Today’s correspondent works:

… as a medic (Not AHPRA registered) for a mining company in Western Australia.  As a part of our daily process, we drug test a percentage of workforce. This is a system generated process and is random in selection.

Medical staff have been completing a ‘Test Request Form/Chain of Custody form’ that they collect personal information such as name, date of birth and record the result of the urine test.  If this test result is negative the form is scanned or retained in paper form as well as being entered into a spreadsheet.

The issue being debated is the retention of this information. Do we need to retain the paper copies for a certain period?  I have researched WA Legislation and Regulations and found there is nothing that refers to retainment of any information for a private medical practice unlike other states/territories. So my questions are these:

1)         Is there legislation that I am missing that states we must retain this data for a certain period of time?

2)         If there is a requirement, is a randomised drug screen considered to be ‘medical’ in nature or more a health and safety process?

The company has stated that we are not required to complete the forms as they are used for non-negative testing however there are many medics who disagree and believe that we should be capturing and retaining this data.

Not really an ‘emergency’ question but given the correspondent is a ‘medic’ I’ll have a go.

Keeping records

I’m not going to track down all the rules on medical records suffice to say the Office of the Australian Information Commissioner says (https://www.oaic.gov.au/privacy/your-privacy-rights/health-information/access-your-health-information):

Whether a doctor is required to retain patient records depends on the law in the relevant state or territory. For example, in the ACT, NSW and Victoria, privacy law requires a health service provider to keep records for 7 years or, in the case of a child, until the child turns 25. For more information about state and territory privacy laws, see Privacy in Your State.

The West Australia Primary Health Alliance’s Retention and Destruction of Medical Records (Fact Sheet v2, November 2020) says:

General practices must securely store medical records until they are no longer practically or legally needed and have been destroyed or permanently de-identified in a manner that maintains patient confidentiality. 

There is currently no legislation in Western Australia mandating the retention or destruction of private medical practice health information. 

However, the RACGP recommendations are in line with legislation in Victoria, New South Wales and the Australian Capital Territory, which requires medical records to be retained for:

• children until the child turns 25

• adults for seven years from the date of the provision of the last health service.

The reason 7 years is often selected is because the normal limitation period for bringing a legal action is 6 years and that period begins to run from when the claimant first becomes aware of the facts giving rise to a claim or the person turns 18. This situation is somewhat more complex in WA – the Limitation Act 2005 (WA) sets a three-year limitation for personal injuries claims but six years for other claims (ss 13 and 14) and subject to exceptions, where the person was under the age of 18 the limitation period ends when they turn 21 (ss 31-33).  Limitation periods do not commence until the person had the facts available to determine that they have a cause of action (ss 55-56).

These drug tests are tests of employee so I think an employer should also be guided by the need to keep employee records. In WA ‘Employers must keep all employment records for at least seven years after they are made for both current and past employees’ (Department of Commerce, Employment Record Keeping Obligations: Fact sheet for small business employers in the state system; https://www.commerce.wa.gov.au/sites/default/files/atoms/files/record_keeping_obligations_fact_sheet.pdf; Industrial Relations Act 1979 (WA) s 49D and for employees outside the state system see Fair Work Act 2009 (Cth) s 535, although the sort of records being discussed here are not the sort of record that is in the list of required records: Industrial Relations Act 1979 (WA) s 49D; Fair Work Regulations 2009 (Cth) r 3.32; see also Fair Work Commission Record Keeping https://www.fairwork.gov.au/pay-and-wages/paying-wages/record-keeping#what-records-have-to-be-kept-and-what-needs-to-be-in-them ).

Even if these are not prescribed records they should be kept as evidence should evidence be required. It may be required if a worker claims they were injured, or wants to show that they have had a clean record, or the employer wants to show that yes, they do indeed drug test their employees or for many other potential reasons. I would think any employer that has a drug testing regime would want to keep records of the tests, both positive and negative to show that they do the tests and to show that they are managing the risk. If you only keep records of positive results you would have evidence of a 100% drug affected workforce!

Originals or copies?

Another question raised is the difference between the paper copy and a scanned copy.  My correspondent says ‘the form is scanned or retained in paper form as well as being entered into a spreadsheet’ but the question asked is ‘Do we need to retain the paper copies for a certain period?’ but later they ask about retaining the ‘data’.

A scanned copy is as good (probably better) than a paper copy. The Evidence Act 1906 (WA) s 73A says:

A document that accurately reproduces the contents of another document is admissible in evidence before a court in the same circumstances, and for the same purposes, as that other document, whether or not that other document still exists.

In simple terms, if there’s a record of it happening, it happened and if there’s no record, the inference is that it did not.

That is a photocopy, or a print of a scanned document is admissible in exactly the same way the original would have been admissible. Documents in electronic form are also acceptable (Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA) ss 9, 12 and 13).

The Evidence Act also provides for the admission of business records (s 79C) that is a document produced to accurately record information about a business is admissible. In this case the spreadsheet would be admissible to prove the contents recorded, ie that a person was tested on a given date with a negative result.

Conclusion

The answer to the question ‘Do we need to retain the paper copies for a certain period?’ is no, the scanned copies would be sufficient as would keeping the information transcribed onto the spreadsheet provided the record could be produced or reproduced as required and is legible.

Is there a period that the records must be maintained? The answer appears to be ‘no’. There is no legislation relating to medical records and these do not appear to be prescribed employment records, so it doesn’t matter whether you call the records ‘health care’ or ‘whs’ records. Good practice would say they should be maintained for at least 7 years to allow any limitation period to expire. Exactly how long they should be kept becomes an issue of risk management – assessing the potential problems if they are not kept etc.  If they are records relating to an employee, I would think there would be a good argument to keep them for 7 years after the employee leaves the workplace. On those issues however the employer should seek guidance from their lawyers and their insurers.

Remember this is not a place for legal advice and every employer would have to make their own assessment as to risk management as well as identifying the records they are required to keep under relevant industrial law and the period for which those records should be kept. 

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.