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Holding Client Records: Department of Human Services policy for Psychiatric Disability Support Services (December 1999)

• Purpose
• The policy
• Who is it relevant to?
• Rationale
  • Background
  • Issues

Purpose

To provide guidance to Psychiatric Disability Support Services (PDSS) regarding how long client records should be kept.

The Policy

• Client records should be kept for a minimum of seven years after the client has left the service.

  or

• If the client is under 18 years of age when they leave the service, the client record should be held for seven years after the date at which the client turns 18 years of age.

  or

• If the client is under an administration or guardianship order, the client record should be held for seven years after the date the client is no longer under such an order (unless the client is under 18 years when the order ceases in which case the record should be kept until seven years after their 18^th birthday as above).
• At the end of the appropriate period (see above), the record should be destroyed unless it is considered useful to keep it. If appropriate, the record may be returned to the client.
• Client records kept for research purposes should be de-identified.
• Clients should be informed of the service's record keeping policy.

Who is it Relevant to?

The policy is relevant to all PDSS funded by the Department of Human Services.

PDSS are not required to adhere to this policy and may make their own policies regarding how long client records are kept. However, PDSS not following this policy are advised to seek independent legal advice.

There is no case law or legislation that states who owns client records of a non-government organisation funded by the Department. However, there is legal authority that supports the general proposition that client records belong to the organisation that creates them, not the client.

Rationale

Background

PDSS generally create a file for each client attending the service. The file will include personal information about the client. It will also contain the Individual Program Plan which details objectives for the client, how they are going to be achieved and progress against the objectives. Files may be electronic or in hard copy or both.

PDSS are expected to ensure that client files are kept safe, secure and confidential, in line with requirements set out in their service agreement with the Department and the National Mental Health Standards. Services should also consider requirements as outlined in the Department's Information Privacy Principles (June 1998).

Only information which is relevant to the function and activity of the service should be kept on the client file.

The client must have access to his or her record and may request corrections to the record. The request must be in writing and placed on the file-the original record itself should not be corrected.

Issues

There is no obligation in law which requires a non-government organisation funded by the Department to retain client records. However, good practice suggests that records should be kept for a period of time.

The length of time a client record should be kept for is related to the usefulness of the file. In considering usefulness, the following possibilities should be taken into account:

• Litigation.
• Any need for the PDSS to prove that it fulfilled its duty of care obligations (for example, if a client became a danger to himself, herself or others).
• The likelihood that the client may return to the service.
• Research needs.

It makes sense to keep records for seven years because legal proceedings for claims of negligence must be brought within six years of the injury, or negligent situation occurring, or if the injured party is under 18 years within six years after they turn 18. People who are a subject of a guardianship order or an administration order or both, as defined under the Guardianship and Administration Act 1986, also have six years to make such a claim from the time that they are no longer under such an order. The courts also have discretion to extend the six year time frame where the litigant is unaware of when his or her injury began.

Holding records for seven years, in most cases, ensures that PDSS will have the relevant records if proceedings are brought against them and should they be required to provide evidence about their involvement in their client's care.

To protect the privacy of individuals, agencies should not keep client records when no useful purpose for the record can be identified (see above). Records should be destroyed in a way which ensures that they cannot be retrieved or, if appropriate, may be returned to the client. If a record is being kept for research or reference purposes, all identifying information on the record should be removed.

Please Note

This policy should not be taken as legal advice. PDSS concerned about whether they should be keeping client records or the length of time records should be kept should seek their own independent legal advice.