As of January 1, 2020, the regulations regarding the retention period of medical records and juvenile records have changed. Not only has the retention period been increased from 15 years to 20 years, the starting point of the retention period has also been changed, making compliance easier. Nowadays, the retention period for the entire file begins to run from the last change in the file. Previously, the retention period in respect of a file commenced with every creation (in youth care: also from the time of receipt) of a file document, which led to a multitude of retention periods per file and the necessary implementation problems. In practice, therefore, even before the law was amended at the KNMG's suggestion, the last change to the dossier was used as the starting date for the retention period for the entire dossier.
Although the 2020 amendment to the law significantly simplified medical record retention practices by providing that the retention period for the entire record begins to run from the time of the last change to the record (Article 7:454(3) of the Civil Code), it left unanswered a question that regularly recurs in practice: does this rule also apply when the last change does not concern the "data concerning the patient's health and the operations carried out in relation to him" referred to in paragraph 1, such as a change of address?
An affirmative answer would mean, for example, that if just before the end of the retention period - started since the penultimate amendment - the file is amended in connection with a change of address, the 20-year retention period starts running again. And what if in the 39th year another such change occurs?
It does not appear from the Explanatory Memorandum that the legislature considered these situations[1]. Nor is there any case law or disciplinary court ruling on this issue. The KNMG Guideline on Dealing with Medical Data also does not provide any guidance on this issue in section 2.7[3].
The legislator explicitly included in article 7:454 paragraph 3 BW a possibility to keep the file longer than 20 years if this follows from "the care of a good care provider". In doing so, the legislator mainly had medical-substantive motives in mind[8][9]. Therefore, it does not seem plausible that non-medical changes should be covered by this regulation.
If the file no longer needs to be kept on medical grounds, it is not necessary to keep it because of a change of address. Moreover, the principle of necessity opposes this, as does the principle of data minimization[10].
This interpretation also leads to legal inequality: patients with the same medical situation could receive different retention periods based on administrative changes. This violates the principle of equality from the KNMG Code of Conduct[11].
A non-medically substantive final amendment to the medical record does not lead to a new start of the retention period. The legislature evidently did not foresee this situation, nor is extending the period necessary for proper care.
It is recommended that the KNMG clarify in the Guideline that article 7:454 paragraph 3 BW only applies to medically substantive amendments. In addition, in a revision ('WGBO 2.0') the legislator could explicitly change the term 'last amendment' to 'last medical-substantive amendment'.
