Emily Howden, dento-legal adviser at the Dental Defence Union (DDU), discusses what you need to know when retaining and destroying patient records.

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Unfortunately, a complaint or claim for clinical negligence can be made years after treatment, so it is vitally important to retain records as without them it may be difficult to defend this successfully.

How you manage a patient's clinical records depends on the category under which they fall. For example, for patients that attend regularly, it is appropriate to keep the records to assist in the ongoing care of the patient. However, you can consider disposing of records for patients who have not attended for the recommended minimum retention period.

In England and Wales, the revised NHS advice on retention1 currently recommends 15 years as the minimum retention period for the records of an adult patient and that children's records should be retained until the 25th or 26th birthday if the patient was 17 when treatment ended. This advice from the NHS might be changed in the future, so it is important to keep up to date with their guidance.

The Scottish government advises that the records for an adult patient should be retained for a minimum of ten years from when the patient last attended and ten years, or up to the 25th/26th birthday (whichever is longer), for children. Meanwhile, in Northern Ireland there is guidance on record retention from the Department of Health2 and contained within the Regulation and Improvement Authority (Independent Health Care) (Fees and Frequency of Inspections) (Amendment) Regulations (Northern Ireland) 2011.3

When a patient has died, under the statute of limitations, the deceased patient's executors or personal representatives have a maximum of three years from the date of death to start legal proceedings in pursuit of any claim made on the patient's behalf, and a further four months to serve those proceedings. It is prudent to keep the records of a deceased patient for a minimum of four years following their death.

The General Data Protection Regulation (GDPR) requires you not to keep personal data for any longer than necessary, but the Information Commissioner Office in its Information Governance in Dental Practices report,4 acknowledges that the time period is not defined.

If you own a practice which you are selling, the solicitors acting for you in the sale should incorporate into the sale agreement suitable clauses requiring the purchaser to retain the records for the recommended minimum periods, along with clauses which give you reasonable access to records during that retention period, for the purposes of dealing with any complaints or claims which might arise.

If you close a practice without selling it, the onus is on you to retain the records securely for the recommended minimum periods. Records which are to be retained by you, will need to be stored securely to comply with your duty of professional confidentiality and data protection legislation. You can either store them yourself in a secure area over which you have control, or store them at a secure commercial archiving facility. While you retain control of any patient personal data, you will need to remain registered with the ICO as a data controller.

When disposing of records, which might include study models, it is important to maintain patient confidentiality and dispose of records in accordance with national and local waste disposal requirements. If you outsource the destruction of records to a third party, then you should use a licensed confidential waste disposal company and have a suitable written agreement with them. This should acknowledge the records' confidential nature and confirm the company will take all reasonable steps to protect that confidentiality.

Additional things to consider when disposing of records include:

  • Review and appraisal of all records carefully before destroying them

  • Electronic records can be especially difficult to destroy. Seek specialist IT advice when disposing of electronic records

  • Disposal of paper records should only be conducted in a way that protects patient confidentiality, such as shredding.