This is the third in a series of articles exploring record-keeping by Dr Volker Hitzeroth, medico-legal consultant, and Dr Yash Naidoo, dento-legal consultant at the Medical Protection Society.
Hitzeroth and Naidoo write:
In our previous article on who owns the rights to a patient’s health records, we looked at healthcare practitioners’ responsibilities in keeping and destroying records. In this article we will explore another side of this: dealing with records when you retire.
This is the part that catches people out at the very end of a career, when they are least expecting it and least equipped to deal with it. Closing your practice may end your practice. It does not end your liability.
The file outlives the career
When you retire, you stop treating patients. You do not stop being answerable for the patients you treated. A complaint or a claim can surface years after the clinical contact, and when it does, the only reliable account of what happened is the record you made at the time.
Records matter to your patients for just as long. They may need them for ongoing treatment, for an insurance application, or to understand the care they received from you years earlier.
So, records are not loose ends to be tidied up on your way out. They are the last line of your professional defence, and you need to be able to reach them long after the practice that generated them has closed.
What the guidance actually requires when you close
The HPCSA (Booklet 9) sets out what a practitioner must do when leaving private practice. If you close for any reason, you must inform all your patients in writing of:
• The date the practice closes;
• Their option to be transferred to a practitioner of their choice; and
• Records will be held for at least 12 months by an identified practitioner or institution, who will have authority to deal with the files, subject to the usual rules on confidentiality and record-keeping.
Two practical points about that letter: first, send it well before you close. Three months is a good working minimum. Patients need time to decide where they want to go, and a notice that arrives after the doors have shut is of limited use to anyone.
Second, tell patients they are welcome to collect copies of their records themselves. It saves a great deal of administration and is a courteous way to end a clinical relationship. One caution though: what you give them is a copy of their information, not a transfer of your duty to preserve the record.
The 12-month trap
Twelve months is not a disposal date. It is the minimum period for which someone must be formally responsible for holding the files after closure. It has nothing to do with how long the records must be kept. Retention periods are unchanged by your retirement. Adult records run for at least six years from the date the file became dormant.
For minors, the HPCSA recommends keeping records until at least the patient’s 21st birthday, and as we noted in the previous article in this series, the safest course is to keep the file comfortably beyond any period you think might apply.
Records falling under other statutes have their own, longer, periods.
If a record is relevant to a complaint, a claim or an investigation that is already under way, it must be preserved, whatever the ordinary retention period says. Destroying a file that somebody has already asked about is a very difficult thing to explain afterwards.
Gap in the guidance: handing over to successors
Booklet 9 deals with closing a practice, and with what happens when a practitioner dies. It does not specifically deal with permanently leaving practice while handing over the practice to someone else. That is the common case, and it falls into a gap.
You are still expected to tell your patients, in writing, that you are leaving and that ownership is changing. You still need to give them the choice of staying with the incoming practitioner or moving copies of their records to someone else. Reasonable and documented efforts should be made to reach patients rather than simply assuming their silence is consent.
Where patients stay, the records go across with the practice. But do check that they have actually gone across, because this is where practices increasingly come unstuck. A patient list and a set of files are not items of equipment to be handed over with the keys.
With an electronic system in particular, the incoming practitioner needs to be able to open the clinical notes, the radiographs, the photographs, the pathology reports, and the scanned attachments. Inheriting a computer is not the same thing as inheriting the records, and neither is inheriting a software subscription that lapses three months later.
Your problem is access, not possession
It is tempting to conclude that a retiring practitioner should photocopy everything and keep a set. For a practice of any size, that is usually bad advice: a 30-year practice is thousands of files deep and duplicating them creates a second store of sensitive health information that still needs a purpose, security, retention periods and eventual disposal.
The records will continue to exist but the successor practitioner, or the custodian identified in your closure letter, is the mechanism for that. What you need is a guaranteed route back to a file if you are ever asked to account for yourself.
So, make that route explicit, in writing, as part of the handover. Keeping copies then becomes the exception rather than the rule, worth doing where you already know of a live dispute or have real doubts about whether the records will still be retrievable in a few years' time.
Get it in writing, however well you know each other
Ensuring the handover and access arrangements are in writing is critical. Practice handovers are very often done on a handshake, and difficulty can arise when parties have differing expectations that have not been ironed out. A written agreement makes those expectations explicit.
It should deal with:
• Who owns and holds the records and where they are kept;
• How they will be stored, protected and retained, and for how long;
• How you, or someone acting for you, can obtain a record when you need it, subject to the usual confidentiality requirements;
• Who handles requests, and who bears any retrieval costs; and
• What happens if the custodian later sells or closes the practice, becomes incapacitated or dies.
No agreement can promise that a file will never be lost and it cannot bind a purchaser who buys the practice from your successor years from now. What it can do is require that you are told before the records move, and that custody and access arrangements continue.
Those are small things to settle while everyone is still co-operating, and very hard to settle once they are not.
Do not leave your patients stranded
There is a second duty here that has nothing to do with filing, and it is easy to overlook in the busyness of winding down.
Selling the practice does not, on its own, establish that every patient has been handed over. What matters is that a suitable practitioner has actually accepted responsibility for continuing care, that the patient understands the arrangement, and that the incoming practitioner has the records, the outstanding results and the follow-up plan in front of them.
A retirement therefore needs to be planned around your patients rather than only around your calendar. A course of treatment or a recovery plan may need months of preparation. Others will need a review or a repeat prescription before you go.
These things deserve as much thought as the lease and the equipment. And where a patient chooses to go elsewhere, help them do it, and tell them anything about timing that matters clinically.
When a practitioner dies
In this instance, records form part of the deceased practitioner’s estate and the executor administers them. If the practice is taken over by another practitioner, the executor transfers the records across, and the incoming practitioner must take reasonable steps to tell patients that ownership has changed and outlines their options as above.
If nobody takes the practice over, the executor must transfer records to other practitioners as individual patients request.
Whatever remains is held in safekeeping by the executor for at least 12 months, and that period is no more a disposal date here than it is anywhere else.
Partnership agreements sometimes make their own provision for a deceased partner’s share, and that will usually extend to the patient records. Your executor will not know any of this so it is worth explaining your agreement to them.
In the event a claim is brought against a practitioner’s estate, their executor or personal representatives can approach Medical Protection to request assistance.
The bottom line
The end of a career deserves to be a clean one. The records are the last thing standing between a long and successful professional life and an unhappy postscript to it, and getting this right is what allows you to ride off into the sunset without looking over your shoulder.
Members can contact Medical Protection for advice and support on handing over records, or any other aspect of records management.
See more from MedicalBrief archives:
Confidentiality key to securing patients’ trust
Medical practitioners' duties to safeguard patients’ information in terms of POPI
What to do when an HPCSA investigator knocks on your door