HPCSA Guidelines on record-keeping, Booklet 9 2016:
9.Duration for the retention of health records
9.1 Health records should be stored in a safe place and if they are in electronic format, safeguarded by passwords. Practitioners should satisfy themselves that they understand the HPCSA’s guidelines with regard to the retention of patient records on computer compact discs.
9.2 Health records should be stored for a period of not less than six (6) years as from the date they became dormant.
9.3 In the case of minors and those patients who are mentally incompetent, health care practitioners should keep the records for a longer period:
9.3.1 For minors under the age of 18 years health records should be kept until the minor’s 21ST birthday because legally minors have up to three years after they reach the age of 18 years to bring a claim. This would apply equally for obstetric records.
9.3.2 For mentally incompetent patients the records should be kept for the duration of the patient’s lifetime..
9.4 In terms of the Occupational Health and Safety Act (Act No. 85 of 1993) health records must be kept for a period of 20 years after treatment.
9.5 Notwithstanding the provisions in paras 9.3 and 9.4 above, the health records kept in a provincial hospital or clinic shall only be destroyed if such destruction is authorised by the Deputy Director-General concerned.
9.6 In addition to the time periods mentioned above there are a number of other factors that may require health records to be kept for longer periods, but no clear-cut rules exist in this regard. For instance, certain health conditions take a long period to manifest themselves, (e.g. asbestosis), and records of patients who may have been exposed to such conditions, should be kept for a sufficient period of time. The HPCSA recommends that this should not be less than 25 years.
9.7 A balance must be reached between the costs of (indefinite) retention of records (in terms of space, equipment, etc.) and the occasional case where the practitioners’ defence of a case of negligence is handicapped by the absence of records. The value of the record for academic or research purposes, and the risks resulting from the handling or complications of the case, are additional
12. Retention of patient records on CD-ROM
12.1 Storage of clinical records on computer compact disc (CD-ROM) is permissible, provided that protective measures are in place:
12.1.1 Only CD-ROM technology that is designed to record a CD once only, so that old information cannot be overwritten, but new information can be added is used;
12.1.2 All clinical records stored on computer compact disc and copies thereof are to be encrypted and protected by a password in order to prevent unauthorised persons to have access to such information;
12.1.3 A copy of the CD-ROM to be used in the practitioner’s rooms will be in a read-only format;
12.1.4 A back-up copy of the CD-ROM must be kept and stored in a physically different site in order that the two discs can be compared in the case of any suspicion of tampering;
12.1.5 Effective safeguards against unauthorised use or retransmission of confidential patient information must be assured before such information was entered on the computer disc. The right of patients to privacy, security and confidentiality must be protected at all times.
2. Electronic Communications and Transactions Act
Section 12: Writing
A requirement in law that a document or information must be in writing is met if the document or information is—
(a) in the form of a data message; and
(b) accessible in a manner usable for subsequent reference.
Section 14: Original
(1) Where a law requires information to be presented or retained in its original form, that requirement is met by a data message if—
(a) the integrity of the information from the time when it was first generated in its final form as a data message or otherwise has passed assessment in terms of subsection (2); and
(b) that information is capable of being displayed or produced to the person to whom it is to be presented.
(2) For the purposes of subsection 1 (a), the integrity must be assessed—
(a) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display;
(b) in the light of the purpose for which the information was generated; and
(c) having regard to all other relevant circumstances.
Section 16: Retention
(1) Where a law requires information to be retained, that requirement is met by retaining such information in the form of a data message, if—
(a) the information contained in the data message is accessible so as to be usable for subsequent reference;
(b) the data message is in the format in which it was generated, sent or received, or in a format which can be demonstrated to represent accurately the information generated, sent or received; and
(c) the origin and destination of that data message and the date and time it was sent or received can be determined.
(2) The obligation to retain information as contemplated in subsection (1) does not extend to any information the sole purpose of which is to enable the message to be sent or received.
Section 17: Production of document or information
(1) Subject to section 28, where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information, and if—
(a) considering all the relevant circumstances at the time that the data message was sent, the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document; and
(b) at the time the data message was sent, it was reasonable to expect that the information contained therein would be readily accessible so as to be usable for subsequent reference.
(2) For the purposes of subsection (1), the integrity of the information contained in a document is maintained if the information has remained complete and unaltered, except for—
(a) the addition of any endorsement; or
(b) any immaterial change, which arises in the normal course of communication, storage or display
3. Civil Proceedings Evidence Act
34. Admissibility of documentary evidence as to facts in issue
(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on production of the original document be admissible as evidence of that fact, provided—
(a) the person who made the statement either—
(i) had personal knowledge of the matters dealt with in the statement; or
(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with therein are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably have been supposed to have personal knowledge of those matters;
Many medical practices have already moved to electronic patient records and no longer retain hard copy files for various reasons. I am not aware of any legislation requiring medical records to be retained in hard copy format, however, there is always a risk when medical records are kept in any other format, especially if the original documents have been destroyed.
Any electronic records should consider and comply with the requirements of the Electronic Communications and Transactions Act set out above to ensure admissibility as evidence, if required. The provisions of the Protection of Personal Information Act 4 of 2013 (POPI) should also be considered in respect of retention of records, security and protection of patient confidentiality.
-Written by Megan Marais
