Who develops the Standard for dental records?
The Australian Health Practitioner Regulatory Agency (Ahpra) established the shared Code of Conduct in 2020 that sets out guiding principles which must be applied by practitioners. It describes The Australian Standard for health records in Section 8.3. The Code of Conduct is supported by the following key explanatory documents produced by the Dental Board of Australia (DBA) to help dentist practitioners comply with their dental record obligations under the Code of Conduct:
- Dental Board of Australia: Factsheet – Maintaining your patient health records
- Dental Board of Australia: Self-reflective tool – Good record keeping
Meeting the Standard
The Advisory Services Dental Records Guide is a comprehensive suite of information developed to help you assess your records and includes an audit checklist. This information may be obtained by contacting advisory@adansw.com.au.
What constitutes ‘Dental Records’?
Dental clinical records (‘records’) contain health and other information about patients who have consulted with a dental practitioner. A patient’s complete clinical file includes information that is retained by the practice in various ways such as:
- paper (e.g. clinical notes, letters of referral, reports)
- electronic format (scanned in or computer-held copies of information)
- visual material (radiographs, scans, photographs, diagnostic models, videos)
- audio format
Typical components of a patient’s dental clinical record include some or all of the following:
- Clinical notes made by the practitioner
- Notes made by other staff
- Completed medical history questionnaires
- Consent documents
- All correspondence and reports to, or about, the patient
- All correspondence from the patient or others relating to the patient
- All referrals to, and reports from, other practitioners
- Radiographs, tracings, measurements
- Diagnostic and other casts
- Special test findings
- Photographs
- Records of financial transactions.
Can hard copy data be retained in an electronic record?
Hard copy documents such as medical history/acquaintance forms and diagnostic data such as radiographs and study models are commonly scanned in to an electronic patient record. The NSW Health standard titled Health Care Records – Documentation and Management requires each individual page/screen of patient data to include identifying details of the patient – such as the patient’s name and date of birth (DOB). For data such as radiographic images, dental models, tracings etc. the date of capture should also be recorded somewhere on the image itself. All new material added to the record should be signed by the author. For clinical notes, this includes the initials/identifier of the treating clinician. For patient-generated documents (such as medical history/acquaintance information, consent documents, acceptance of treatment plans) this will include the patient’s signature and printed name and would include a designation (relationship to patient) if the person signing the form is not the patient themsleves. In a computerised system, this may include an electronic signature.
How long should Records be retained?
Dental records fall within the definition of “health information” under Section 6 of the NSW Health Records and Privacy Information Act 2002. Pursuant to Section 25 of the Act. You have a legal obligation to retain records for the periods set out below:
“(a) in the case of health information collected while the individual was an adult – for 7 years from the last occasion on which a health service was provided to the individual by the health service provider,
(b) in the case of health information collected while the individual was under the age of 18 years – until the individual has attained the age of 25 years.”
What are the regulations that govern the disposal of dental records?
The Health Privacy Principle (HPP) number 5 provides that you must ensure that health information “is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure and against all other misuse.”
Patient health information must be stored securely throughout the legally required periods for retention, thereafter the health record can be destroyed in a secure manner. This will involve a review of the records to determine the date the records can lawfully be destroyed. It also requires that records being disposed of are destroyed in a secure manner. There are commercial operators who provide secure document destruction services.
How do you decide if the records need to be retained or disposed of?
When deciding whether to retain or destroy information past the periods noted above, a dental practitioner needs to carefully consider whether they would be best served by simply retaining the original health records. In NSW, under the Limitation Act 1969, there is a limitation period for the commencement of proceedings of either:
- 3 years after the cause of action was ‘discoverable’ by the patient (this could be many years after the treatment is provided); or
- 12 years from the date of the incident. Courts, however, have discretion to extend this time period if they consider it ‘just and reasonable’ to do so.
Ultimately, such records may be vital evidence in subsequent court proceedings and represent your best defence regarding the treatment and advice provided to the patient. Where logistical constraints prevent the retention of physical records such as study models, paper records and radiographic images beyond the prescribed minimum time frame, a practitioner would not be criticised for having destroyed those records. However, an opportunity for defence may have been lost. It is therefore up to individual practitioners to decide whether only complying with the minimum provisions for record retention is in their best interests, or whether the records should be retained for an extended period. The indefinite retention of computer records should not be problematic.
With respect to OPGs: if your practice took the OPG, then the above rules apply.
If the patient had the OPG taken elsewhere, then the practice does not own the OPG. If a copy is provided to the practice it then forms part of the record. If a copy is not provided to the practice, then at a minimum as part of the records, the practice would retain a copy of the radiologist’s report and rely upon the dentist’s own comments regarding the findings noted after viewing the film which would be entered/retained in the patient’s file.
Where the OPG is stored digitally, there is no need to also store a hard copy film print.
A Patient’s Right to Dental Records
What part of the law regulates this?
The Privacy Act 1988(Cth) and the Health Records and Information Privacy Act 2002 (NSW)
Who owns Dental Records?
Ownership of dental records does not ordinarily rest with the patient (there are some exceptions to this general rule, the most common of which is the above example of radiology performed elsewhere which is delivered to a practice for interpretation/safekeeping). It follows that a patient cannot present to a practice demanding to be given their records if they do not own them. However, the law does provide a patient with a right to access dental records/ their health information (see below).
Absolute ownership of records will depend on the circumstances or the environment in which the records were generated. For employee and contractor dentists, for example, it will depend upon the arrangements which exist in your place of work. If you receive a request for records from a patient you have seen and you are not the practice owner, you will need to talk with your employer to ensure your response to the records request is appropriate to practice policy.
Responding to patient requests for Records
What are your legal obligations? Here is a link to a simple guide:
If a patient requests access to their dental records, you should respond promptly. Under the NSW legislation, you must respond to a request for access within 45 days after receiving the request. The guidance from the Commonwealth Privacy Commissioner is 30 days. We advise that practitioners adhere to the lesser timeframe.
Patients’ rights to access records (i.e. be provided with a copy of their clinical records) is not negated or cancelled by any outstanding debt owed to the practitioner. Patients have the right to view or obtain a copy of the their records and to discuss any treatment provided/recommended.
Patients who seek a copy of their clinical record should put their request in writing so that there is no confusion regarding what it is they are expecting to receive. The request should specify exactly what records are required (e.g. radiographs alone or complete dental records) and the form in which the patient wishes to have the information provided. Patients can request a copy of their records be provided to them or a nominated person (e.g. another practitioner or a solicitor).
Privacy legislation allows for an appropriate charge to be made for providing the patient with a copy of their dental records. The guidelines, however state that ‘these charges should not be excessive and should not discourage an individual from accessing their records.’
Privacy legislation does not require a practitioner to provide any type of transcript of the records, or an explanatory report. It only mandates that copies of the records be provided. Do not provide original records – if a request for original records is received, please contact Advisory Services before responding.
The form in which the copy of records is to be provided also requires consideration. Email has become the default, but is generally not regarded as secure. This doesn’t mean that the records cannot be transmitted by email, but it is good practice to ask the patient whether they are comfortable with email, or would prefer a more secure form of transmission. If any of the material could be considered sensitive (e.g. HIV/HBV/STD or other blood borne virus status, psychiatric history, potentially embarrassing correspondence), the patient should be consulted and a cautious approach taken.
There are rare circumstances where it is appropriate to withhold health information. Always seek advice from Advisory Services if you are unsure how to respond to a request for records. Sometimes a request for copies of records may indicate a dissatisfied patient. If you perceive the slightest possibility that the patient may be considering making a complaint or claim, you should contact Advisory Services for assistance.
What if you don’t respond to the request to access records?
You need to be very careful when responding to requests for access to dental records. If you do not manage it appropriately, it could result in the patient making a complaint against you to the Commonwealth Privacy Commissioner or another complaint body. Many health practitioners have had adverse findings made against them by the Privacy Commissioner. You also expose yourself to an order to pay compensation to a patient for not responding to a request for access in accordance with the law.
Disclaimer: This is one of a series of Advisory Services information sheets created by ADA NSW. They are intended as general guides that highlight key pieces of information frequently requested. They do not set out to provide comprehensive information about a topic and they are not legal advice. Please be mindful that information provided in these resources can change after the publication date.
