1 March 2011

Q. Is there any legal requirement about the length of time a dentist needs to keep patients’ clinical records?

There is no law which requires a dental practitioner to make and keep dental records of care provided to patients, whether NHS or private. There is, however, a professional obligation to make a record as set out in Standards for Dental Practitioners paragraph 1.4:

Make and keep accurate and complete patient records including a medical history, at the time you treat them. Make sure that patients have easy access to their records.

A contractual duty to make a dental record of care provided also arises under the NHS dental contract.

Apart from the clinical benefits there are two reasons why the retention of records is important. First, patients have a statutory right to see records made about their dental care. While they live this is under the Data Protection Act 1998. If they die the right passes to those who may have a claim against their estate and arises under the Access to Health Records Act 1990.

The second reason for keeping records is for reference in the event of patient dissatisfaction leading to a future claim or a complaint. Without reference to contemporaneous records a dentist will be heavily disadvantaged in defending allegations.

It is not as simple as it seems however. The Data Protection Act says that someone holding sensitive personal data (ie. dental records) should retain that information no longer than necessary. There is no definition of ‘necessary’ and what is necessary will depend on individual circumstances.

The Department of Health has come to practitioners’ assistance by setting out some guidance in the Code of Practice on Retention/Disposal of Records under the NHS. By that guidance practitioners are encouraged to put a maximum period of 30 years on retention.

Short of 30 years the NHS code suggests the following:

Community care

  • 11 years (adults)
  • To the age of 25 years (children)

Hospital care

  • 8 years (adults)
  • To 25 years or 8 years post death (children)

If a dentist decides that it is no longer necessary to keep a dental record, for example, 12 years have passed since an adult last attended for treatment, he should destroy the records, choosing a confidential means of doing so. If that patient subsequently asks to see the records it is a reasonable response to say that they were destroyed because it was no longer necessary to keep them. Nowhere is there any suggestion that the patient should be told before destruction.

There are time limits for patients to make claims for compensation. Generally the time limit is three years from the date of any damage said to have been caused but this is flexible because it can be extended if the patient can show that he did not know of the damage until a later date. Also the courts have a wide discretion to extend the three year period indefinitely but one factor they would take into account, when deciding whether to exercise discretion, would be a reasonable decision made by a dentist to destroy the records because he considered it no longer necessary to keep them.

A patient has indefinite entitlement to get access to his records if he is under a ‘disability’. A dentist who is aware of a patient suffering such disability as would prevent him from conducting his life unassisted would be wise to make note on the records and avoid destroying those in order to ensure that, if a claim were to develop or the patient’s representatives later to seek access, they are available.

You can read more about record keeping here

Dental Protection Limited (registered in England No. 2374160) is a wholly owned subsidiary of The Medical Protection Society Limited (MPS) which is registered in England (No.36142). Both companies have their registered office at 33 Cavendish Square, London W1G 0PS.

 

‘DPL membership’, ‘DPL member’, ‘Dental Member’ and ‘Dental Protection member’ refer to a dental member of MPS. Dental Protection Limited serves and supports the dental members of MPS, with access to the full range of benefits of membership which are all discretionary and set out in MPS’s Memorandum and Articles of Association. MPS is not an insurance company. 

 

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