Requests for advice regarding the release of records are becoming more common. Dr James Foster, Dentolegal Consultant at Dental Protection, explores this further
There are several different reasons as to why a patient or third party may request dental records. Some requests may be straightforward, others may indicate that a professional challenge is being considered. Below are a few examples of when such a request may be made:
A patient may be moving away from the area and/or found a new dentist and wish to be able to inform the new practice what treatment they have received – this is particularly common in relation to complex treatments such as the placement and restoration of implants.
If a patient is dissatisfied with treatment and seeks either a second opinion or remedial treatment elsewhere, the new practitioner examining the patient may need to see copies of the patient's records to establish what treatment has been carried out previously. If that patient was then to make a complaint about the original dentist's treatment, then they may in turn reasonably ask the patient to provide copies of the new dentist's records in order to understand the clinical findings and any potential criticism or vulnerability eg. a fractured file found on further radiographs.
Dental Protection can advise in relation to this process whereby the patient can be asked directly to provide the records with the reasoning that the request is not because the original dentist does not believe them, but needs to understand what has been found in order to see how the matter can be best resolved, if appropriate. Alternatively, the patient could be asked for a simple written consent for the original dentist to obtain copies of records from the new practice on their behalf, minimising the onus on the complainant.
In the event that a patient believes they have been harmed by negligent treatment, they will in most cases ask their own lawyer to investigate the circumstances and advise on their prospects of being awarded compensation. As part of the initial investigation the instructed lawyer will request copies of all records and radiographs or images to be reviewed by their own expert. Should a lawyer’s letter requesting copies be received, it should always be accompanied by a signed consent from the patient authorising disclosure to their representative or lawyer. In the event of receiving such a request, we would ask all members to contact us immediately for assistance.
If a patient is pursuing a claim against another dentist, the expert reporting for the claimant may wish to establish either the previous or current condition of the patient. As a result, practitioners who have also seen and treated the patient may be asked to provide copies of their records as well. Such a request would normally clarify that the claim is not against that practitioner, however this is often omitted and again, members can contact Dental Protection for assistance upon receiving such a request.
Providing a report
A patient may be pursuing an insurance claim against a third party unrelated to healthcare such as a food outlet following alleged damage to teeth from foreign bodies in a meal, or damage after a road traffic accident. In these situations, the lawyers acting for the patient may request the records or a report of the findings by the dentist when the patient was seen following the relevant incident, and any subsequent treatment.
While it is our nature to be supportive of the patient, it is essential to avoid being pushed into providing an expert report, unless that is the intention. Lawyers often push for condition and future prognosis reports as well as the costs associated thereby avoiding the costs of instructing their own expert. If opinion is given in addition to the factual reflection of the findings as set out in the records, then that dentist may then be called to defend those opinions by the other side should it be heard in court.
There are situations where other third parties such as the Dental Council, Police, other healthcare workers, insurance companies, employers etc may request dental records. Whilst most such requests are legitimately made, there are some occasions where a third party may consider they are entitled to access, when in fact they may not. This can lead to conflict and we would advise members to seek assistance.
Unfortunately, when parents have separated, conflict can arise between them around the provision of care for a child for a number of reasons. Often the dentist becomes involved in the dispute having to justify treatment to one or other of the feuding parents. There may then be several pitfalls in relation to obtaining consent to disclose records when parents are acting independently. Members should also seek assistance in such circumstances.
Can I refuse a request for records?
There are some rare instances where a clinician can refuse to give access, and whilst locally relevant legislation will be more definitive, the general principles include situations where:
• it may threaten someone’s life, health or safety
• it may impact someone else’s privacy
• giving access would be unlawful.
There are strict rules in relation to the handling of data, and members should consider the locally relevant legislation:
Hong Kong - Personal Data (Privacy) Ordinance (Chapter 486)
A dental record is confidential and subject to all the usual restrictions if a request is made for disclosure. As a starting point, it is a helpful rule of thumb to remember:
• If the requester is the data subject (ie. the patient) there needs to be a very good reason why he is not entitled to see his own records
• If the requester is a third party and not the data subject - there needs to be a very good reason why it/he should see the records.
While legislation may appear to be definitive regarding the disclosure of records, there are occasions in practice where there can be doubt as to the correct course of action. At Dental Protection we would encourage clinicians to understand that releasing the records or refusing to release them may lead to further challenge when in doubt, always seek advice.