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 to initiate 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 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 the period of limitation (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.
For example, 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 (i.e. from 10 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 s/he had permanent nerve damage as a result of the procedure within three months of the procedure, then prescription will start running three 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 healthcare 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 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 healthcare professional. Further advice on clinical records is available in our risk management modules numbers 20 and 28 on records and computer records respectively. Click here to visit the Prism e-learning library and access these documents (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