Existing guidance

As a dental professional you have a professional, legal and contractual responsibility to protect your patients' confidentiality. This responsibility continues even after a patient has died. 

In general, the Data Protection Act 1998 (DPA) regulates the collection, processing, use and disclosure of personal data. A breach of the DPA can result in civil or criminal proceedings. 

Additionally, in 'Standards for the Dental Team', at Standard 4.2 the General Dental Council (GDC) states that you must, 'Protect the confidentiality of patients' information and only use it for the purpose for which it was given.'

Before releasing information about a patient to anyone other than the patient you must, other than in exceptional circumstances, obtain their permission. Permission should preferably be given in writing, although oral consent is valid and should be recorded in the patient's notes. For children and adults who lack the capacity to consent, permission should be obtained from the appropriate person.

Information may be released about a patient without their permission only if disclosure falls within one of the legal exemptions - for example, a coroner's right to access a deceased patient's records - or if disclosure can be justified as being in the public interest, such as where the patient or another individual is at risk of significant harm. 

The police do not always have an automatic right to information about patients but information may be released to the police if it is in the public interest. So if a patient appears to be adversely affected by alcohol or drugs and drives their car from the surgery (for example), it might be justified to report this to the police. The DVLA has recently published new information on assessing a patient's fitness to drive which contains advice on various types of conditions that may need to be reported.

There may be occasions where it is necessary to disclose information about a patient to the appropriate social care agencies or the police without consent. This could include if you suspect the patient is a victim of abuse or if the patient appears to be suicidal and you think they are at risk from imminent harm. 

Recent changes

The subjects of female genital mutilation (FGM) and counter-terrorism have both been in the news during recent months. Although these are not common things for dental professionals to encounter during a normal working day, it is still important that you are aware of these developments as there may be occasions where it is necessary to disclose information about a patient without consent.

Counter-terrorism

Under Section 38B of the Terrorism Act 2000, there is an obligation to disclose information to the police that might be of material assistance in preventing an act of terrorism. This applies to all individuals, including dental professionals, who may justify such a disclosure as it is required by law. 

The Counter-Terrorism and Security Act 2015 Act introduced a new 'Prevent' duty in England and Wales and Scotland. Section 26 of the Act places a duty on a specified authority that it 'must in the exercise of its functions have due regard to the need to prevent people from being drawn into terrorism'. 

In the health sector, specified authorities include:

• in England, NHS Trusts or Foundation Trusts, 
• in Wales, NHS Trusts, Local Health Boards, Community Health Council or the Board of Community Health Councils.

NHS primary care organisations in England and Wales are not included yet, but there are powers to add new organisations to the list. Public Health England falls within a specified authority in the local government. 

In Scotland, specified authorities include Scottish NHS Health Boards, Special Health Boards and Health Improvement Scotland. As Scottish NHS Health Boards encompass primary care, general practice in Scotland could be subject to the Prevent duty, depending on how services are contracted. 

Part 5 of the Act, which includes section 26 and the Prevent duty, does not apply in Northern Ireland, where existing legislation makes it an offence to fail to provide information to the police in certain circumstances when a serious offence has occurred.

FGM

Since 31 October 2015, dental professionals in England and Wales have had a legal obligation to notify the police if they discover that an act of FGM appears to have been carried out on a girl under the age of 18. Following on from this, new multi-agency statutory guidance was subsequently released in April 2016. 

The new duty applies to healthcare professionals and other specified registered professionals following a recent amendment to the Female Genital Mutilation Act. Procedural information on the mandatory reporting of FGM from the Home Office sets out what information should be reported to the police. The Act states that an FGM notification will not breach an obligation of confidentiality to the patient or any other restriction on the disclosure of information. 

For all situations where disclosure of information is requested we would advise recording fully any decision to share information in your patient's notes. Be prepared to explain and justify your decisions and actions. If in doubt, call our dento-legal helpline before releasing any information.