In the first of an occasional series on legal and regulatory topics that has been specially created for the Irish Dental Association by Dental Protection, CIARAN O’ROURKE and AOIFE NALLY consider a key element of clinical care – the patient record.

Record keeping is an integral part of every dentist’s working practice. This is reflected in the Dental Council’s ‘Guide to Professional Behaviour and Ethical Conduct’, which makes clear that dentists “must keep accurate and up-to-date records”for all patients.

Records help to protect the interests of both patients and dentists. Good records provide an objective picture of the care provided and help to improve standards of care. In the event of a complaint, the records can assume a very significant role indeed and may be subject to intense scrutiny by a third party. In our experience, many clinical negligence claims are rendered indefensible simply because of problems with the records; they can sometimes be inaccurate, illegible, too brief or even non-existent. One of the most frequent pieces of advice we give to dentists is that the best defence to any claim is a set of well-written notes.

Writing good records
When writing records, dentists need to take care with both content and presentation. When it comes to content, this should include the history, examination and investigations, as well as what discussions took place with the patient. Importantly, the consent process should be recorded, and discussions about the treatment, the options, risks and costs, as well as how long the treatment is likely to last, should also be recorded. A copy of any referral letter should be kept, as well as a copy of the estimated cost, treatment plan, and full details of the treatment carried out. The records should also contain the reason why a radiograph was taken. The notes should include sufficient detail for another dentist to seamlessly take over care of the patient.

After content, dentists need to consider the presentation of their notes. The notes should be legible, and the date, time and author of each entry in the chart should be clearly recorded. The notes should be objective and, where opinions are expressed, they should be based on the facts recorded within the record. Records should be clear, contemporaneous and tamper proof. Abbreviations, if used, must be unambiguous and universally understood.

There will be times when records will require amendment. The correct method of amending a note is to put a line through the original wording such that the deleted record still remains legible and insert the new entry, as well as the reason for the amendment, and the date and time on which it was made.

Access to records under data protection and freedom of information legislation
Both the Data Protection Acts and the Freedom of Information (FOI) Acts provide patients with the legal right to be given a copy of their dental records.

The Data Protection Acts apply to information held by dentists in both a public and a private capacity, i.e., patients can apply under the Data Protection Acts for a copy of their records whether that patient is a private or a public GMS patient.

The FOI Acts apply only to records held by a dentist as an agent of a public body, i.e., records of Dental Treatment Services Scheme (DTSS) patients. While dental records of patients covered by the DTSS scheme remain under the physical control of the dentist, the dentist is not the decision maker for the purpose of deciding whether access should be granted. The records must be furnished to the HSE and the dentist should advise if there is any reason not to furnish the records, noting that the decision rests with the HSE.

In terms of the practicalities, it is important to note that although a dentist may ask the patient to pay a fee for a copy of the records, this charge cannot exceed €6.35. This is obviously not a significant amount of money, particularly in circumstances where there is a large volume of material to be copied. This highlights the fact that the data protection regime is designed to facilitate access to records and minimise restrictions. Once a request has been made and any fee charged paid, the records should be provided within 40 days. The legislation does not give patients the right to be furnished with the original records; patients are only entitled to a copy of their records. Copying radiographs can be expensive so under the Act patients are only entitled to paper photocopies or radiographic images of their radiographs.

With all rules there are exceptions, and the right of access is not an absolute one. Data protection legislation sets out exceptions to the right of access, including information subject to legal professional privilege and where the request relates to the records of a third party.

It would be our advice to a dentist in receipt of a data protection or FOI request for a patient’s records that the following steps should be followed:

A. Ensure that the data protection or FOI request is in writing and place the request on the patient’s file.
B. Ascertain who is the correct decision maker in relation to the release of records, bearing in mind whether the patient is a private patient or attending the dentist under the DTSS.
C. Comprise the procedural requirements. In this regard, dentists should bear in mind the maximum fees payable and the time frame allowed for responding to requests.
D. Consider any relevant exemptions that might apply.
E. Respond to the patient in writing. If access is being refused, the reasons for refusal should be set out in writing and the patient should be informed of their right of appeal to the Data Protection Commissioner/Information Commissioner.
F. If necessary, seek advice from one of DPL’s dento-legal advisers.

Storage and security of records
Data protection legislation requires that appropriate security measures be put in place, which take account of the harm that would result from unauthorised access to the information. Given the highly sensitive nature of dental records, it is important to be very conscious of security. From a practical point of view, offices should be locked and alarmed when not in use. If dental records are saved to portable devices such as a laptop, significant precautions should be taken, including encryption. Records should be disposed of securely.

Retention of records
There is no legislative provision providing for the minimum periods for which records should be retained. The Data Protection Acts require that personal data should only be held for as long a period of time as the purpose for which it was originally collected.

The Dental Council’s ‘Code of Practice on Professional Behaviour and Ethical Conduct’ notes that in the case of adults, records should be kept for eight years after the last treatment. In the case of children and young adults, the Dental Council recommends that records should be kept until the patient’s 25th birthday, or their 26th birthday if the young person was 17 when they finished treatment.

From a legal point of view, a court action for negligence should be brought within two years of the incident; however, this general rule is subject to a number of exceptions, including cases involving minors and persons of unsound mind. In addition, a patient may be able to circumvent the time limit on the “date of knowledge” principles, i.e., that he or she could not have been aware that he or she had a case until some time after the incident.

Transfer of records
Before a patient transfers to a new practice, dentists should facilitate this, if requested to do so, by transferring a copy of the patient’s records to the new dentist with the patient’s written consent.

It is hopefully clear from this article that records serve as much more than an aide memoire for dentists. It cannot be overstressed that having a good record-keeping system in place is a fundamental part of dental practice.

Ciaran O’Rorke is a Partner, and Aoife Nally is an Associate with Hayes Solicitors, Dublin, one of Dental Protection’s panel of lawyers supporting members working in Ireland.