Dental Records – who is entitled to access them?
Our dental clients often contact us with questions regarding who has access to dental records other than the patient.
The rules surrounding the access and retention of dental records can be complex, and dental practices will often receive requests from family members, other dentists, and external organisations such as social services and coroners and sometimes even the police during a criminal investigation.
In this article, we clear up the confusion over requesting dental records, who does have the right to access a patient’s records, and in what circumstances, and how dental practices should respond to these requests.
Living patient’s records
Requests from the police
If you receive a request from an external body, such as the police or social services, concerning a living patient’s records, you must consider this carefully before disclosing anything.
There is no automatic right to access, not even for the police, so unless there is a specific court order for disclosure, you must consider whether the disclosure would be justified in the ‘public interest’. An example might be if the patient or someone else was at risk of serious and imminent harm if the notes were not disclosed.
You should seek informed consent first, but if this is not possible, you must weigh what is being requested against why it is required to decide whether disclosure would be justified. Either way, it’s essential to make a clear record of why you have reached the decision you have reached and why you believe it would be in the public interest to disclose any notes if you chose to do so.
Requests from another healthcare professional
If another dentist or health care professional requests the notes, then you will need to satisfy yourself that the patient has consented to disclosure to this third party in accordance with GDPR and your professional duties of confidentiality.
There is no such thing as “off the record”, so it is not lawful to send non-anonymised case records to other practitioners or specialists without the patient’s consent.
If the patient asks you for the records, whether in writing or verbally, but requests they be sent to another dentist, you must also comply with this. The only caveat is if you are concerned that the patient does not understand what the implications of the disclosure might be. In this situation, you should explain what will be disclosed and check the patient is still happy to consent.
Deceased patient’s records
The duty of confidentiality extends beyond the death of a patient, and this must be borne in mind when deciding if access to dental records will be granted to anyone else. Ultimately, if the patient explicitly states whilst alive that they do not want their records disclosed on death, then this wish must be adhered to.
The Access to Health Records Act
The Access to Health Records Act (1990) allows access to dental records to two defined categories, namely:
- The patient’s personal representative, namely the executor of the will or administrator of the estate
- Any person who may have a claim arising out of the patient’s death.
You do not need to provide access to all the dental records when requested by the above, only information that is relevant to any claim being pursued. This may require you to obtain from the requester more information as to why the request is being made so you can determine what information should be provided.
Requests from a coroner
You may also receive a request to access the notes of a deceased patient from a coroner (or procurator fiscal in Scotland). As they have a legal obligation placed on them to investigate the death, you must provide them with access to the records.
You may also be asked by the police to provide certain information to help identify a body. In these circumstances disclosure would be justified as being in the public interests. Remember GDPR applies only to living data subjects and so would not be relevant here.
Practical tips for dealing with dental records access requests
- Here are some pointers for dealing with dental records access requests:
- Make sure you understand what is being requested and why
- Satisfy yourself that the person making the requests is who they say they are
- Train staff to ensure they understand GDPR and patient confidentiality and can identify when a request for information is being made
- Don’t be bullied by officials, who claim to have a right to access, but are unable to identify the lawful basis for disclosure
- Where applicable try to seek the patient’s consent to the disclosure first
- Always consider the wishes of the patient, whether living or deceased
- Make a clear note on the file of any decisions made and why
How JFH Law can help
If you need further help and advice regarding requesting dental records and the access of dental records, look no further than our expert team of dental lawyers at JFH Law.
Our specialist dental solicitors have been representing dentists and advising dental practices for over 10 years, and are perfectly placed to provide expert advice, whatever your situation.
If you have any questions about the content of this dental bulletin, please feel free to email Laura Pearce on firstname.lastname@example.org.
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.