action in Court against a health care practitioner and the practitioner needs access to the records to mount a defense. 
  • Where the third party is a health care practitioner who has had disciplinary proceedings instituted against him/her by the Health Professions Council and the practitioner requires access to the records to defend himself/herself.
  • In the event where the ailment of a patient becomes known to a dentist and the nature thereof is such that the dentist concerned is of the opinion that the information ought to be divulged in the interest of the public at large. Before the information is divulged the relevant information should be given to the patient and voluntary authorization should be sought from the patient.

9. In provincial hospitals the records shall be kept under the care and control of the clinical manager and access to such records shall be subject to compliance with the requirements of the Access to Information Act and such conditions as may be approved by the superintendent.

Q. Does the patient have a right to have a copy of their records and if so what conditions might apply to such a request (eg,speed of response to the request/charge to patient)?

The Promotion of Access to Information Act gives persons the right of access to information that is required for the exercise or protection of any rights prior to court proceedings having been instituted. Access to information will be granted once certain requirements have been met. These include:

  • sufficient particulars to enable the practitioner to identify the requester; 
  • sufficient particularity regarding the record being requested; 
  • the form of the access to the record required (copies or electronic format); 
  • postal address or fax number of the requester; 
  • the manner in which the requester would like to be informed of the decision on the request; 
  • if the request is made on behalf of a person (if attorneys make the request for example) proof of the capacity in which the person is making the request, eg, a power of attorney or consent of the patient; 
  • the requester must state the right that is to be exercised or protected and why the record requested is required for the protection or exercise of such right.

A fee is payable when a record is requested and the prescribed fees are set out in the Regulations to the Act. The Act states that a response to the request must be given within 30 days of the request having been made and that if the request is refused, reasons must be given in this regard. If more time is required to respond to a request, a practitioner may request a further 30 days in which to respond, from the requester. Failure to respond within the stipulated time will be deemed to be a refusal to grant access to the record. The Promotion of Access to Information Act also prescribes certain specific circumstances where a person can refuse to grant a requester access to records requested.

With regard to images for which patients have had to pay, such patients must be allowed to retain such images, unless the practitioner deems it necessary to retain these images for the purpose of monitoring the patient's treatment. Should the patient, however, require suchimages to protect or further an interest (such as consulting with another practitioner), he/she should be allowed to obtain the originals.

Q. Should practitioners obtain written consent from patients regarding their fees or record any discussions regarding fees?

At this stage the legal and/or ethical position regarding financial informed consent is unclear. Until recently, the National Health Reference Pricelist (NHRPL) and the Health Professions Council of South Africa's "ethical tariffs" were applicable. When these tariffs were applicable, a practitioner was required to obtain a non-insured patient's oral consent if s/he charged more than the NHRPL rates. In the case of an insured patient, oral consent had to be obtained if the practitioner charged more than the amount which the patient's medical aid fund would have paid.

A practitioner was required specifically to inform the patient of the applicable NHRPL or medical aid fund tariff/rate, of his/her tariff and of the difference between the two. Vague comments by a practitioner along the lines that he was charging a fee in excess of the NHRPL or medical aid fund tariffs was not considered to be adequate.

Furthermore, the patient's written consent had to be obtained when practitioners charged fees higher than the HPCSA's "ethical tariffs". Practitioners could only charge fees higher than the ethical ceiling when they had valid and justifiable reasons to do so, based on such considerations as experience skill, competencies, level of service and qualifications.

In January 2009, the Council decided that the "ethical tariffs" would be scrapped Whether or not these tariffs have, in fact, been scrapped is uncertain. During the course of 2010, a Court ruled that the NHRPL rates were invalid and null and void, retrospectively. In the circumstances, the current position regarding informed financial consent is unclear, to say the least. It is, however, advisable that practitioners should discuss their fees with their patients in as much detail as possible and, if possible, the patient's written informed consent should be obtained. A practitioner should, at the very least, inform patients of the amounts that s/he charges. Should a practitioner know what portion of his/her fees will be paid by the patient's medical aid fund, he should advise the patient of the percentage that will not be covered. If the practitioner is not aware of how much the patient's medical aid fund would pay, the patient should be informed of the difference between the practitioner's fees and the portion thereof which is usually covered by medical aid funds and/or the patient should be advised to verify the position (where possible) with his/her medical aid fund.

Written financial informed consent that was obtained from a patient forms part of a practitioner's records and should be retained together with all other records relating to the patient. Such documents constitute material and powerful evidence and can be used to refute allegations by patients that they were not adequately informed of the practitioner's tariffs.

Q. How can I ensure my records are of a good standard?

The guidelines contain a checklist for medical record keeping which are quite useful:

  • Records should be consistent.
  • Records should be complete, but concise (diagrams are useful).
  • Avoid self-serving or disapproving comments in patient records.
  • Use a standardised format: Notes should contain, in order, the history, physical findings, investigations, diagnosis, treatment and outcome. 
  • Avoid conclusionary comments, describe the facts and make conclusions only essential for patient care. 
  • If the record needs alteration in the interest of patient care, do not simply delete a note as this will indicate an intention to hide. Rather put a line through the item which requires amendment (so that the writing is still legible underneath the line). Such an amendment should be dated and signed in full. The reason for the amendment should also be noted.
  • Release a copy of the records only after receiving the proper authorisation.
  • Keep billing records separate to patient care records.
  • Always label attached documents such as diagrams, lab results, photographs, charts, X-rays. Never rely on sheets of paper to remain identifiable by being bound or stapled together.

The following are not provided for in the guidelines but are important from a medico legal perspective:

  • Do not rewrite your notes. Only notes written contemporaneously have any value in Court. A practitioner may, however, make further notes at a later stage. These notes should be correctly dated and signed. The reason for recording the note should also be stated.
  • Where you are proposing treatment with inherent complications, record that the patient proposed has been advised of the material risks and complications of the treatment in question. If possible, ask your patient to sign confirmation that s/he has been warned of the material risks and complications of the treatment to which s/he has agreed. Such discussions regarding the material risks and complications of such procedure should take place well in advance of the date of the proposed treatment, so that the patient has time to digest and consider the information conveyed.
  • Practitioners should note any discussions with patients regarding fees or fee estimates.

Dental Protection Limited (registered in England No. 2374160) is a wholly owned subsidiary of The Medical Protection Society Limited (MPS) which is registered in England (No.36142). Both companies have their registered office at 33 Cavendish Square, London W1G 0PS.

 

Dental Protection Limited serves and supports the dental members of MPS, with access to the full range of benefits of membership which are all discretionary and set out in MPS’s Memorandum and Articles of Association. MPS is not an insurance company.

 

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