Health records – your no.1 risk mitigation tool Q&A

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The materials provided are for educational purposes only. Whilst all reasonable care has been taken in preparing these materials, including the accuracy of the information supplied, MIPS does not accept any liability whatsoever arising out of the use or reliance of the information provided. 

Questions and answers

How do you recommend consent should be documented for an anaesthetist?

Your consent must indicate that an appropriate discussion took place.  How you choose to document it is not as important as what you document.  You must be able to demonstrate that you discussed the anaesthetic plan and the material risks, both objective and subjective.  Please refer to the article entitled ‘Medicolegal Insights in Anaesthesia’ published in the latest college blue book for more detail.

How to be time efficient in completing notes and avoid irrelevant information.

Time constraints are the tyranny of all practitioners.   For our own safety however, we cannot afford to let our documentation suffer as a result of this.  The rule of thumb is that you must include enough information to allow another practitioner, with only the notes at their disposal, to take over the care of your patient in a seamless fashion.  Over documentation is rarely a problem.

When documenting examination findings - i may write - patient consented to examination. I will detail examination findings and the end with examination completed without issues. Is this sufficient if later the patient complains that something happened untoward during the exam. Of course a chaperone is the best solution but not possible sometimes e.g. late and admin.nursing team have gone home.

The only thing that could be added is ‘examination explained’.   Your comment about chaperones is correct and if you have any concerns in a non-emergency situation, it is defensible to arrange to re-attend when a chaperone can be present.

I did private practice as a child psychiatrist, patients aged 3-18 yrs old. How long do I need to keep my records?

In NSW, ACT and Vic you must keep records for 7 years or until a child reaches 25 years. This is generally considered a good guide for all states and territories, from a medico-legal perspective. If there is a medico-legal risk associated with treatment of a patient, or a significant health event, suggest keeping the records longer (until such time as there is little or no risk of litigation). 

If a patient gives written consent to you forwarding their report, say from specialist to a GP by email, is it safe to do so?

Email is never technically ‘safe’, unless using encryption or password protection which can enhance safety. However your responsibility is to take reasonable steps to protect personal information from misuse, interference and loss as well as unauthorised access, modification and disclosure. Patient consent to email information is a must (and it’s good to have a standard form they can sign which highlights the inherent risk with email), but it doesn’t release you from the obligation to take reasonable steps to safeguard. For example, checking receiver’s email is correct and current, having IT security in place, not emailing highly sensitive information or information that if intercepted would create a significant risk of harm to the patient.

Can you speak a little on the topic of occupational medicine concerns? i.e. WorkCover records, pre-employment medicals, employers requesting medical information/reports, when and how they can do this, and how to protect ourselves as, etc.

Different worker’s compensation systems in place in each state. There are useful resources available eg. through SIRA (NSW) – usually one nominated or primary treating doctor.

Be mindful that:

  • The role of nominated or treating doctor in WC claims is different and broader than usual GP. Focus on return to work and necessary to collaborate with stakeholders. Notwithstanding, boundaries are important.
  • Only certify what you are comfortable to with reference to the clinical basis. If outside scope or tenuous clinical basis, stop. Consider referral to a specialist/allied provider.  
  • Don’t be afraid to stand your ground (with employers/patients etc). You can only provide care and guidance within your skill set. May require an occupational physician etc to comment on capacity for certain pre-injury work. 
  • Certifying long-term absence from work is likely to invite issues as work is seen as a key aspect to recovery. If necessary ensure clinical basis and record the same. 
  • Maintain open communication with your patient, and inform them of discussions with the employer/rehabilitation provider etc.
  • Communication and record keeping are key. Ensure patient’s understand your role, and stakeholders know how/when to contact you. Have a system to enable you to triage enquiries and organise when to address these.
  • Insurer/employer/patient/allied health providers all likely to see your documentation.  Make sure it (including certificate of capacity) includes sufficient detail to enable other stakeholders to progress recovery/return to work. This will ensure you maintain transparency and the clinical basis for recommendations is clear.
  • Good idea to let your patient see (or at least know the contents of) any reports/certificates to be provided to employer/insurer prior so they aren’t taken by surprise. Can discuss recommendations too. 

We require a signed agreement to use information only for the specified purpose and not to copy to other parties but legal firms often refuse to sign our (legally drafted) form. We feel this leaves us open and do not provide information but this often results in harrassment and even abuse of our admin staff. Please comment and advise.

If you are directed to provide information with an appropriate written authority (patient, government agency or court) you are compelled to do so.  If you have concerns about the possible dissemination of this information amongst parties, you can outline your concerns in a cover letter, however you are not responsible for policing this.  You have a right to withhold information if you feel that the patient, yourself or a third party is at significant risk by its release, however this decision should only be made in consultation with MIPS.

What is MIPS' position on the use of voice-recognition software to create verbatim medical records?

This is acceptable as long as you are not recording patient consults, and the notes generated are checked for accuracy. Note if there is a ‘separate recording’ ie. Dictation, this recording itself may be considered a medical record. However, if the software converts instantly to text without a separate recording, this is not an issue. Your primary responsibility is to ensure that the software creates a record that accurately reflects your recording. 

Looking to the future, is there any scope for AI tools to assist with reviewing or completing medical records to support the role of doctors?

Potentially in the future but this is not appropriate at present.   We would consider any attempt to use such technology to replace a doctor recording or scrutinising their own notes ill-advised. 

With regards to requests by insurance companies ,TAC, Workcover etc where the patient has signed an authority to release their medical information at some point in time ( often months or even years ago) , should we be requesting a more recent signed authority ? What is a valid time frame?

Currency of consent is not specifically defined and depends on what the consent is for.  In this situation several months would be reasonable.  Beyond this time, practitioners should check with the patient or request an updated authority.

What are the expected standards for opioid prescribed patients, what does the coroner expect to see recorded

  • Necessary authorities MUST be obtained and on file (refer to state Health departments – distinct from and additional to authorities under PBS for scripts)
  • Clinical basis/therapeutic need must be recorded 
  • Input from pain specialists if ongoing prescribing
  • Attempt and record alternative treatment options (or record why contraindicated/not tolerated or otherwise inappropriate).
  • Ensure scripts are compliant 
  • Also helpful to record having checked Doctor Shopper/considered drug seeking behaviour
  • Be mindful that long-term prescribing of s8’s for pain management is generally not supported by current medical evidence. 
  • Due attention given to the duration of scripts

Medical records requested by patients solicitors for eg MVA claim , who goes through the records it another GP or a specialist.

In the first instance it will be your patient’s solicitor. However, they usually go to a medical practitioner who provides expert opinion on the case too. Can also be read by your patient, opposing solicitor, claims handler for the Insurer, medical practitioner retained by opposing party the Court.

If medical records are requested by the patient are we obliged to give it to the patient?

Generally yes.  Please see Q7 for the caveats to the provision of patient records.

Every one of my clinic letters contains the following line at the very end of it: "The contents of this letter and any attachments may not be forwarded to any third party without prior written consent of (my name)". Is that useful at all?

There is no onus on any party receiving your letter to abide by this, however it is possible that it results in you being notified when it is disclosed which can be useful from the perspective of notifying your insurer of particular issues, or addressing issues yourself.

How to estimate the service fees for time spent to print health summary and correspondences

It depends on the context. If this is for medico-legal purpose there are often guides as to what a witness can charge. However, if it is in response to subpoena or a patient request (assuming it’s not more appropriate not to charge at all if say, the patient has had an adverse outcome), the usual guide is the actual cost of the time taken ie. the cost to the business in terms of the admins wage, for them to photocopy for 15 minutes, the actual cost of the paper for photocopying etc.  It is generally suggested that a reasonable fee is $25 for time and 20cents per page. 

Are statements like these adequate: red flags discussed with patient/ side effect discussed

These statements hold little value since they do not specify what red flags or side effects were discussed.  To prove that you discussed a particular item and therefore fulfilled your duty of care in this area, details must be documented.

Any comments about "Chart warfare?" Something that comes up quite a lot in Emergency - its senior led, so people rarely call a registrar for "advice", we expect the patient to be admitted or at least seen. Sometimes easiest way with 'problem' inpatient team is "I will document you refused to see the patient."

Be aware that anything you write cannot be deleted.   There is however no reason why facts cannot be recorded however be circumspect about the language you use.   Assume that any entry will be scrutinised and be prepared to defend your choice of words.  If it is unacceptable to say, it is unacceptable to write.

Even routine documentation causes occ dissent - with 4 hour targets we record the time for decision to admit and "surg/medical/xxxx referral." Usually mandatory practice. "Uncontactable" docs (scrubbed etc) see this as a form of aggression and want the time of actual contact, not message-left-in-theatre. Usually try to explain - documentation has led to proof you're understaffed & you got more, but it can be an ongoing problem with juniors being pressured from both sides. (The answer to the latter of course is 'tell the reg to talk to me/my boss.') But many don't want to be seen as confrontational - they might be working with the guy next term.

Please see the response to Q 17.  Facts are facts and should be recorded.  Do not fabricate entries out of fear of offending someone.

If a patient asks for a letter from the specialist addressed to the GP ,can the copy be handed over to the patient without the specialists consent

It is acceptable however use your discretion if you think that it contains material that might be best discussed by the other practitioner with the patient first.

How much notes we shall write for item codes like consultation?

You need to write enough to convince a peer that you have met the criteria for that item code. For a standard GP consult you still need to record history, exam, investigations, management plan to comply with Medicare obligations plus (for example in NSW) details of diagnosis, medication prescribed, date and nature of treatment etc to comply with statutory obligations. Length will vary depending on circumstances. 

How to streamline and maintain consistency in records on a busy practice day/ running late?

The eternal question.  You must do the best that you can but do not compromise the standard of care offered nor the standard of your documentation to fit in another patient.

How and when can you access your medical records from a practice you previously worked at as a contractor. Do you need to apply through a lawyer?

It depends why you want them.  If you are no longer part of the treating team you have no right of access.  If you are required to respond to a complaint with AHPRA or, the Coroner is seeking information, it is best to request them through AHPRA/coroner.  Otherwise, the records belong to the practice, and for the practice to disclose them they need appropriate authority eg. Subpoena or patient consent. 

What do we do with the medical records after retirement? Can they be given to the patients?

If they are current patients you should plan ahead to facilitate continuity of care, and pass them on to their new doctor. If they are dormant patients, you must continue to store them for the statutory minimum of time discussed above. If you sell your practice, notes can be retained with the practice.  We do not recommend that you give original copies of notes to the patient since you cannot guarantee their safety, and they therefore may not be available if you need them for later proceedings.

The general public is constantly reminded about rights of the patients in media, magazines and other platforms. In this age of technology where doctors can be very easily defamed by negative reviews on facebook and other social media platforms. This is on the top of that patients can go to HQCC, ombudsman, or write a letter to the practice manager.
Doctors are always giving patients the benefit of doubt still an unpleasant scenarios can arise due to complexity of the consultation process itself and sometimes the time pressures in general practice whilst the doctor just go home and analyse the situation how to make it better next time patients can head to the Facebook and social media to take out their anger.
I wonder what are the rights of doctors in this situation? Where should they go ? who should they complaint to? How to counter the Facebook revenge?

It is always best to try to de-escalate conflict directly with patients and reach a resolution, so they don’t turn to social media in the first place.  Once posted however they are extremely difficult to deal with.  In general, we do not recommend that you respond.  Occasionally these reviews can be taken down.  This is at the discretion of the hosts and depends on the nature of the review including any allegations or explicit language.  If the patient behaviour tips into defamatory/criminal behaviour there are legal avenues available, however this is not something MIPS is able to support you in.  It is always however worth discussing it with us in the first instance.

When patients or us doctors request clinical notes for continuity of care and the patient's prior doctor refuses to provide them, what are the options then?

With the appropriate authorisation, doctors are duty bound to comply with the patient’s directions about where to send the notes.  A failure to comply should be referred on to AHPRA.

I have a cloud based practice management system, where a patient's online medical record might be shared by more than one clinician in the same practice who are involved in their care, with the knowledge and consent of the patient (e.g. psychiatrist and psychologist). Is there a confidentiality issue with this, and should the patient have a different record for each clinician?

It is usual for multiple doctors to share a single document management system.   Access is only appropriate for those directly involved in the patient’s care.   Multiple patient files should be avoided since they have the potential to fragment patient information and impair patient care.

Would you agree that " Attention to COMMUNICATION ' is THE Tool to risk mitigation

It is certainly the number 1 tool to avoid complaints, however when complaints do arise, documentation is the key to defence.

Any guide for writing concise notes but not too long so important details don’t get lost in long detailed notes

Please see Q2.

When checking results there are options with reception to advise, doctor to speak to, urgent appt etc in Best Practice - one of our clinical colleagues advised that we do not tick the doctor to speak to but rather tick reception to advise and add a note in the comments section that doctor wants to speak to patient, apparently this pertains to when accreditation is done and the auditors are checking on how results are reviewed. Could you please comment on this.

Need more information on this system. Priority is ensuring results are actioned.  Never let bureaucracy dictate or compromise your practice.  Patient care comes first.

Legally do I have to discuss normal results with patient ?  Can I mark electronically no action for normal result

This may or may not be appropriate depending on the test.  Patients have been known to complain that they suffered as the result of not receiving any information about test results.  Clinic staff are able to relay normal results for some tests and thus relieve you of this duty.

Often no details provided by the patient are correct , ie phone or address . What to do?

You must be able to demonstrate that a reasonable attempt has been made to ensure that the patient details are up to date.  This responsibility is largely that of the clinic.

How much further should patient recall be taken if there is no pt. response to phone recalls and registered letters ?

A registered mail letter is considered to be the gold standard.  It is then considered that the practitioner had made a reasonable attempt to contact the patient.

Confirming that when pts want records for new health provider, a summary of her care will be sufficient? Or I do not release her notes

The patient has the right to request either, and you have a responsibility to comply.  It is likely that the new practitioner would prefer a full copy, and if only summary is sent, they are at liberty to request the whole file.

What is the legislation regarding providing health information when the patient is deceased?

Authorisation for the release of information of a deceased patient must be obtained from the executor of the will.

Just wondering I am wrong if a patient came to me for a completely unrelated condition ,eg eczema and I mentioned that I did not want to review her latest imaging /bloods etc as I did not organise them, and to tell the patient to return to that doctor for full explanation? If I document my actions ,am I legally protected?

If these were routine tests with insignificant results, it would seem unreasonable for you to refuse to share this information.  If, however the results needed to be discussed at length and this is best done at a separate appointment, with the original doctor then this may be appropriate.   If your decision not to discuss the results leads to an unacceptable delay in the divulgence of the results, then you may well be found to be negligent.  

How valid is 'autofill'? ie a pasted pre-prepared paragraph for common encounters?

If the autofill covers the exact content of the patient consultation or description of the procedure, then its use may be valid.  Be aware however that a review of records that reveals the frequent use of autofill immediately raises the questions of whether an appropriate consultation has occurred.  

is it important to document quantification of risk rather than listing risks of complications?

Ideally the record reflects the exact details of the consultation and, if statistics were quoted it is very useful to document these.  This allows it to be demonstrated at a later date that you fulfilled your duty of care to the patient, in that an appropriate discussion was had, and that the patient was provided with sufficient information to allow them to make a reasonable decision.

medical records can be destroyed when legally allowable  but is it a bad idea?

There is no problem complying with the law and we are heartened when members elect to do so, however in this situation it can be argued that if the records can be kept safely and securely indefinitely, then it is in your interests to do so since you can then provide MIPS with the records if, in the extremely rare situation, we are required to respond on your behalf at a later date.

Do patients have any responsibility if they keep only seeing doctors who have the earliest appointments in a group practice ? Can they expect all the doctors will read the notes from previous doctors and Ip to what reasonable period?

Patients have the right to expect that each new doctor will adequately appraise themselves of their history as documented in the notes and receive seamless continuity of care.

should a report we write for a lawyer or workcover insurance  should be stored in the record

Our most recent legal advice is that patients no longer require the authority of the organisation that requested the report, to have access to the report.  As such there is no reason why these reports cannot now be retained in the history where they are open to patient discovery.

If patient female patient decline chaperon can I decline  like rectal/ vaginal and breast examination?

Yes, you have the right to decline to proceed however you should make every attempt to make sure that the patient is not disadvantaged, by, for example, providing a timely, acceptable alternative appointment.

Please comment . I had a patient have a fall of a horse. 2 weeks later fell on my verandah. 3 years later  she sued the practice for back pain. Due to confidentiality could not advise she had a fall off horse !!!  Luckily the business insurance lawyers did eventually subpoena my records but confidentiality should not stop your defence in other areas

Patient records are always discoverable and any good lawyer will always arrange for them to be subpoenaed to establish the patient’s ‘pre-incident’ level of function.

When patients complained to AHPRA and they were wrong are those patients reprimanded

I wish!

In our practice, we have multiple patients who do not attend referrals, and are contacted several times by referred health service.  Should we be double-checking whether they still want the referral (with informed consent), and if we perpetually re-refer is this ok??

Perpetual re-referral does not get to the heart of the problem as to why the patient is not attending and we have a duty of care to do so.  The reason for the non-attendance should be sought and documented and either a re-referral then made or, if the patient does not wish to follow your medical advice, this should be documented.  Consistent non-compliance with specialist referrals suggests a non-therapeutic doctor/patient relationship and may be grounds to consider removing your services.  It is often helpful to discuss these situations with MIPS.

Where and how to record information about a patient shared with you in confidentiality?

All information shared with doctors is offered in confidence and the patient should be informed of this and its limitations as discussed in the webinar.  The problem arises when the patient requests that information is not recorded in the notes.  In the first instance, the patient should be reassured of the sanctity of the notes, however if this does not satisfy the patient, I suggest you contact MIPS to discuss the specifics.

Contact MIPS 24/7 Clinico-Legal Support 1800 061 113 for specific advice. 

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