The medical record...what lies beneath

Dr Richard Stacey explores the extent of medical records and highlights where important information can be found beyond the core GP records

It might appear obvious what constitutes a medical record: computer entries, written records, hospital correspondence and test results. But, from a medicolegal perspective, what comprises a patient’s notes runs deeper than this. What might be termed “secret records” can be extremely important in relation to complaints and claims.

What might be termed “secret records” can be extremely important in relation to complaints and claims

In June 2009, chief medical officer Sir Liam Donaldson issued a circular referring to a recent appeal court judgment which highlighted the dangers of keeping information separate from patient records, stating: “if separate records are kept (and this would be unusual) they should be signposted in the main record.”¹ He concluded that practices are strongly advised not to keep separate records. In this article we will take a look at what constitutes a “secret record” and why this is so important.

The appointment book

The appointment book (either in written or electronic form) is part of the medical record and can be useful when verifying a patient’s attendance at the surgery. MPS dealt with a potential claim where the patient’s solicitor alleged that their client had attended on several occasions complaining of red-flag symptoms. a review of the records demonstrated that the patient had attended on a single occasion, at which stage the GP had made a referral under the two-week rule.

Initially the patient’s solicitors were reluctant to accept that the notes were complete; however a review of the appointment book corroborated the fact that there had only been a single attendance. Given that we did not have the consent to disclose the appointment details of all the other patients in the appointment book, we offered to disclose the appointment book in redacted form (ie, with all the other names blocked out); however, the patient’s solicitors were prepared to accept reassurances that the appointment book did not support the patient’s case and the claim did not proceed.

The visit book

The visit book (either in written or electronic form) can be particularly important as some clinical details are usually recorded in it. MPS was involved in a case where a GP responded to a late visit request on a Friday evening from an elderly, slightly confused lady who was complaining of a swollen right lower leg. The GP was concerned that the patient may have a DVT and arranged an urgent admission; thankfully, while an ultrasound was equivocal, a venogram excluded the diagnosis and the patient was discharged several days later.

Unfortunately, because the GP did not return to the surgery until the following Monday morning he forgot to make a note of the consultation. the patient (as a result of her confusion) subsequently complained that she had developed a swollen leg as the result of the venogram and asked to see the note of the consultation.

The GP explained that he had omitted to make a note of the consultation, but that the visit book had recorded “swollen right lower leg since yesterday” – this reassured the patient that her leg had in fact been swollen prior to her admission.

The message book

The message book (or the practice electronic messaging system) can be a useful source of additional clinical information. The advent of the electronic messaging system has made it much easier to link a message directly to a patient’s record; however, it should be remembered that any entries in a written message book do form part of the medical record.

MPS was involved in a case relating to a patient who had just registered at the practice and called asking for a prescription for antibiotics. The receptionist gave the message to the on-call GP who suggested that the patient should be seen. The patient was given an appointment later that morning and saw another GP who prescribed amoxicillin.

Unfortunately the patient was allergic to penicillin (although the allergy had yet to be recorded on the computer system as she had only just registered with the practice) and sustained an anaphylactic reaction requiring hospitalisation.

Any entries in a written message book do form part of the medical record

The patient pursued a claim and the GP indicated that whilst there was nothing in the medical records to suggest that they had investigated the possibility of a drug allergy, their usual practice would be to do so before prescribing. The patient asserted that she had told the GP that she was allergic to penicillin: hence there was a conflict in the evidence. During the investigation of the claim, it came to light that there had been a written entry by the receptionist in the message book, stating: “requests antibiotics for bronchitis – allergic to penicillin.”

On the basis that the gp had a duty to explore the possibility of an antibiotic allergy before prescribing, there was no record that this had been done and the patient had volunteered this information to the receptionist; the conclusion was reached that it would not be possible to successfully defend the claim.

Child protection

Child protection reports do cause significant problems for the following reasons:

• they often contain particularly sensitive information
• they are usually littered with third-party references
• they present problems both in relation to storage and disclosure.

Child protection reports may contain information that is important to the care of a child and should be stored in the patient’s medical records (either in written or electronic form or both). Many practices have adopted a policy of storing child protection reports separately to the medical records; however, this presents a difficulty in that the GP will not be able to immediately access the information therein and such correspondence is easy to overlook (and hence omit) if the patient changes practices and the notes are transferred.

Some child protection reports will need to be provided in a heavily redacted form and, if this is the case, it would be helpful to provide an explanation as to the reasons

A particular difficulty arises when a request for disclosure of the records is received under the provisions of the Data Protection Act (1998). In such a context (and assuming that the person making the request has the appropriate authority to access the medical records), it is important that the whole record is reviewed to ensure that any third-party references are removed, together with any information that may cause serious harm if disclosed. It should be remembered that the interests of the child should be considered as paramount.

This means that some child protection reports will need to be provided in a heavily redacted form and, if this is the case, it would be helpful to provide an explanation as to the reasons. Given that child protection reports are particularly likely to contain third-party and potentially harmful data, it would not be unreasonable to flag them in some way as an alert to this potential difficulty.

Complaints

Correspondence relating to complaints should be kept separately to the medical records. Under the provisions of the data protection act (1998) correspondence relating to complaints would be disclosable, with the caveat that any correspondence passing between MPS and the GP in this context is privileged and thus can be withheld. In the context of responding to a complaint, the response can be redrafted on several occasions before it is finalised. it is therefore important that only the final version is retained on the complaints file and any previous drafts destroyed.

In addition, care should be taken in relation to the wording of any internal emails (including attachments) that are exchanged when a response to a complaint is prepared (on the assumption that they identify the complainant), as they would also be disclosable.

Imagine trying to explain and justify the following comment to an already disgruntled patient: “Bob, please find attached the latest pointless rambling from Mrs Smith, shall we removed the deranged old fool from the list?”

Summary

GPs should be cognisant as to the extent of what constitutes a medical record in the wider context, and that such records would be disclosable to a person with valid authority to access the records (subject to the caveats as set out).

The cases referred to are based on amalgams of real cases.

References

1. www.dh.gov.uk, Record keeping: a letter to doctors

Last updated: December 2010

Please note: Medical Protection does not maintain this article and therefore the advice given may be incorrect or out of date, and may not constitute a definitive or complete statement of the legal, regulatory and/or clinical environment. MPS accepts no responsibility for the accuracy or completeness of the advice given, in particular where the legal, regulatory and/or clinical environment has changed. Articles are not intended to constitute advice in any specific situation, and if you are a member you should contact Medical Protection for tailored advice. All implied warranties and conditions are excluded, to the maximum extent permitted by law.