3. Documentation
Learning objectives
• the legal and medical significance of maintaining accurate, objective and contemporaneous patient records
• identifying the factors that you must consider when recording information pertaining to a patient’s care and treatment
• identifying your professional responsibility in retaining and disposing of medical records
• identifying your legal obligations in relation to notification of births and deaths.
Introduction
Documentation of the care and treatment of a patient is fundamental to the practice of all healthcare professionals. This is particularly so for medical practitioners who, in the main, are directing the care and treatment of the patient via the medical records which serve as a vehicle by which to communicate with the other members of the healthcare team. A patient’s records (variously referred to as the ‘medical records’, the patient’s ‘health information’, 1 or the patient’s ‘health records’2) may include not only the medical, nursing and research notes held by hospitals and other healthcare institutions or facilities but also those notes written at the pre-admission or post-discharge phases of care delivery. The purpose of the medical records is to facilitate an optimal patient outcome through the accurate, objective and contemporaneous description of the ongoing care. In addition to providing an account of the relevant patient information, the records serve as a method of communication from one health professional, or group of health professionals, to another. Patient records may also be used for research purposes, as educational tools and as documentary evidence in legal proceedings. For these reasons, it is imperative that medical practitioners understand the significance of the content of any patient’s medical records and the potential for the use of such documents. Entry of patient information into the medical records by a medical student must be consistent with their level of competency and the policies and guidelines of the institution in which they are undertaking their clinical practicum. Entries into a patient’s medical records by medical students must also be consistent with, and in response to, the delegation of this activity by the supervising clinician.
The content of a patient’s medical records depends not only on the particular care and treatment the patient received, but also on the particular institution or healthcare facility which has created and maintained the documents. As stated by Queensland Health and quoted in Field: 3
A health record provides a vehicle for recording a consumer’s health status, particular conditions and illnesses, results of examinations and tests, diagnosis of conditions, assessments of the need for treatment, treatment prescribed, information provided, and the results of treatment. Its value rests in the content of the records, its historical basis, and its potential as a tool for accountability purposes.
Medical practitioners have both professional and ethical responsibilities to create and maintain accurate records in relation to the treatment and care given to patients. For example, the Australian Medical Association Code of Ethics requires that doctors ‘[m]aintain accurate contemporaneous clinical records’. 4
Effective Documentation
There is no Commonwealth legislation mandating the recording of patient or client information by health professionals or facilities. At the state level the recently repealed Medical Practice Regulations 2008 (NSW) mandate that a medical practitioner or medical corporation must ‘make and keep’ a medical record, 5 and the Health Services (Private Hospitals and Day Procedures Centres) Regulations 2002 (Vic) regulations 21 and 22 provide that a proprietor of a private hospital or day procedure centre must commence a clinical record ‘as soon as practicable after the admission’ and maintain that record over the period of the patient’s stay in the facility. Regulation 22 identifies information, such as the patient’s name, address, date of birth, sex and unit record number, details of relatives or friends nominated as contact persons and the relevant clinical details which are to be included in the clinical records. While there are no specific legal requirements as to the formatting of medical records, the policy provisions of the employing healthcare institution, and the case law, provide guidelines as to the particular information which should be included in the patient records. Dix et al suggest that while the ‘form and content’ of medical records created by private practitioners continues to be at the discretion of the particular provider, there is a trend towards a more uniform approach to record-keeping. 6
The following are factors to be considered when recording information in relation to the care and treatment of a patient.
1 Medical practitioners must ensure that the information recorded is clear, concise and accurate. Their documentation must be ‘objective, devoid of pejorative comment and worthy of independent scrutiny’. 7 This requirement is significant not only in relation to the accurate transfer of information between health professionals of all disciplines but also where the documents may be relevant to potential legal proceedings. The comments written by a medical practitioner as to the care given, the condition of a particular patient and their demeanour or state of mind may be used at a later time to provide evidence of an allegation of negligence, malpractice, or the degree of damage and disability sustained by the patient. The medical practitioner must exercise extreme care in the use of language or opinion which, when recorded in the clinical records, is open to interpretation by all those members of the healthcare team who are involved in this patient’s care.
In the case of McCabe v Auburn District Hospital, 8 the deceased was admitted for an emergency appendicectomy. Post-operatively, his condition was poor and deteriorating. He was spiking a temperature, sweating, complaining of severe abdominal pain, unable to keep fluids down and suffering with diarrhoea. On the fifth day post-operatively, the medical practitioner ordered a full blood count. This was undertaken and the results, which showed a high white cell count and other abnormalities indicative of a severe infection, were forwarded to the ward the same day. As it was the weekend, the medical practitioner, though ‘on call’, had left the hospital. The registered nurse receiving the results proceeded to file them in the incorrect section of the medical records and neither notified the medical practitioner nor raised the findings with the nurses on the next shift. The pathology results were not discovered until two days after they had been received in the ward. The patient later died from peritonitis.
The deceased’s mother brought an action against the hospital and the hospital staff alleging negligence. In upholding her claim, his Honour made the following comments: 9
I am of the view that the hospital notes were not, in the current case, reliable. In particular there is unreliability in recording the manifest and observable continuing deterioration of the deceased’s condition. I am satisfied that the routine temperature checks even if accurate as to scale were accompanied by a failure to note what was there to be seen, namely that the deceased was perspirant and ‘hot’. This was evident even to non-medical appreciation … I do conclude … that there were things significant in assessing the patient’s deterioration which were overlooked and the written record simply does not truly reflect the currency of the events.
His Honour went on to conclude: 10
It would be apparent from my earlier findings and remarks … that the clinical and nursing notes were deficient. Their inadequacy must have been a major factor in bringing about a situation which allowed the patient’s condition to deteriorate fatally without timely remedial treatment.
2 The timing of the documentation of patient information is often dependent on a number of factors. The institution or healthcare facility may have guidelines or protocols stipulating when the patient’s records are to be updated or the timing of documentation may be left to the discretion of the particular professional. It is important that the documentation of patient information is considered as a valuable part of the total patient care and therefore adequate time should be set aside to undertake the task. If a patient’s condition becomes unstable or deteriorates it would be necessary to carry out and document the observations more frequently. The documentation of patient information should be contemporaneous with the event and recorded in chronological order. A contemporaneous recording of an event ensures greater accuracy on the part of the writer and is more likely to be interpreted by the court as the true version.
It is not acceptable to go back and add information to the medical records once the medical practitioner becomes aware that litigation has been initiated. Often such an addition may be inaccurate due to the passage of time or, where accurate, is not considered as a contemporaneous record of what actually occurred at the time of the patient contact. In institutions or practices where the patient records are computerised, there is often an ‘audit trail’ which will identify when the entry was made. The inclusion of handwriting experts in the pre-trial stage has also increased the possibility of additions and alterations to the patient notes being detected. A finding that a medical record has been altered will obviously have a detrimental impact on the testimony of a medical practitioner who has given sworn evidence that the documentation was contemporaneous. Where the medical practitioner wishes to make an addition to the records it is acceptable to do so by clearly indicating, through the inclusion of the date and time of the entry, that the addition or amendment was made. For example, giving the date and time of the actual entry and then commencing with the prior date and approximate time the medical practitioner became aware of the information or made the actual observation. The issue of taking and maintaining thorough and complete medical records was raised in Locher v Turner11 and Vale v Ho. 12 In Locher’s case, the medical practitioner had failed to order or carry out investigative procedures on a female patient who presented with rectal bleeding. Over the 12 months between the initial consultation and a diagnosis of carcinoma of the sigmoid colon with metastases in the liver, the plaintiff had consulted the doctor on a number of occasions. The parties were in dispute as to whether, on these occasions, the patient had referred to the continuation of the rectal bleeding. The medical records did not thoroughly outline or detail the progress of the patient’s condition. The Court of Appeal therefore held that as there were no adequate contemporaneous notes recorded then neither the evidence of the doctor nor the patient could be taken as correct. In contrast, Vale’s case involved a doctor who had recorded extensive and detailed notes regarding his patient. The patient had undergone plastic and reconstructive surgery to his nose. His Honour, Judge Sinclair, when confronted with different versions of the events by the parties, preferred the medical evidence as it was consistent with the contemporaneous notes which had detailed the care that the patient had received.
3 Where there is no entry to record a change in the condition of a patient, the court may infer that no observations have been undertaken. Even the routine observations and assessments undertaken on the patient must be recorded. In the American case of Javis v St Charles Medical Centre (1996), 13 the medical practitioner had ordered hourly observations on the fractured leg of the patient to assess for the development of compartment syndrome. The medical practitioner requested that he be notified immediately of any change in the circulation to the leg. The initial observations were undertaken and recorded; however, the entries on the observation chart after that time were sporadic. When the medical practitioner saw the patient the following day, the foot was pulseless, white and the patient was complaining of pain. The last recorded observation was taken some four hours previously. The jury concluded that ‘as there were no records, there were likewise no observations and decided against the nursing staff and the hospital’. 14
In the New South Wales case of Strelec v Nelson15 the Supreme Court found the obstetrician had been negligent in the delivery of a child. This finding was influenced, by the fact the doctor did not document the events. Smart J stated:
He [Dr Nelson] acknowledged that his failure to make any note of what he had done and what had happened was a serious departure from proper practice. It was his usual practice to write what happened at the delivery. He denied that he had failed to make notes because he did not know why the delivery had gone wrong or to prevent anyone from reviewing what he had done and discovering the mistake … He had no satisfactory explanation for what had happened. He probably asked himself whether he should have pursued a different course … He was worried that he had made a mistake. It was a subject that he found disturbing. It was a combination of such reasons that led him not to make the notes.
4 All entries must be prefaced with the complete date and time of the entry and the writer of the report clearly identified by his or her signature and designated position. This information is significant when there is a query at a later time as to the care given or the condition of the patient at a particular time on a particular day. The use of military time is most effective as a means of distinguishing whether the entry is recording the ‘am’ or the ‘pm’.
5 The recording of information by all health professionals must be legible. There is little value in maintaining records that can not be read or understood by others. The case of Prendergast v Sam and Dee Ltd, Kozary and Miller16 illustrates the fact that the failure to write legibly may result in liability in negligence. In this case, the medical practitioner wrote a prescription for Ventolin inhaler, Phyllocontin and Amoxil. However, the pharmacist read the Amoxil as Daonil, a drug used in the treatment of diabetes. The patient, Mr Prendergast, who did not suffer from diabetes, took the drug and sustained irreversible brain damage. It was not in dispute that the manner of the writing of the drug could have been read by the pharmacist as Daonil. However, counsel for the doctor argued that there was no causal link between the illegible writing and the injury, as the features of the prescription should have alerted the pharmacist to the fact that he had not correctly read what he thought was written. The court held that it was reasonably foreseeable that the drug Daonil could have been prescribed, and therefore the medical practitioner was held liable. The requirement of legibility of healthcare records is not only fundamental to good patient care, it is also necessary for the purposes of maintaining the quality of health services through quality assurance monitoring and audits. In legal proceedings it is imperative that the documentation of patient and client care in the medical records is legible and able to be read by the court. In addition, as noted by McSherry, for the purpose of the private health funds and the national health insurer the writing on the documentation must be legible for reimbursement of fees for service. It is suggested that ‘legibility as a requirement for reimbursement from third party payers has been the major reason why healthcare professionals now prefer to dictate their records, which are then transcribed by third parties as an electronic file’. 17 With the ever increasing introduction of databases for the recording of patient and client information the issue of legibility of entries into the medical records is decreasing.
6 Health professionals should write only what they themselves have witnessed or assessed and avoid documenting information which is passed on to them by others. Where the event has not been witnessed, the information is hearsay evidence. If the patient relates an incident that has occurred without a witness, then the records should clearly reflect that it is the patient’s version of the event that has been recorded. As an example, the report would state that ‘Mr Black said that he fell in the shower …’ or ‘Mrs Smith is complaining that her pain is becoming more severe …’. This principle also applies to charting or signing for work done or observations made by other health professionals. Each report should be an accurate record of what the person signing the entry knows to be true. At the Coroner’s Inquest into the death of Tracey Baxter (1979), the registered nurse working on the morning shift admitted making entries on the fluid balance chart based on information given to her by the night duty nurse at the handover of the shift. The registered nurse, when questioned by the coroner as to why she had made the entries when she obviously was not on the ward at the time, said that she had intended to do the night duty nurse a ‘favour’. The obvious implication is that the credibility in recording accurate information must be seriously questioned.
7 Each page of a patient’s medical records must identify him or her by name and numerical identifier. This may take the form of a computer printout a computer generated patient identification sticker or writing the information by hand.
8 The use of abbreviations and popular terms must conform to the particular institution’s policy or protocol. There is a great danger in using abbreviations that are not commonly known and understood by other health professionals. On the other hand, medical terminology, being a very precise language conveying precise meaning to other health professionals, should be used whenever appropriate.
9 When documenting the care or treatment of a patient, words such as ‘appears’ and ‘apparently’ should be avoided. As an example, the description of a patient as ‘appears to be drunk’ does not provide objective or factual information of the patient’s status. It would be appropriate and preferable to write an accurate, specific and factual description of the physical condition of the patient such as ‘the patient’s speech was slurred and he was walking with an irregular gait’. The patient may have sustained a head injury.
10 The medical practitioner must never chart or write a report on a patient in advance.
11 Reports should not be rewritten at a later time and entries must be sequential, following directly on from the previous report. This avoids the possibility of tampering with, adding to or backdating entries with information that may be detrimental and expose the health professional to legal liability.
12 Where an error is made in the recording of information, the policy or protocol of the hospital should be followed. Where the medical records are paper-based the usual procedure will require that the medical practitioner draw a line through the erroneous material, identify it as having been written in error, date and initial it. Errors should never be torn out, removed, erased or covered over with correction fluid. The reason for this is the possibility of inferring that the medical practitioner has made an error in the treatment of the patient which he or she now wishes to conceal. Medical records maintained on an electronic database will permit the contemporaneous deletion and correction of content but do not allow for the correction of errors once the user has exited the database.
13 Documentation in the medical records is to be written in ink.
Medical practitioners must always read the patient’s medical records. While most hospital and healthcare facilities provide for a verbal handover (either in person or via recordings) at the change of the shift, this is, by its very nature, only a summary of the events that have taken place over the preceding shift and should be treated as complementary to the written report. There is always the possibility that the professional giving the verbal handover has forgotten information or failed to recognise the significance of information which became available during the shift. As a result, information which may be critical to the patient’s care and treatment will be missed.
Computerised Records
Hospital and healthcare facilities are increasingly adopting computerised charting and record-keeping. The use of information systems to create and maintain patients’ medical files has resulted in more accurate, easily accessed and up-to-date information on each individual patient. When a patient’s records are available to all healthcare providers and institutions through technology, there are obvious advantages to the medical practitioner in being able to efficiently access accurate information which may be essential to the speed with which a patient is able to be treated. As an example, where a patient has sustained significant injuries in a road trauma, the ability to access information as to their cardiovascular and respiratory status and the presence or absence of underlying diseases and disorders will significantly impact on the initial treatment.
However, there are issues of concern when using computer technology for the documentation of patient information. The most obvious of the concerns is the potential threat to the privacy of the patient. If the information contained on the database is available to authorised users, then it may also be accessed by unauthorised individuals or entities. Hospital and healthcare facilities implementing electronic databases for the recording and storage of patient information need to have policies and protocols for the protection of the patients’ right to privacy and confidentiality in relation to their health information.
Australia’s proposed national health information network, HealthConnect, has the highest Electronic Health Record profile18 and has been described as follows:
[A] person’s health-related information would be collected in a standard, electronic format at the point of care (such as at a hospital or a GP’s clinic). This would take the form of health summaries, rather than all the notes that a healthcare provider may choose to keep about a consultation.
With the consumer’s consent, these summaries would then be able to be retrieved at any time they were needed and exchanged via a secure network between those particular healthcare providers authorised by the consumer to access this information. 19
In addition to the documentation required for the patient’s medical record a medical practitioner is also required to complete other documents inherent to their role.
Birth certificates
Each state and territory requires notification and registration of births that occur within the particular jurisdiction with the Registrar of Births, Deaths and Marriages. Table 3.1 identifies the legislation for reporting births. The responsibility for notification is set out in the legislation and will usually fall to the parents of the child, however, the medical practitioner or midwife who assumed the professional care of the mother at the time of the birth or the Chief Executive Officer of the hospital in which the birth occurred may also have a responsibility to notify the Registrar. It is the legal responsibility of the institution or hospital in which the child is born to ensure the Registrar has been notified of a birth. Notification will include the name of the child and information about the parents. Each state or territory will have requirements in relation to a still-born child. A still-born child is a child who is at least 20 weeks gestation or, if gestation cannot be confirmed, weighs at least 400 grams and exhibits no sign of life after birth. Still-births are registered in the same manner as a live birth. It is an offence to provide false information to the Registrar or to fail to give notice of a birth or still-birth.
| ACT | Births, Deaths and Marriages Registration Act 1997 |
| NSW | Births, Deaths and Marriages Registration Act 1995 |
| NT | Births, Deaths and Marriages Registration Act 1996 |
| Qld | Births, Deaths and Marriages Registration Act 2003 |
| SA | Births, Deaths and Marriages Registration Act 1996 |
| Tas | Births, Deaths and Marriages Registration Act 1999 |
| Vic | Births, Deaths and Marriages Registration Act 1996 |
| WA | Births, Deaths and Marriages Registration Act 1998 |
Death certificates
A cause of death certificate, also referred to as the death certificate, 20 will be completed by a medical practitioner once they have examined the patient or client and confirmed the person is deceased. The medical practitioner responsible for completing the certificate may be the patient’s treating medical practitioner or a medical practitioner who examines the body after the death. In Queensland, a cause of death certificate may also be provided by a medical practitioner who is familiar with the deceased’s medical history and can make an assessment of the probable cause of death. The medical practitioner can only complete this certificate where the cause of the death is ascertainable and the death does not give rise to any cause for further investigation by the coroner.
All medical practitioners must familiarise themselves with the legislative definition of a ‘reportable death’ under Coroners’ legislation in the jurisdiction in which they practice (refer to Chapter 1, Introduction to law). In circumstances in which there is a ‘reportable death’ a medical practitioner must not provide a cause of death certificate. Certificates are forwarded to the Registrar of Births, Deaths and Marriages in all jurisdictions other than Queensland, where the certificate may be given to the Registrar or individual assuming responsibility for disposal of the body, and Western Australia, where the certificate is given to the individual arranging for disposal of the body of the deceased. Table 3.1 identifies the legislation requiring the registration of a death. Although the actual format of the document will vary from jurisdiction to jurisdiction it must be completed within 48 hours of a death and contain a clear statement of the medical practitioner’s assessment of the cause of the death. In Queensland and Western Australia a still-born child is required to be registered on both the birth and death registers. However, in the other jurisdictions a still-born infant is not required to be registered as a death.
Storage, Retention and Disposal of Medical Records
Medical records should be stored in a secure area that protects the records from unauthorised access, loss and damage. That is, the records must be stored in an area that is readily accessible for the purpose of retrieval and recording of patient information but also away from public access. The Privacy Act 1988 (Cth) does not impose an obligation on medical practitioners in relation to the length of time medical records are to be retained or the methods by which such records are to be destroyed or disposed of. The length of time that a patient or client’s medical records are to be retained is therefore found in the legislation in each of the states and territories and the individual policies and defence requirements of medical indemnity providers. As a general principle, the medical records of patients and clients should not be destroyed but rather retained in secure storage. A medical practitioner should be particularly mindful of retaining records which give health information that may be of particular assistance to the patient’s family (as an example, if a patient has a genetic disorder), where there has been an adverse outcome or the patient has expressed dissatisfaction with the care and treatment they have received from the medical practitioner, where there are threats of legal action or delays in diagnosis or treatment.
In the Australian Capital Territory there is no legislation specifying the length of time that a medical record should be retained, however, it is recommended that the records are kept by the medical practitioner for at least 7 years after the last health service was provided. That is, the records are retained to a time after the expiration of the limitation period for the commencement of a personal injuries claim.
In New South Wales and Victoria a medical practitioner may delete medical information as permitted by law or regulations. If the patient or client is a child their records should be kept until the child reaches the age of 25 years. For adults, the situation is similar to that in the ACT in that it is recommended the records are retained for 7 years from the time of the last health service. When medical records are destroyed it is recommended that the medical practitioner maintain a schedule of destruction which includes the name of the patient or client, the period for which the patient was under the care of the medical practitioner and the date on which the records were destroyed.
In Tasmania and Queensland there is no privacy legislation applicable to medical practitioners in relation to retention and storage of medical records. As described for other jurisdictions it is recommended that medical practitioners in Queensland retain medical records until after the expiration of the limitation period.
The Western Australia Department of Health, Patient Information Retention and Disposal Schedule Version 3, 2008, identifies the retention and disposal requirements for major categories of patient records created or received by Western Australia’s Department of Health or healthcare facilities. The schedule is authorised under the State Records Act 2000 and is operative from June 2008 to May 2012. The retention periods for particular documents, such as obstetric records, Aboriginal and Torres Strait Islander health records and in-patient records are calculated from the ‘date of last access’ and can be accessed online. 21
Medical indemnity providers, while having individual policies in relation to the safe and secure handling of medical documentation will require the medical practitioner produce the clinical records of a patient who is making a claim for compensation. The provision of indemnity cover will, in most situations, impose on the medical practitioner an obligation to fully cooperate and assist in the defence of a claim. Where the medical practitioner has disposed of or destroyed a patient’s medical records it may provide the basis for denial of the indemnity cover.
ACTIVITIES
• What is the purpose of the medical records?
• What factors should be considered when recording a patient’s information into the medical records?
• Locate and identify the legislation providing for the registration of births, including still-births, and deaths in the state or territory in which you are studying as a medical student.
To ensure that you have identified and understood the key points of this chapter please answer the following:
1 In addition to providing information to other health professionals what other purposes do the medical records serve?
2 What are the possible legal implications of failing to appropriately record patient information?
3 List the factors to be considered when documenting patient care.
4 Identify the importance of documenting contemporaneously with a patient event. From an evidential perspective, why is this type of evidence significant?
5 Describe what you would do after making an error in writing up the patient’s information in their medical records.
6 In your state or territory what are the requirements of a medical practitioner for notifying the Registrar of a birth, still-birth and death?
7 In your state of territory how long are you required to retain medical records?
Further reading
Elkin, K.; Kerr, A., ‘The importance of keeping comprehensive documentation in ensuring quality and continuity of care: Lessons from the New Zealand Health and Disability Commissioner’, Australian Health Law Bulletin May (2009) 106.
Freckelton, I., ‘Medical Records in Negligence Litigation’, Journal of Law and Medicine 5 (1998) 305.
Nisselle, P., ‘Answers to Some Common Questions about Medical Records’, Modern Medicine in Australia (1997).
Royal Australian College of General Practitioners (RACGP), Handbook for the Management of Health Information in Private Medical Practice. (2002) RACGP.
Endnotes
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3. Field, S., ‘Documentation in Healthcare’, In: (Editor: Shotton, L.) Healthcare Law and Ethics (1997) Social Science Publications, Katoomba, p. 95.
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6. Dix, A.; Errington, M.; Nicholson, K.; Powe, R., Law for the Medical Profession in Australia. (1996) Butterworth Heinemann, Port Melbourne; p 161..
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