Can physiotherapists take patients records with them when they leave a practice?

This is an area that is most likely to lead to conflict and/or litigation. Here Physio First does not offer advice upon what to do as each case has to be judged on its individual merits, but here are a number of points that should be considered.

Employee or self employed
There is a distinction here between being "employed" and being "self employed". In the case of an employee, even if the contract of employment does not cover the issue, there is an "implied" term of the contract that effectively says that an employee must not do anything that could damage the business of their employer 

If self employed, the issue of patient records and "whose" patients they are, should be dealt with in the contract. If it is not then ask if there was any verbal agreement on this issue? If there was not, then it is possible for both the practice Principal and the associate to lay claim to the patient records and very often the only person who can decide is a judge - which is the worst possible scenario. 

The advice of Physio First therefore, is that if this is not covered in the contract, take legal advice BEFORE taking any action. Make sure that the solicitor that you select has experience of "employment" or "partnership" litigation issues.

What can I do if my employee or associate has taken details?

This again will be the matter for separate legal advice BEFORE threatening any action. The possible options include:

Seeking an injunction (court order) requiring the individual to return or destroy the information taken plus compensation for any losses to the business, plus the legal costs involved.

Making a complaint to either the CSP or the HCPC for a potential breach of patient confidentiality? 

If you require further information on this point, please contact the Physio First General Secretary.

[August 2012]

For how long should I retain patient records?

Records are retained in accordance with existing policies and current legislation.

9.1 Records are retained for a minimum of eight years after the conclusion of treatment.

9.2 Obstetric records are held for 25 years.

9.3 Records relating to children and young people are kept until the patient's 25th birthday or eight years after the last entry if longer.

9.4 Patient records are stored securely at all times.

9.5 Computerised physiotherapy records are registered under the Data Protection Act 1984.

9.6 Records are released with the patients permission.

9.7 A patient or carer is aware that the patients records may be accessed in accordance with health authority policy.

9.8 In line with the 1998 Data Protection Act, a procedure must be in place for patients to have access to their records.

[February 2009]

How do I deal with requests for information about patients from commercial intermediaries?

The correct response in all cases is to say that unless you, the member, is satisfied that your patient has authorised you to communicate any details whatsoever to them (and preferably to have this information in writing), you should decline these requests.

What has emerged is that on some occasions the individuals making the request have regarded the refusal as being unnecessarily unhelpful and incapable of understanding the patient confidentiality issue that is at stake.

If faced with this problem please take a note of the individual who requests this information and the organisation that they work for and supply those details to our office team at minerva@physiofirst.org.uk and marked for the attention of our Chairman or General Secretary and we will attempt to deal with the problem at source.

[February 2009]

How much should I charge a solicitor for writing a medico legal report?

You should charge for the time it takes based on your hourly consultation rate (to an upper limit of £50)

[February 2009]

What are the rules for supplying patient records to patients or solicitors?

Under the Data Protection Act 1998, if you receive a request in writing from a patient for a copy of their medical records to be sent to them (or more commonly to their solicitor or a nominated intermediary) you must supply a copy of their medical records within 40 days.

Please always check that there is a written request that is signed by the patient himself or herself.

Please note that it is common for practitioners to request payment before sending copies, as it is common for those requesting the records to delay payment for some considerable time or even not pay at all.

Finally there is no guidance as to what or how to charge for the copying of records, and the advice here is to charge only what can be justified in terms of time and cost.

A new development has recently emerged where a number of our members are receiving letters from solicitors or intermediaries where they are being told, in the letter requesting copies of their patients medical records, that they must supply the records without charge as the patient was seen within the previous 40 days.

We have contacted the Data Protection Agency who has confirmed that such requests are inaccurate.

The law states (through Statutory Instrument 2000/191 that came into force on 1st March 2000) that if there has been an amendment to the patients records within 40 days of the request, the patient has the right to view the record without charge.

This does not however mean that the practitioner may not charge the patient or anyone requesting a copy of their records.

To conclude therefore, if you receive a request for medical records you may continue to charge as above the only guidance being that your charges may not exceed £50.

[February 2009]

What is a clinical record?

A clinical record is "anything that contains information (in any media) which has been created or gathered as a result of any aspect of the physiotherapy intervention. The record may contain information about the current episode of care only or may be a compilation of every episode of care for that individual.

[February 2009]

What should Clinical Records Contain?

One of the rights that every patient expects is that a medical record is kept of their treatment:

Records should be: 

  • full;
  • accurate;
  • up to date;
  • clear; and
  • held securely

The duty of physiotherapists is to comply with the patients right by ensuring that a full physiotherapeutic record of the treatment they have carried out is maintained and held securely.

The record should contain appropriate data relating to:

  • The patient's perceptions of their needs;
  • The patient's expectations;
  • Patient demographics;
  • Presenting conditions/ problems;
  • Current and previous medical history;
  • Current medication/treatment;
  • Contra-indications/precautions/allergies;
  • Social and family history /lifestyle;
  • Relevant investigations;
  • Evidence of assessment;
  • Evidence of a clinical reasoning process;
  • Evidence of a treatment plan;
  • Evidence of treatment based upon evidence based practice;
  • Evidence of evaluation using standardised or recognised outcome measures;
  • Transfer of care/discharge;
  • Informed consent as a process;
  • Communication with patients/ carers/ other professionals.

[February 2009]

Who owns the clinical records?

All NHS records are "public records under the terms of the Public Records Act 1958."

In the private sector, the records are the property of the employer if an independent health provider employs the physiotherapist.

In industry, the record belongs to the occupational health department.

Employers must obtain written permission from a patient to view the physiotherapy record. Systems should be in place to restrict access by the employer.

In private practice the record belongs to the practice. However, any therapist who has treated the patient and entered information into the record, must have reasonable access to the record; particularly if, after leaving the practice, a complaint or allegation is made against the treating (documenting) therapist.

This point is, however one that can generate a great many problems, especially where a physiotherapist is working as a self-employed associate whether alongside another physiotherapist (e.g. a practice principle) or others (e.g. a GP, consultant, etc) because, unless ownership of the records is made absolutely clear in a written contract between them, arguments may exist that could support either party's claim to ownership of the records. It is for this reason that it is vitally important to ensure that this point is dealt with, within a written contract between the two. The recommendation for a written contract is to ensure, as with all agreements, that either or both parties can produce a copy if there is any doubt about what was agreed, thus making it unnecessary for such a matter to go to court.

[February 2009]

Why are clinical records important?

Please see the FAQ "what should clinical records contain" for a full answer to this question

 

 

What advice does Physio First give about reporting electronically?

Members are reporting some problems when they are asked to produce reports such as initial assessments, interim and final reports on-line.

The problems appear to arise from members gaining knowledge that the report that they have submitted on line has, on occasions, been altered so that it is not the same report as the one that is filed.

If members find themselves in this situation it might be helpful to have Physio Firsts view on this which is:

  • It is never acceptable for anyone anywhere to change any members report without that members specific acknowledgement and agreement.
  • The reason is that as a professional you are asked for your report and it is this report in its completed version that must be kept intact.
  • If members find that their reports are being altered without their specific agreement and sanction, it is that members duty to bring this to the person(s) attention and confirm that this is unacceptable and unprofessional and that such activities must cease.
  • It would also be advisable to consider reporting such companies to both the CSP and Physio First.
  • Members must always keep a copy of any report filed, so that this can be referred to later as the full and final report should the need arise. A paper copy is possibly the most robust in this context as even some PDFs copies can now be altered.

November 2009