Business Dilemmas

So what should you do with your records following retirement? Dr Kathryn Leask provides the answer

 

 

 

 

 

Dilemma 1

How long do I retain records?

Q I was a consultant orthopaedic surgeon and have had an extensive medico-legal practice. But now I have retired from my private practice and have now decided to bring my medico-legal practice to an end, too. 

Please could you advise me what my responsibilities are with regards to retention of the records I keep?

A Although the records relate to private medico-legal work, for the purposes of record retention, the GMC explains in its Confidentiality (2017) guidance:

‘Paragraph 130: The UK health departments publish guidance on how long health records should be kept and how they should be disposed of. You should follow the guidance, even if you do not work in the NHS.’

In terms of current guidance for the retention of records, NHSX published updated guidance on this topic: Records Management Code of Practice 2020. The minimum retention periods start at Appendix two on page 50 of the guidance, which is a ‘Health records retention schedule’. 

Although the NHSX guidance refers to NHS records, the same minimum retention periods can be applied to private records.

 

Retain for ten years

The guidance advises that litigation records are retained for tenyears. When acting as an expert witness, the instructing solicitor should advise the expert witness when the case has concluded. 

It is common for instructing solicitors to ask that the bundle you are sent is destroyed at the end of the case, but, of course, that may mean you are unable to provide a response to a complaint or claim, should one arise later. 

These are very much minimum retention periods and you might choose to retain your records for longer in a particularly serious or contentious case. 

Bearing in mind that concerns or allegations can arise many years after the events in question, it can make it much harder to mount an effective defence if there are no existing records; for example, if a claim was made against you. 

The retention period for children’s records is much longer: typically to the child’s 25th birthday. There is a slight anomaly for a child who is 17 at the point treatment commences and their records would be kept until their 26th birthday. 

Data protection law

Your advantages of retaining records from a medico-legal point of view need to be balanced by the requirements of the General Data Protection Regulation (GDPR)Article 5(1)(e), which says you should not retain records for longer than necessary. 

There are also practical implications to consider when retaining medical records. Records should be stored securely to mitigate against breaches of personal data and confidential information. 

The GMC also states in its Confidentiality guidance: 

‘Paragraph129: You must make sure any other records you are responsible for, including financial, management or human resources records or records relating to complaints, are kept securely and are clear, accurate and up to date.’

The GMC does not define what ‘secure’ is, but a locked metal filing cabinet secured to a wall in a locked room or building is common practice.

Any digitised copies should be stored in accordance with British Standard BS10008:2014. This guarantees the integrity of the records and ensures they meet the requirements of the Civil Evidence Act 1995. 

This means that the records could be used as primary evidence to defend a claim against the
doctor.

If scanned records are not stored according to this standard, then they can only be adduced as secondary evidence and will carry less weight in court proceedings.

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Staying registered at GMC when work stops 

A consultant’s retirement throws up another question this month for Dr Kathryn Leask about what indemnity and GMC registration provision they may need 

 

 

 

 

Dilemma 2

Do I require GMC registration?

Q I am a consultant cardio­logist and have recently retired from my NHS and private practice. 

I have continued to do some medico-legal work as an expert, but would now like to bring this to an end. 

Can you tell me what to do if I am contacted by a solicitor in relation to a pre-existing case or a patient I have seen previously? What indemnity and GMC registration do I need now?

A In terms of follow-up work, for an MDU member whose work is confined to medico-legal work only, we recognise that they may be asked to clarify the content of a report or be called as a witness to attend court.  

Providing they are not adding to, or providing a new view on any previous report, then this would not be considered ‘new’ work.  

If you were to engage in any new work, whether that be a slight alteration or change to an existing report, then you would require active MDU membership. You would also require GMC registration and a licence to practise (LTP) and the appropriate indemnity in place.  

With regards to having a LTP, you may wish to seek advice from the solicitors’ firm that you take instructions from to establish whether they would expect you – undertaking your proposed follow up work – to remain registered with the GMC and/or with an LTP.

In general terms, some experts who have relinquished their LTP continue to undertake medico- legal work, but there are caveats to this.  

Firstly, the correct MDU subscription would still be required and there are limits to the extent of work that can be undertaken. 

Limit your practice

MDU members without a LTP would need to limit their practice to reporting on matters of breach of duty and causation relating to another medical professional’s examination, condition, diagnosis or treatment, and/or opinions on clinical or medical issues without reference to an individual patient.  

If a member intends to take on medico-legal work that involves providing opinions on current conditions or prognosis, they would need to retain their LTP and retain the appropriate MDU membership.

If you are intending to apply to give up your GMC registration entirely, this would only be an appropriate step once you had ceased all professional activity. The GMC requires an application to be made to give up registration and the full details regarding this process can be found at https://tinyurl.com/3u8ce3cd.

Doctors can apply to give up their registration up to three months in advance and as part of that process, are required to declare whether they have provided medical services within the last five years.  

This is known as a ‘provision of medical services statement’ and accounts for the most recent three months of medical services provided. The statement requires completion by the doctor and any ‘individuals, bodies or organisations to whom you have provided medical services to even if you were self-employed’. 

If you intend to apply to give up your GMC registration in the future, then it is important to let the membership team of your defence organisation know so that your records can be updated and reviewed accordingly.  

You should keep them updated with regards to the type of work you are doing and your GMC
status.

Dr Kathryn Leask is a medico-legal adviser at the Medical Defence Union

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