Records and retention periods
The rule today
Ten years, twenty years, then gone
In the Canton of Bern, patient records have had to be kept for at least twenty years since 01.01.2023 (Art. 6 PatV). Until 31.12.2022 it was ten years. After that they may be destroyed, and most hospitals and practices do exactly that. Records from the early 1970s need not exist at all today.
Which supervisory authority knows what individual hospitals actually did once the period expired? None. The cantonal health office has no knowledge of it. Anyone wanting access has to approach the institution directly - if it still exists and if the record still does.
OL-DEThe single exception
Kept only where a law forces it
To this day not a single patient record has been transferred to the cantonal archive of Bern. With one exception: the inpatient records of the three former state psychiatric institutions Bellelay, Muensingen and Waldau up to 1981. Bellelay is already in the archive, Muensingen follows in 2027 at the earliest, Waldau in 2030 at the earliest. Outpatient records have been destroyed apart from a small sample.
These records are not kept because anyone recognised their value. They are kept because the AFZFG obliges the cantons to - the federal act on the reappraisal of compulsory social measures and placements before 1981. The law came after those affected had fought for it for decades and the Federal Council had apologised in 2013.
That is the mechanism at issue here: first the admission, then the law, then the archive. In that order, and only in that order.
OL-DEWhat follows from it
Time-barred before it is recognised
For everyone else who was the subject of state action in a hospital, a school, an office or a police station, the evidence is destroyed once the period expires. Not lost, not mislaid - destroyed, lawfully and as planned.
Reckoning is therefore possible only where a wrong is big enough and old enough to find a political majority first. Everything else is time-barred before it is even recognised. Anyone wronged today would hold nothing in thirty years, even if a future majority wanted to look into it.
OL-DEWhy 26 rules?
Cantonally regulated, nationally felt
How long a record about a person is kept is not written in federal law. It is written in 26 cantonal health acts. Whether it then goes to an archive or is destroyed is written in 26 cantonal archive acts. There is no federal office that so much as collects these 26 rules in one place.
Liability, by contrast, has been regulated nationwide since 01.01.2020: claims for personal injury lapse after twenty years (revised limitation law in the Code of Obligations). So the period in which a person can bring a claim is national and uniform. The period in which the evidence for it exists is cantonal and uneven.
This is not theory. A number of cantons have moved up to twenty years - the Canton of Bern as of 01.01.2023 - while others remain at ten. The doctors' association responded by writing twenty years into its professional code and advising the profession to keep records longer than their own canton requires. A professional body is patching what the legislator leaves open.
Someone treated in Bern may still have a record after fifteen years. Someone treated in a canton with ten years does not - under identical federal law, an identical limitation period and an identical claim. Where you live decides whether you can still prove your own history.
The federal government has itself shown that it can be done differently: the AFZFG obliges all cantons to secure the records and grant access. When the political will was there, the division of powers was no obstacle. So the question is not whether the federal government can regulate this. The question is why it only does so retroactively.
OL-DESources
- Bundesgesetz ueber die Aufarbeitung der fuersorgerischen Zwangsmassnahmen und Fremdplatzierungen vor 1981 (AFZFG, SR 211.223.13)
- Patientenrechtsverordnung des Kantons Bern (PatV, BSG 811.011), Art. 6
- Auskunft Gesundheitsamt des Kantons Bern, Abteilung Aufsicht und Bewilligung, 23.09.2026
- Auskunft Gesundheitsamt des Kantons Bern, Abteilung Aufsicht und Bewilligung, 24.09.2026
- Auskunft Staatsarchiv des Kantons Bern, stv. Staatsarchivar, 24.09.2026
- Revidiertes Verjaehrungsrecht, Obligationenrecht, in Kraft seit 01.01.2020 (Personenschaden 20 Jahre)
- Eidgenoessischer Datenschutz- und Oeffentlichkeitsbeauftragter EDOEB, Einsicht, Aufbewahrung und Loeschung von Patientendaten
- Standesordnung FMH, Art. 12 Abs. 2 (Aufbewahrung 20 Jahre)
- Medienmitteilung des Regierungsrats des Kantons Bern zur Aenderung der PatV, Aufbewahrung neu 20 statt 10 Jahre
TS120