Permission should preferably be given in writing, although oral consent is also valid and should be recorded in the patient's notes.
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:
- to whom the information will be released
- what information you will be releasing
- how it will be used
- why you will be releasing it
- the likely consequences of you releasing the information.
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 may 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 advisory 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 under the provisions of the Children Act 1989 and Adoption and Children Act 2002 can give authority for disclosure for children under 16 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, information should not be given 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 may sign a child's appointment card to confirm their attendance. However, in general it is 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 the dental practice.
Patients with a learning disability or mental disorder, even if detained under the Mental Health Act 1983, may still have capacity to consent to or refuse the release of information.
The Mental Capacity Act 2005 (MCA) states that everyone must be assumed to have capacity unless it is established that they lack it.
In assessing whether the patient has capacity, the following criteria apply:
- The patient is able to understand information relevant to the decision to disclose. Relevant information should be presented to the person in a way that is appropriate to their circumstances.
- The patient must be able to retain this information for long enough to make the decision.
- The patient must be able to use, or weigh up, the information as part of the process of making the decision.
- The patient must be able to communicate their decision.
In the case of patients aged 16 or over 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 in the MCA. This includes seeking the views of family and carers.
Releasing information after death
If you wish to release a deceased patient's records, you will need to obtain authority from an executor of the estate of 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 Access to Health Records Act 1990.
When deciding whether or not to release confidential information, consider the following:
- Have you obtained permission to release information, ideally in writing, from the patient? If oral consent is obtained, 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?
- If it is 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?
This guidance was correct at publication 19/01/2018. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.