In Canada everyone that works in the medical record industry should know that the doctor owns the record and the patient owns the information contained therein. This makes the doctor the custodian of the patient medical information (record). Most also know that the doctors are required to keep their medical records for a certain period of time, after the last time they saw the patient (referred to as the retention period). In fact, doctors are required to keep these records even after they are retired – and their estates continue that responsibility after they have died – until the end of the retention period. In British Columbia (which has the longest retention period) – this could amount to almost 35 years for a doctor who sees a new born child. That is a long time to have to keep a record, especially after retirement. There is a great page on the CMPA website (https://oplfrpd5.cmpa-acpm.ca/-/a-matter-of-records-retention-and-transfer-of-clinical-records) that gives a good summary of the retention periods for each province/territory, as well as some good general information.
There are many issues that surround the doctor’s requirement to keep those records. Some of which are:
- They must be kept in a secure location, as to protect the patient’s privacy.
- They must be accessible so that the doctor can provide a copy to the patient (or other legal entity, such as an officer of the court) upon authorized request.
- When they are destroyed, they must be destroyed in such a manner that reconstruction at a later date is not reasonably possible. And when they are destroyed, the physician should record who destroyed them, when they were destroyed, the patient’s name and the method in which they were destroyed.
- The retention period for each patient’s records expires at a different time. So doctors cannot keep all their records until the final one expires and then just destroy them all. They must be destroyed for each patient, as that patient’s particular retention period comes to a close.
- The destruction must also include all other copies of the data, including computer backups, records stored in portals/cloud storage, and even records in an EMR that is being actively used.
Every province has a minimum time that a doctor is required to retain their medical records. But what happens after that retention period is reached? In most provinces the doctors are required to destroy the records. However, a few provinces, such as Ontario and Alberta, do not have any legislation one way or another. This has led some doctors in those provinces to adopt the policy that they never have to destroy their medical records. While this is a gray area, keeping the medical records forever it just not a smart thing to do, for a doctor or clinic. It provides absolutely no benefit to the physician, while increasing their liability. Imagine the case where a physician keeps the medical records after the retention period. Then they are contacted with a legal request for the medical records for a lawsuit regarding the patient. They, at that time, are legally bound to provide the medical records, if they still have them. However, because they should not have kept them and then provided them to the court, is the patient able to then take legal action against the doctor because they should not have retained them after the retention period?
The issues around EMR record retention, destruction and archiving are going to come up more and more often as the number of doctors retiring after years of using EMRs in Canada increase.
Hopefully, the following blog posts will help encourage discussion on the subject.
Issue #1 – The Problem with Continuing to use Old EMRs
Issue #2 – The Problem with Virutalizing Existing EMRs
Issue #3 – The High Costs of Storage Centres
Issue #4 – The Problem with PDFs of Patient Records
Issue #5 – Miscellaneous Issues
Issue #6 – TimeAcct’s SEMRT Viewer