What comprises a patient’s clinical record?
It is abundantly clear that clinical entries, referral letters, reports, radiology and pathology results are all part of a patient’s clinical record.
But what about the more modern lines of communication?
We now see practitioners communicating with patients, referring colleagues and their office managers by texts, emails and instant messages. When do those communications form part of a patient’s clinical record?
The answer is more broad than many practitioners realise, and has implications not only for what information a patient can access in their records, but also as part of the discovery process in court proceedings.
The definition of ‘health record’
In the ACT, the Health Records (Privacy and Access) Act 1997 (the Act) sets the legislative standard for what should be included in a patient’s health record, at least insofar as the patient is concerned. The Act provides a set of privacy and access rights for health care consumers to their own personal health information. The Act does not specifically refer to ‘communications’ by a practitioner about, or to, a patient, but they are captured by the legislative definitions of ‘personal health information’, ‘health record’ and ‘record’ in broad terms.
Under the Act, ‘personal health information’ of a consumer means:
- any personal information, whether or not recorded in a health record, relating to the health, an illness or a disability of the consumer; or collected by a health service provider in relation to the health, an illness or a disability of the consumer.
‘Health record’ is defined as:
- any record, or any part of a record held by a health service provider and containing personal information; or containing personal health information.
Finally, the term ‘record’ includes:
- all or part of a record in a documentary or electronic form which includes a consumer’s personal health information, such as photographs, test results, medical imaging materials and reports and clinical notes relating to the consumer. It does not include de-identified research material.
Given the broad definitions of the above terms under the Act, any communications (including text messages or emails) sent by a practitioner to the patient, or by a practitioner to another practitioner, who is involved with or who will be involved with the patient’s care, form part of a patient’s clinical record – along with any replies to those messages or emails.
Some guidance as to what comprises, or what should comprise, a patient’s clinical record can also be found in ‘The Standards for General Practice 5th edition’ (RACGP). The Standards stipulate that patient’s health records should include records of consultations and clinically-related communications. The standards specifically refer to patient emails being included. No mention is made of text messages, however, the Standards clearly imply that the form of the communication is irrelevant and if the content includes clinically relevant information then they form part of the clinical records.
Additionally, ‘The Good medical practice: a code of conduct for doctors in Australia’ stipulates (at 10.5) that maintaining ‘clear and accurate’ records is essential for continuing good care of patients.
The records should report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medication, referral and other management. Additionally, the records should be sufficient to facilitate continuity of patient care. In our view, those requirements reinforce the notion that text messages and emails form part of a patient’s clinical record.
Maintaining complete and accurate clinical records is a vital part of a practitioner’s role in providing good health care to their patients.
Practitioners should be aware that any communication relating to a patient’s health information or clinical care, regardless of its written or electronic form, can comprise part of the patient’s clinical records.
For those reasons, practitioners and their staff should keep in mind that:
- all communications with their patients should be saved into the clinical record;
- all communications with other practitioners about a mutual patient’s care should be saved into the clinical record; and
- when communicating by relatively informal methods, those communications may be accessed by their patients in both clinical and a litigious circumstances and the content should be kept appropriate.
This article was written by Sarah McJannett, Partner and Lisa Gooneratne, Special Counsel.