Storage of health records

28 April 2020

In South Australia, there is no dedicated legislation with respect to the storage and retention of public or private medical records.

Instead, it is necessary to look to an interplay of legislation which effects the storage and retention of medical records in particular circumstances.

In South Australia, the State Records Act 1997 provides for retention of certain public sector records. Specifically, public sector medical records are to be stored in compliance with General Disposal Schedule No. 28 – Clinical and Clinical-Related Records of Public Health Units in South Australia (August 2014). The period for storage of public sector medical records under that Schedule differs depending on the contents of the record itself so if there is an obligation under a supplier contract with the Public Sector for records to be stored as if the patient was a public patient, reference will need to be made to Schedule No. 28.

Otherwise, in South Australia, it may be appropriate to consider, as a general rule, an underlying record storage period of at least 7 years which is broadly consistent with the situation in New South Wales and ACT.

However, there are numerous discrete legislative payments. Without being exhaustive, some of those requirements are:

  • Limitations of Actions Act 1936 (SA) – Because minors are not considered to have a legal capacity, the principal limitation periods do not run until the minor reaches 18 years of age. A limitation period of 6 years is then imposed1, allowing a patient until the age of 24 (at least) to initiate proceedings.
    Apart from patients who were minors, patients who suffer from a legal disability have up to a maximum of 30 years to initiate proceedings from the date any cause of action arose2.
  • The Criminal Law Consolidation Act 1936 (SA) provides that in some circumstances it may be an offence to destroy documentation, including medical records, which might be used as evidence in judicial proceedings3. There is no legislative or judicial guidance about the duration the documentation should be stored to prevent a breach, much will depend on whether the medical provider has been placed on notice that a claim or legal proceedings have been foreshadowed. Absent application of more discrete legislation, it may be appropriate to apply the underlying record storage period from the time claim notification was first received.
    As a corollary, the underlying record storage period ought to be applied once relevant legal proceedings have resolved, whether by judgment or settlement.
  • The Coroner’s Act 2003 (SA) provides that a death that occurs during or as a result of, or within 24 hours, of certain surgical or invasive medical procedures, including the giving of an anaesthetic for the purposes of performing a procedure, or within 24 hours of being discharged from a hospital, or having sought emergency treatment at a hospital, is a reportable death and as such may be the subject of a coronial inquest. Medical records should be retained for any actual or eventual coronial investigation or inquest and otherwise for the underlying storage period following the reportable death.
  • At a very high level, it can be said that pursuant to the My Health Records Act 2012 (CTH) Regulations and Rules, healthcare organisations participating in the My Health Records system are required to retain medical records for the patient for a period of 30 years after the patient’s death or, if the death of the patient is unknown, 130 years from the patient’s date of birth.

This article was written by David Johns, Partner and Richard Smith, Partner.

1 Section 45(1) of the Limitation of Actions Act 1936
2 Section 45 of the Limitation of Actions Act 1936
3 Section 39 of the Limitation of Actions Act 1936

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