Generally, comprehensive and clear medical records are the distinguishing feature of a good medical practice. A patient’s medical records should be clear, accurate, legible, made contemporaneously, signed and dated, facilitating easy refresh of patient information for continuity of care and follow-up, as well as for future reference such as preparing medical reports.
Who do medical records belong to?
According to The Guideline of The Malaysian Medical Council [MMC Guideline 002/2006] “A patient’s medical record is the property of the medical practitioner and the healthcare facility and services, who hold all rights associated with ownership”.
Additionally, Regulation 44 (1) of the Private Healthcare Facilities and Services Regulations 2006 states that “A patient’s medical record is the property of a private healthcare facility or service”.
Therefore, patients do not have the right to retain the original copy of their medical records.
Are patients entitled to access their medical records?
Yes, patients are entitled to access their medical records and be given copies of such records. The right of access to a patient’s medical records was found in the High Court case of Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825 where it was held:
“[21] Based on the legal duties and rights that arise from the physician- patient fiducial relationship, and further having regard to the provisions in the guideline and the common law principles, the legal position in Malaysia vis-à-vis the patient’s right of access to medical records can be summarised as follows:
(a) The ownership of a patient’s medical record vests with the physician or hospital as the case may be. However, the physician or hospital must deal with the medical records in the best interest of the patient;
(b) The patient has an innominate and qualified right of access to his medical records and there is a corresponding general duty on the part of the physician or hospital to disclose the patient’s medical records to the patient, his agents, medical advisers or legal advisers;
(c) The physician or hospital may refuse to disclose partly or wholly the medical records to the patient in certain limited circumstances, such as, but not limited to, situations when such disclosure would be detrimental or prejudicial to the patient’s health in that the information is likely to cause serious harm to the physical or mental health of the patient or of any other individual contained in the medical records; or when such disclosure would divulge information relating to or provided by an individual, other than the patient, who could be identified from that information;
(d) When the circumstances giving rise to such qualification for refusal to disclose does not present itself, and when the request for disclosure is reasonable, having regard to all the circumstances, the physician or hospital shall give copies of the medical records to the patient upon payment of reasonable copying charges.”
The High Court further held:
“If access is withheld unreasonably and the patient is to put to cost and expense to procure a court order to compel production of the medical records, for instance under the provisions of O. 24 r. 7A of the Rules of Court 2012, then the patient would in such circumstance be entitled to cost on a solicitor-client basis.”
Medical practitioners and healthcare facilities are strongly encouraged to allow patients access to their medical records except in situations where there are justified reasons for withholding them. The Malaysian Medical Council (MMC) encourages disclosure of medical records unless:
(a) The disclosure may be detrimental or disparaging to the patient or any other individual.
(b) Cause serious harm to the patient’s mental or physical health or endanger his life.
(c) There is no consent given by patient/ next-of-kin.
Court Intervention
In the event a patient is denied access to their medical records, the patient may seek the court's intervention to obtain an order for the production of the medical records. This procedure, known as a "pre-action discovery application" is made pursuant to Order 24 Rule 7A of the Rules of Court 2012.
However, initiating such legal proceedings will result in delays and unnecessary costs for the patient, which could have been otherwise avoided.
The MMC states that the withholding of information of the care, diagnosis, treatment and advice given to the patient, and relevant copies of the Medical Records, is unethical.
In these circumstances, medical practitioners and healthcare facilities are encouraged to disclose the patient's medical records without undue delay, as patients ultimately have a legal right to access their medical records.
Contents of a Patient’s Medical Records
The MMC lists the following items which may make up the contents of a patient’s medical record:
· Doctor’s clinical notes
· Recording of discussion with patient/next of kin regarding disease/
management/ possible use of tape recording for such discussions
· Referral notes to other specialists for consultation/co-management
· Laboratory reports
· Imaging records and reports
· Clinical photographs
· Drug prescriptions
· Nurses’ reports
· Consent forms
· Operation notes/anaesthetic notes
· Video recordings
· Printouts from monitoring equipment
· Correspondence with other healthcare professionals
· Computerised/electronic records
· Recordings of telephone consultations.
Good medical records, whether electronic or handwritten, are crucial for ensuring the continuity of patient care. Furthermore, comprehensive medical records are also essential for legal purposes. For medical practitioners and healthcare facilities, they are vital in defending against complaints or medical negligence claims, as they offer a clear view of the clinical judgment exercised at the material time.
Medical Records or Medical Report?
It is imperative for a Medical Records Department or a Patient Liaison Officer of a healthcare facility to be able to clearly distinguish between medical records and a medical report. Medical records encompass the comprehensive documentation of a patient’s clinical history, while a medical report is a specific document prepared by a medical practitioner based on the patient’s medical records. Accurate differentiation between these two is essential for ensuring the integrity and appropriateness of both clinical and legal proceedings.
In the event that a patient initiates legal action against a medical practitioner and/or healthcare facility, a medical report would form the basis of the medical practitioner’s defence. Consequently, the preparation of a medical report demands meticulous attention and precision.
Should the medical practitioner foresee a medico-legal issue arising from a medical report, it is advisable to seek the opinion of legal counsel prior to disclosure.
Contents of a Medical Report
The MMC suggests that a medical report may begin with the following preamble:
· A brief statement of who the medical practitioner is, his specialty and
appointment
· Whether the medical practitioner has the authority to write the Medical Report
· A statement of which medical records were available when writing the report
· Any special circumstances
A medical report may contain (in whole or part), the following:
· Patient’s identification data
· Dates and time of admission or treatment
· Brief history
· Significant examination findings
· Results of relevant investigations
· Diagnosis
· Treatment
· Management plan
Conclusion
The legal landscape regarding medical records in Malaysia is clear - while the ownership of medical records lies with the healthcare provider or facility, patients have a qualified right to access their records. This right is balanced against the need to maintain confidentiality and protect the patient's welfare.
The case of Nurul Husna Muhammad Hafiz & Anor underscores the importance of allowing patients access to their medical records except in situations where there are justified reasons for withholding.
Good medical records are essential not only for the continuity of patient care but also for legal defence in cases of complaints or negligence claims. Thus, healthcare providers and practitioners must strive to maintain comprehensive and accurate records, and prepare detailed medical reports when required, to uphold the standards of care and ensure legal compliance.
7 August 2024
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