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Record keeping

  • Q
    As a dental hygienist with an interest in hypnosis, colleagues sometimes refer anxious patients to me.
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    17 May 2016
    Am I able to request assistance from Dental Protection in the event that a claim revolving around hypnosis is made against me?
    Does the referring dentist need to understand hypnosis and should they include the request for hypnosis in the patient's treatment plan?
    The practice of hypnosis for the provision of dental treatment attracts all the benefits of Dental Protection membership that would normally apply to your DCP membership category. Whilst hypnosis is not included in the current scope of practice for dental hygienists published by the General Dental Council (GDC), it is accepted that whilst hypnosis is not itself considered to be the practise of dentistry, it may be provided to facilitate other treatments that are recognised as the practise of dentistry.

    With regard to including details of the referral in the treatment plan, Dental Protection would recommend that the referring dentist should specify in the treatment plan that they are prescribing the patient’s treatment to be provided under hypnosis. As with any other clinical situation, the prescribing dentist would be expected to have some knowledge of the procedure being prescribed, although they need not provide the service personally.

    View the full benefits of membership for DCPs
  • Q
    Can you advise me about the Data Protection Act as it applies to collecting our patients’ email addresses?
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    29 July 2014

    Can you advise me about the Data Protection Act as it applies to collecting our patients’ email addresses? I'd like to hold a prize draw for all emails that are collected within a five-week period so I can send a newsletter and promotional offers.

    Under the Data Protection Act, you need to explain to the individuals concerned why data are being collected and for what purpose they are being used. As such, you need to think whether or not your patients are likely to reasonably expect you to use their personal data for anything other than contacting them in relation to appointments, etc. Individuals should then be able to choose whether or not they are happy for their email address to be used in this way. At the time of collection you would need to make this information abundantly clear.

    Many people get very upset about receiving what they consider to be ‘junk email’. Consequently, if they are made aware of your intentions it could be that an avoidable complaint is raised. In addition, you should make it clear that you do not intend to disclose this information to a third party without their consent.

    The idea of entry into a prize draw in exchange for an email address might well appeal to some but may not appeal to everyone. The most practical way to collect such information is simply to ask the patient at the time they attend, or when booking a follow-up appointment.

    The Information Commissioner’s website has more information on this subject.

  • Q
    Can you explain my responsibility to share patient records and information with a third party if an issue of child protection is raised?
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    18 September 2014

    If possible you should seek parental consent for the disclosure of any information about a child. If parental consent is not available, as is often the case in this type of situation, it may be appropriate to disclose the information requested on a public interest ground, or in the patient’s best interests.

    Each case must be judged on its own merits taking account of local child protection guidance, with which all clinicians should be familiar. If parental consent for disclosure cannot be obtained, for any reason, you should discuss the request with one of our dento-legal advisers via the member helpline.

  • Q
    Do I need to record the batch number of every local anaesthetic cartridge that I use whilst providing dental treatment?
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    09 November 2015
    The short answer is that there is no legal or regulatory requirement to record individual local anaesthetic batch numbers and members can rely on Dental Protection to support them in the event of a challenge to the contrary.

    To learn how confusion has arisen about this subject see the briefing document
  • Q
    Do I need to take a new medical history every time I examine a patient?
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    10 March 2015

    The current guidance from the General Dental Council and from the Faculty of General Dental Practice of the Royal College of Surgeons of England is that a patient’s medical history should be checked and updated at every treatment visit.

    In practical terms it is good policy to take a full medical history every time a patient is examined and the use of a medical history form provides an excellent way of recording this information.

    It is important, however, that the patient is not left to complete the medical history form; whoever is carrying out the examination should go through all the questions with the patient to ensure they fully understand them or indeed can actually read.

    Such questioning should obviously be carried out in a manner that ensures patient confidentiality. If a practice wishes to become paperless, the medical history form can be scanned onto the computer. The hard copies should then be be shredded or incinerated.

    When a patient attends for an appointment as part of a course of treatment, it is always worth checking to ensure they have not started on any medication or have suffered any relevant illnesses since their last visit. Some practices encourage patients to volunteer such information by placing a sign in the waiting room requesting patients to inform their dentist of these types of changes.

    Taking a full medical history at each examination can be onerous, but it is certainly worthwhile both to protect the patient and the dentist’s own position. Having a written record of the patient’s medical history, signed by the patient, often affords protection to the dentist – particularly if an allegation is made that he or she had not taken the patient’s medical history into consideration when carrying out treatment, which subsequently resulted in the patient being avoidably harmed.

  • Q
    How should I record a patient's consent for routine dental treatment? Does it have to be put in writing for the patient to sign?
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    07 July 2015

    The concept of consent arises when a patient seeks advice, care and treatment from a dentist and that dentist carries out an examination of the patient and provides them with details of the treatment required together with the options, benefits and risks as well as the cost of that treatment. This is an on-going conversation that is picked up at every stage of the treatment being provided.

    Most dental procedures are carried out without the need for written consent but it is important that a record is made (either by the dentist or dental nurse) of the conversation during which the patient gave their consent.

    When seeing a patient for a dental examination there is likely to be implied consent that the patient wishes the dentist to look in their mouth and therefore opens it to facilitate this. When carrying out more invasive treatment such as taking radiographs and providing fillings, the dentist should obtain the express consent of the patient for each procedure.

    Certainly when carrying out fillings patients should be informed of the various options which are available to them, the costs of the treatment as well as the risks of not having a particular treatment carried out.

    In the UK, consent only needs to be obtained in a written form signed by the patient, when the treatment is being provided under general anaesthetic or sedation.

    Some employers make it a contractual obligation to obtain the patient’s signature on a consent form for a variety of procedures as well as anaesthesia. The employee has an obligation to respond to the terms of their contract. Indeed in complex cases it is a sensible precaution to have some form of written consent. This would apply to treatment plans for extensive restorative work or for patients undergoing treatment which could pose a significant risk, such as the removal of a lower wisdom tooth.

    The signature on a consent form does not automatically imply the patient has provided their consent to the treatment. All it means is that the patient has signed their name and may not in fact have understood the treatment which the dentist had discussed with them.

    The best way of ensuring consent has been obtained is to check with the patient if they fully appreciate the details of what has been discussed and to make good notes within the clinical records of both the discussion and the patient’s response.

    Read our region-specific advice booklets on consent in the UK

  • Q
    I am retiring soon but as yet have been unable to sell the practice. I am wondering what to do with the patient records and also about the need to continue my professional indemnity until the practice is sold.
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    27 August 2014

    It's not clear whether you intend to maintain your practice as a going concern; say by having it run by an associate or locum. If so, you would be well advised to maintain the indemnity arrangements that you currently have as a practice owner. However, if you decide to close down your practice, you will not require any continuing indemnity as your dental membership allows you to seek assistance for any incident which arose while you were paying a subscription. In other words, you do not need to continue paying a subscription once you decide to retire from both the business and practise of dentistry.

    Meanwhile it is important that your patients’ records are kept safely since the storage of these records continues to be governed by the Data Protection Act and your ethical responsibility to protect patients’ confidential information.

    As the retiring dentist, you should have access to the original records and radiographs just in case any issues are raised by a patient about an earlier treatment provided before your retirement. Your protection society will always be in a much better position to assist you in any type of investigation if you have the original records.

    Dental Protection’s advice is that clinical records should be maintained for a period of 11 years after the last time the patient attended, or in the case of a child (under the age of 16) for 11 years or up to the age of 25, whichever is the longer.

  • Q
    I am running out of space. Where and how do I keep my records, particularly plaster models?
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    26 June 2015

    There is a view that working casts and models from routine crown and bridge work could be given to the patient for safe keeping and a note made in the dental records that this has been done. If they are presented to the patient in a protective model box, they are more likely to look after them and bring them back if required.

    While this approach can relieve an acute storage problem, the fact remains that the clinician loses control over what could prove to be a critically important part of the total record.

    Off-site storage is another solution but the problem with using alternative locations – apart from any cost involved – is that retrieval may take time, even when the contents of the containers are accurately indexed. 

    Commercial storage is available both for paper records and x-rays, artefacts such as working casts and study models as well as electronically stored data. Remember that it is important to always comply with the legal requirements for retaining and/or disposing of records in whichever jurisdictions you work.

  • Q
    I am told that my handwriting is difficult to read but I don’t like using a computer. Does it matter if I continue to keep paper records?
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    18 September 2014

    You may continue to keep paper records but they will need to be legible to any reader. Changing to computer records will solve the problem of legibility, but you could also consider training your dental nurse to write up the records if you really do wish to continue with record cards.

  • Q
    I have recently been notified by my service provider that ‘because of recently changed legislation by CQC’, I now need to complete an annual Legionella assessment. Is that correct?
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    16 October 2014

    The frequency of the assessment review will depend on the findings of the original risk assessment. Provided that you have:

    • had a suitable legionella risk assessment carried out by a third party,
    • implemented any recommendations,
    • have a written scheme of action and appropriate control measures in place,

    You should be able review the assessment in line with the document published by the Health and Safety Executive.

    Legionnaires’ disease
    The control of legionella bacteria in water systems: Approved Code of Practice and guidance on regulations, it can be found here

    The guidance previously suggested at least two years as a review period but the wording has since been replaced to read regularly. The guidance now states at para 47;

    The record of the assessment is a living document that must be reviewed to ensure it remains up-to-date. Arrange to review the assessment regularly and specifically whenever there is reason to suspect it is no longer valid.

    An indication of when to review the assessment and what to consider should be recorded. This may result from, eg:

    (a) changes to the water system or its use;
    (b) changes to the use of the building in which the water system is installed;
    (c) the availability of new information about risks or control measures;
    (d) the results of checks indicating that control measures are no longer effective;
    (e) changes to key personnel;
    (f) a case of legionnaires' disease / legionellosis associated with the system.

  • Q
    I own an NHS practice in England and have just received a Freedom of Information (FOI) request asking me to reveal information about patient complaints. Do I have to answer those questions?
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    18 August 2016

    Everyone has the right to request information from a public body under the provisions of the Freedom of Information Act and the individual making the request does not need to provide a reason why the information is being requested or how it will be subsequently used.

    Since your practice provides care to NHS patients, then for the purposes of the Freedom of Information Act you would be classed as a public authority. You may be aware that you should already have a publication scheme available to ensure individuals can access relevant information and this would include access to your practice complaints procedure.

    Should your practice have a website that includes your practice complaints procedure, you could direct the enquirer to this to obtain the information. Alternatively, you might prefer to provide a hard copy. 

    Information regarding the number of complaints received by the practice is likely to be seen to be information that should be provided under an FOI request. This information should also have been provided to your Clinical Commissioning Group under the terms of your contract and the enquirer may also request information regarding practice complaints from your CCG. You may wish to consider advising them of this fact.

    When responding to a FOI request, it’s important to check the nature of the information being requested and ensure that when complying with any request, no personal information relating to individual patients or members of staff would be included; personal information is protected under the provisions of the Data Protection Act.

    Under the provisions of the Freedom of Information Act, a request for information should be responded to within 20 working days; the first day of this timescale being seen as the first working day after the request was received. If further information is required in order to comply with a FOI request, this timescale would commence once the additional information has been provided.

    In the event a request for information is not responded to, or a practice declines to provide information, the individual making the request may then ask the Information Commissioner’s office to review the request and to consider how appropriate the response was.

    You can read more about the freedom of information here

    You can obtain model templates to create an FOI publication scheme from the office of the Information Commissioner here

  • Q
    I’ve received a solicitor’s letter on behalf of a patient I saw at my old practice, claiming that I missed a fracture in her tooth which will cost several thousand pounds to rectify. Who is legally responsible?
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    19 May 2015

    Clinicians remain legally accountable for any treatment which they have provided regardless of whether or not they have left the practice where a patient was seen. Similarly, other clinicians who have been involved in the patient's care subsequently are accountable for their treatment. The dental records are fundamental in determining what treatment each dentist has provided and on what date. Only then can it be decided to what extent, if any, your own treatment for this particular patient might have contributed to the problem.

  • Q
    I'm a practice owner who is taking time off from the practice for several months. I have arranged a locum in my absence. Am I responsible for the treatment provided by the locum, and will my inability to work affect the cost of my dental membership?
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    27 August 2014

    You are not responsible for the standard of work undertaken by your locum. Every dentist is responsible for their own acts and omissions and they should be indemnified accordingly. You should therefore take a moment to ensure that your locum is suitably indemnified.

    Your entitlement to indemnity as a dental member does not cover any claim in negligence which might be made against your locum. Your locum must have their own indemnity arrangements which should cover them for all acts and omissions whilst working at your practice. Some dentists decide for whatever reason not to become members of a defence organisation but take out an individual insurance policy. If this is the case with your locum, it is important to ensure that suitable arrangements for ‘run-off cover’ will be in place if and when he or she stops paying their insurance premium.

    As a practice owner you will be required to maintain access to indemnity throughout your current Dental Protection subscription. This will provide you with protection in your role as a partner in a practice should any claims be made against the practice even when you are not working on the premises. You may also wish to maintain the indemnity arrangements provided for any dental nurses who are included within your own membership.

    One of the reasons practice owners subscribe to Dental Protection Xtra is to provide access to indemnity for their dental nurses both for clinical negligence and to represent their interests at a General Dental Council hearing. 

    Discover more about Dental Protection Xtra the practice programme that rewards a commitment to good practice and a team approach to risk management with lower subscriptions.

  • Q
    In order to extract a lower first molar it was necessary to repeat the ID block three times. The patient now has some residual numbness of the lower lip. How should I manage the situation?
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    26 May 2015

    When a patient reports a persistent loss of sensation, the clinician needs to be sympathetic to their concerns residual numbness could lead to a distrust of future dental treatment and a real fear of a similar problem arising again.

    Management usually involves counselling and medication for any pain. In addition the patient needs to be reassured and given realistic expectations of recovery. Referral to a suitable oral surgery facility for assessment is also desirable. An explanation of why they were not warned of this complication may also be required.

     The risk of damage can be reduced if the clinician can:

    • Avoid multiple blocks where possible.
    • Avoid using high concentration local anaesthetic for ID blocks (for example, use 2% Lidocaine as standard).

    Always document any unusual patient reaction during local analgesic blocks (such as sharp pain or an electrical shock-like sensation) and contact Dental Protection for advice if the patient’s loss of sensation persists and the patient has made a complaint as a result.

  • Q
    Is it reasonable to take an extra x-ray just for the record?
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    09 June 2015

    Clinicians sometimes feel that in order to protect themselves dento-legally it would be useful to have an x-ray ‘just in case’. Orthodontists sometimes take a range of radiographs mid-treatment and again post-operatively. Hygienists have been known to take x-rays simply to check they have removed all the subgingival calculus following periodontal therapy.

    It is important when deciding to take a radiograph that a risk-to-benefit assessment is made. Every radiograph presents a radiation risk and any exposure of a patient to that risk must be offset against a reasonable clinical benefit. No patient should be exposed to an additional dose of radiation (and the associated risk) as part of a course of dental treatment unless there is likely to be a benefit in terms of improved management for that patient.

  • Q
    I've been asked by a patient's new practice to supply some radiographs. Do I need written permission from the patient and what fee can I charge for the service?
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    21 April 2015
    Owing to the confidential nature of dental records, it is best practice to receive verbal or written consent from the patient and this can be documented. Radiographs can be copied and handed to the patient or posted by secure delivery. A reasonable copying charge could be applied, and it would be best practice to inform the patient of this beforehand. Digital images can be shared more readily than images taken on film and the copying charge can be reduced accordingly. Remember, care should always be taken when transmitting images digitally to ensure, for example, that emails and attachments are properly encrypted.
  • Q
    Should I offer my patient a guarantee for their treatment as suggested by Standards?
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    18 September 2014

    The Office of Fair Trade recently investigated the business of dentistry and recommended that consideration should be given to providing guarantees for dental treatment. The GDC has wisely recognised that when treating a disease process there are a number of variables at play (not least being the active participation of the patient).

    Consequently the requirement for a guarantee is not mandatory - instead the GDC advises that you should tell patients whether treatment is guaranteed, under what circumstances and for how long. You should also make clear any circumstances under which treatment is not guaranteed (for example, a lack of care on their part which leads to recurring problems or if the treatment is undertaken as a provisional solution in response to an emergency).

    Unfortunately, guarantees fundamentally alter the nature of the contract between practitioner and patient, and may leave the practitioner unexpectedly exposed from a dento-legal perspective.

    It is implicit in any contract to provide dental services that the clinician will carry out treatment with reasonable skill and care, exercising a level of skill that could reasonably be expected of someone holding himself out as possessing those skills.

    A general dental practitioner is therefore expected to exercise the skills of a reasonable general dental practitioner.

    Conversely, if the patient contracts with a specialist in a specific branch of dentistry, then the patient has a right to expect the specialist to display a higher level of care than that of a general dental practitioner. The same would obviously apply if the patient is seen by a recognised consultant in a hospital post.

    If a dentist fulfils his/her ‘duty of care’ as described above, then, this is generally sufficient to rebut any allegation of negligence - although ultimately this is for the courts to decide.

    However, if treatment is unsatisfactory or a problem arises, not due to any negligence on the dentist’s part, but simply because an alleged breach of contract on the dentist’s part, then an action brought against the dentist can still succeed, even in the absence of any clinical negligence.

    There are no hard and fast rules governing how long a particular treatment should last, and indeed it would be curious if there were, given the infinitely variable nature of the human body and its function. A guarantee, however, imposes rules and standards which then become an integral part of the contract between dentist and patient, so that a dentist might be obliged to replace, at no cost to the patient, treatment which was neither negligent, nor which had failed to meet the normal terms, implied or otherwise, of a contract to provide dental services.

    It is entirely possible, therefore, that a claim could arise which could have been successfully defended were it not for the presence of the ‘guarantee’ given by the practitioner when the treatment was provided. In such a situation, Dental Protection may not be able to provide assistance, if the practitioner had effectively given undertakings which had unilaterally, and without the knowledge of Dental Protection, extended his obligations to the patient.

    Clearly it would not be equitable in a mutual organisation such as ours, if an individual member were to give binding ’guarantees’ (with a view to promoting his/her own practice), while expecting the cost of any claim upon these guarantees to be met by other members who had given no such guarantees.

    If, on the other hand, it is clear that the patient’s claim would have succeeded whether or not the specific guarantee had been given, then clearly the member’s entitlement to assistance would merit consideration.

  • Q
    What do I do about records when I move to a new practice?
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    16 June 2015

    If you are leaving an existing business arrangement in a practice and continuing to work reasonably close to the practice you have just left (subject to any contractual terms precluding this), it is quite likely that some of the existing patients will want to come to you for their ongoing dental care. In that case it may be possible to arrange with the original practice owner to forward the records for those patients who wish to continue treatment with you.

    Working from the original set of records would be in the patient’s best interests; it avoids the need to undertake new radiographs and also allows the clinician to monitor care and to review their historical treatment more accurately.

    Situations also arise whereby an assistant dentist may leave a practice and wish to take the patient records with them. While there is no statutory basis for it, it is the view of Dental Protection that unless agreed otherwise the records are owned by the practice. However, any departing practitioner should be given reasonable access to the records if required in the future, which would allow them to respond to any concerns later raised by patients. To avoid grounds for dispute on the departure of a practitioner, it is again recommended that reference to the ownership of records be made at the outset in a written contract between the practice owner and associate dentist.

  • Q
    What does contemporaneous mean?
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    18 September 2014

    When referring to clinical records it means records made at the time the patient is treated. Records made contemporaneously will be more accurate, as there is less likelihood of something being forgotten or incorrectly recalled.

    If made at the time of treatment, there is no risk that the records can be influenced by subsequent events, such as the patient making a complaint to the receptionist after treatment has been completed. Dental Protection interprets the time of treatment as the period whilst the patient is seated in the dental chair for a consultation, as well as when specific treatment is being provided.

    Records made at the end of a session, or at the end of the day, are not considered to be contemporaneous. Working in a busy practice is not an acceptable reason for a delay in writing the records.

  • Q
    What happens to the records when a practice is sold? Who is responsible for the continuing safe storage and final disposal of the records?
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    22 October 2014
    What happens to the records when a practice is sold? Who is responsible for the continuing safe storage and final disposal of the records? If the selling dentist stays on as a part-time associate, who is responsible for the records of the new cases started – the associate or the principal?

    It is neither logical nor legal for either the vendor or the purchaser to destroy the records when the practice is sold. Apart from the obvious clinical benefits, there are two reasons why the retention of clinical records is important.

    First, patients have a statutory right to see the records made about their dental care. Whilst the patient is alive, this right devolves from the Data Protection Act. If the patient is dead, the right passes to those who may have a claim against their estate under the Access to Health Records Act.

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

    The clinical records are normally considered to be the property of the practice. It is prudent to include a clause in a contract of sale to protect the vendor, stipulating that the new owner undertakes to safeguard the records on behalf of the vendor and agrees to disclose copies to the vendor or the vendor’s indemnity provider if requested to do so in the future. Patients also have the right to be told where their clinical records are being held and who is responsible for them.

    A situation occasionally arises where the incumbent dentist retires without the intention of selling the practice as a going concern. In this case the retiring practitioner may wish to transfer the records to another local practice with the intention that it will offer ongoing care. The original practitioner would be advised to write to the patients concerned to inform them of the proposed transfer of their records and allow them the opportunity to object to this action should they wish to do so.

    However, there is no requirement to keep clinical records indefinitely which is helpful as in most cases a point will be reached where there are limitations on the available space in which to store the records. Both Data Protection legislation and guidance issued by the Department of Health stipulate that clinical records (or indeed any personal data) should not be stored for any longer than is absolutely necessary.

    Find out more about for the rules on record keeping

    Any decision with regards to the secure disposal of clinical records that have exceeded the minimum retention period would need to be agreed between the parties prior to the sale of the practice.

    Dental Protection together with Smile-on has produced an interactive CD-ROM on clinical record keeping

  • Q
    When I am looking to purchase dental practice software, what risk management functionality do I need to look for?
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    18 August 2016

    From a risk management perspective, you should look for ease of printing all relevant patient record information, ideally with a single click. Many current computer systems do not easily print out the whole record. It is also important to be able to print out historical information, such as earlier dental charts and periodontal records.

    Many systems currently only print out the most recent chart. As well as the accurate chronological reproducibility of the complete patient record you might also want to consider the ability to print out individual patient treatment plan summaries and pricing that can be offered to the patient to sign at the time of the initial examination.

    In addition the system needs to back up to a remote site to ensure data can be restored following an unexpected system failure or service interruption.

  • Q
    Where can I find out about current evidence and best practice which affect my work, premises, equipment and business?
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    17 August 2016

    The Faculty of General Dental Practice (UK) offers a comprehensive range of useful resources and guidelines pertinent to best practice in areas of clinical dentistry, the workplace and equipment.

  • Q
    Working as an associate, do I need to register as a data controller for the patient records that I handle?
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    29 July 2014

    It is difficult to give an unconditional answer as to whether an associate needs to register with the Information Commissioner. The British Dental Association advises that in its interpretation, associates are data controllers since they are responsible for their patients’ clinical records, as well as the manner in which the processing takes place.

    While the requirement for registration could potentially be countered by seeking to argue that practice records are the property of the practice owner, Dental Protection considers this interpretation could be open to challenge. If in the course of practising dentistry, you provide treatment as a performer under the NHS with no element of private practice, there could be an argument that you are processing data on behalf of the practice. However, if you are providing any element of private treatment, Dental Protection considers this interpretation may not be able to be supported.

    Additionally, if you are seeking to provide services as a self-employed practitioner rather than as an employee, you may consider registration with the Information Commissioner’s Office [http://www.ico.org.uk/] is just one feature that goes towards establishing your self-employed status for tax purposes.

    While it may be possible to successfully argue that associates do not need to register individually, on balance you might decide the benefits of incurring the small annual fee as a business expense outweigh the potential issues that could arise should you be challenged.