The patient's permission to release their information to a third party should preferably be given in writing, although oral consent is also valid.
Regardless of how the permission was given, record the fact in the patient's notes.

Patient permission

Competent patients may give or withhold permission to disclose information about them. If you want to use patient information for any other reason, you must explain and check the patient understands:

who the information will be released to
what information you will be releasing
how it will be used
why you will be releasing it
the likely consequences of its release.

You should only release the minimum information required for the purpose and maintain the patient's anonymity if it is not necessary to identify them.

You should also make sure that third parties receiving information know it is confidential. Patients must be given the opportunity to withhold their permission and be told they can withdraw it at any time.

Patient refusal and the public interest

A patient's refusal should be respected, unless there is an overriding public interest where not releasing information would put the patient's safety or that of others at serious risk.

It is usually necessary to have consent of a patient to involve social services, but it might sometimes be necessary to share information with social services without consent - such as if the person who can give or withhold consent is a victim of abuse.

If you believe it is in the public or patient's interest to release information, you should still encourage the patient to give their permission, unless seeking permission would undermine the purpose of disclosure.

You must document the efforts you have made to obtain consent in the patient's notes. If they still refuse, contact our dento-legal helpline before releasing the information.

Children and disclosure

Although the confidentiality of Gillick-competent children should be respected, you should encourage them to involve parents or guardians in their decisions - particularly if the treatment proposed is irreversible, extensive or costly.

Adults with parental responsibility can give authority for disclosure for children under the age of consent who are not Gillick-competent. The overriding consideration, however, must be what is in the child's best interests.

It would be unusual to release information on the authority of a person with parental responsibility in relation to a competent child who objects to disclosure. In the event of such a conflict, you should be able to resolve the matter through discussion with the child and parents or others with parental responsibility.

If a school seeks confirmation that a pupil has booked or attended a dental appointment, do not give this information without the permission of the patient, or person with parental authority in the case of a non-Gillick competent child.

On the request of a Gillick-competent child or adult with appropriate parental authority, you can sign a child's appointment card to confirm their attendance. However, it's generally up to schools to confirm that a child has booked or attended a dental appointment with someone who has parental authority for the child, rather than with the dental practice.

Assessing capacity

Patients with a learning disability or mental health condition may still have capacity to consent to or refuse the release of information.

In all countries of the UK, relevant legislation states that patients must be assumed to have capacity unless it is established they lack it.

The Mental Capacity Act 2005 is a legal framework in England and Wales for decision making on behalf of adults who lack capacity to make decisions for themselves on healthcare, personal welfare and financial matters.
In Scotland, the relevant legislation is the Adults with Incapacity (Scotland) Act 2000.
In Northern Ireland, the relevant legislation is the Mental Capacity Act (Northern Ireland) 2016.

The criteria for assessing whether a patient has capacity are broadly similar in all parts of the UK; namely whether the patient is able to understand the information relevant to the decision to disclose, retain this information, weigh up the information in order to make a decision and to communicate their decision.

In the case of patients who lack capacity to authorise the release of information, decisions on disclosure of information should be made in the patient's best interests, applying the principles of the relevant legislation of each country. This includes seeking the views of family and carers.

See more in our guide to assessing mental capacity.

Releasing information after death

If you want to release a deceased patient's records, you'll need to obtain authority from an executor of the estate or the patient's personal representative.

Anyone with a claim arising out of a patient's death may also be entitled to see the patient's dental records under the relevant Access to Health Records legislation, which is broadly similar in all UK countries.

Checklist

When deciding whether to release confidential information, consider the following points.

Have you obtained permission to release information - ideally in writing - from the patient?
If you only have oral consent, have you recorded this in the patient's records?
Have you explained to the patient what information you will be releasing and why, who the information will be released to, and the likely consequences of doing so?
If it's necessary to release information about an adult without capacity, are you sure that good, contemporaneous notes have been made in the records detailing why it is necessary and in the patient's best interest, and how you reached your decision?

Helpful links

Assessing mental capacity

Consent and capacity webinar

Assessing capacity to consent in older patients

Incapacity and the law in Scotland

Releasing confidential information

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