Confidentiality

This article was published prior to our new policy on vicarious liability as of 1 June 2021. You can read the latest information on this subject here


Being a dentist gives us many privileges. Perhaps the most important is the right to ask our patients questions of a confidential nature, and to expect truthful answers. 

However this privilege also imposes upon us an ethical (and legal) obligation to treat any information so obtained as completely confidential.

Confidentiality is central to the relationship of trust between you and your patient and of course it applies to:

• members of the dental team, and


• information about the patient obtained in a professional role.

The team should ensure that they only use the information for the purposes for which it is given (e-mail addresses are useful when communicating with the patient but they should not be passed on to other parties).

This obligation forms a vital part of the code of medical ethics that has been passed down throughout the ages. In addition we have a second ethical obligation to store such information safely while it is our possession. This is not just for our own clinical benefit but also to provide our patients with access to their records if they should request it.

The right of access of the patient to their records varies from one country to another. It has evolved, and continues to evolve, in response to a greater expectation by the public that they are entitled to know what is recorded on their behalf and to have access to that information. They are usually given the right to correct information if they consider it is incorrect. This expectation, and legal right, varies between different national legislations but the trend is almost universal towards greater access and openness.

It is also important to prevent information from being accidentally revealed (eg. quoted over a phone within earshot of another person) and prevent unauthorised access to it by keeping the information securely stored at all times.

But why should our patients necessarily expect this duty of confidence? What are the practical reasons?

Patient expectation of confidentiality

The expectation of confidentiality is central to a patient's trust in their dentist and dental team. Together with the obligation to maintain confidence – this is really an 'all or nothing' concept. To put it bluntly, if patients think that we cannot keep information about them secret, then they will tell us nothing.

The patient must also be protected from the distress, and potential stigmatisation and discrimination that may be caused if their privacy in some respects is betrayed. We must therefore keep all patient information secret in order that they will trust us with other information in the future; disclosure could also cause harm to our patients.

For ethical and practical reasons therefore our duty to maintain confidentiality must be absolute, although there are a few exceptions, as described later.
The first question however that we must ask ourselves is what is confidential information and what is not?

Confidentially yours

As dentists we are told many things by our patients. Some information is clearly confidential; the contents of a medical history for example. Other information would definitely not be. The colour of a patient's hair or their height cannot be confidential. It is obvious to all who see them.

However, a lot of other information may not be quite so easy to categorise. Is a patient's address confidential? Should the time that a patient attends your surgery be confidential? Is it reasonable to tell a wife, who rings to ask if her husband is having dental treatment at your surgery that yes he is there, or should you say that the information is confidential? The information may seem innocuous but the reasons why it is being requested may not be.

Other situations are more complicated still.

Should you give information to a schoolteacher (or so they say) who phones up to check on the whereabouts of a pupil on a particular day? There could be concerns for that pupil's safety.

Should you give information to the police when they enquire whether a person they suspect of a crime was having treatment on a particular date at your surgery or not? This may be considered to be in the public interest.

Should you inform a wife that her husband is HIV positive when she does not know, and the husband specifically demands that you do not tell her? Do we have a responsibility for her health as well as observing her husband's request?

We have to decide what we need to keep secret, because it is confidential, and what is safe to disclose because it is self-evident or published elsewhere? What is confidential and what is not? A simple starting point would be to consider that any information given to you in the context of your professional relationship with a patient is bound by the ethical duty of confidentiality - even if other people could obtain this same information about the patient by other means.

From an ethical, and practical, standpoint we might usefully turn the situation around and put ourselves in the patient's position. How would we feel about our own personal information being given to others? This is hardly a precise standard but it does perhaps let us view things from another perspective. We should not therefore treat information about others any differently from the way we would like to have our personal information treated.

Although this a useful position to start from, we do not have to make a purely personal decision for each case. The law in this situation enshrines some of the ethical concept and provides many general answers as to what constitutes confidential information and what would be a breach of confidentiality if it were disclosed.
We can then apply these general principles to specific cases.

What therefore is the legal duty of confidence?

Duty of confidence

History has established the principles of confidentiality and describes three general conditions that establish a duty of confidentiality and also what constitutes a breach of that duty.

They are as follows;

• Information must have an inherent 'quality' of confidentiality.
  For example a medical history or an item of treatment carried out.


• Information must be disclosed in circumstances implying an obligation of confidence.
  If a patient gives information to us, within a dental practice ,and certainly in the treatment area, then those circumstances would almost always imply that obligation of confidence.


• Unauthorised disclosure would cause harm to the confider.
  This is invariably psychological rather that physical harm.

Hopefully this makes matters clearer. Within the dental practice, information imparted by the patient in relation to their own treatment, must be regarded as confidential. The circumstances of the health care environment would most definitely imply an obligation of confidence and unauthorised disclosure of this information would be a breach of this obligation as harm would almost certainly occur either immediately or in future.

You should also bear in mind that disclosure itself, with the potential for harm to the patient in the future, would also be sufficient to establish a breach of the duty of confidentiality. This requires an additional precaution on our part.

However, if disclosure of information that is apparently confidential, would not harm the patient, now or potentially in the future, then is that information confidential?

The dilemma of what is confidential, and what is not, obviously requires an assessment of the facts for each situation.

Apart from the legal guidelines above it is also helpful to remember that personal health information, obtained in the course of consultation and treatment, is both confidential and indivisible. No part of the information should therefore, in normal circumstances, be disclosed to any third party without the permission of the patient. We cannot selectively disclose parts of the record that we do not consider to be confidential. It is not our choice to make.

As mentioned earlier, the principle of confidentiality also extends to other members of the dental team. Whilst unfortunately we cannot prevent staff talking about patients, either inside or outside the practice, it must be stressed that as dentists we may have a vicarious liability for the actions of those staff. Good staff training in this area is therefore essential. Breaches of confidentiality by staff, after they have been made fully aware of their duties, would be a serious disciplinary matter for them, even though confidentiality ultimately remains the dentist's responsibility.

Friendships

The decision to disclose or withhold information can be an awkward one. Patients may have been coming to see us for many years and regard us as trusted friends. However, whilst we may have a friendly relationship with the patient and possibly even share the same social circle, as dentists we are bound by the ethical code of our profession, to all of our patients. They are first and foremost patients to whom we owe a duty of care and confidentiality.

This may cause some confusion, or resentment, on the part of the questioner, and awkwardness or embarrassment on our part, when we decide that we are unable to disclose seemingly innocuous information. However the answer does not have to be 'I cannot tell you' or 'I have no wish to tell you'.
An easier form of words could be, 'I'm afraid that my code of professional ethics prevents me from answering that question'.
The refusal does not therefore come from us as individuals but as part of our professional ethical obligations as dentists.

Having stressed the importance of non-disclosure of confidential information, are there any circumstances where disclosure is or may be justified.

Justified disclosure with patient permission

Information about the patient 'belongs' to the patient, not to the dentist; patient autonomy is paramount. Therefore if the patient agrees to disclosure of their clinical information to a third party, then this would be permissible. The third party could be a professional colleague or indeed any person authorised by the patient or, in the case of children and adults without the capacity to consent, by a parent or other responsible adult.

This does not mean that the records are physically the patient's own property; they belong to the clinician with access often being assured for the patient by data protection legislation. However are there circumstances where disclosure without the patient's consent or even their knowledge can be justified?

These circumstances are extremely rare for dental information/records but they do exist. In some countries a distinction is drawn between the 'primary purpose' for which the personal information about the patient was gathered and stored (eg. their dental care) and any 'secondary purpose'. The rule must be that there is either an individual justification, based on the circumstances of the situation, or that there is a legal justification or obligation. When the patient's treatment is being funded by some kind of third party (eg. The State, or a private insurance scheme or a health fund), the patient may have agreed that this third party should have access to information about their treatment.
Quite often, the patient may not realise that in seeking dental care under these arrangements they have implicitly agreed to this access.

The following situations permit disclosure without consent, by the patient or a responsible parent/other adult, but it must be stressed that it would be prudent to seek specialist advice and guidance if this type of request is made;

Where there is a Legal or Statutory requirement, this can include; 

• An infectious disease under public health legislation


• An injury or occurrence under health and safety legislation


• Public order or public safety legislation.

• When ordered to do so by a Court
  This requires an order from the court/judge, not just a request from a lawyer.
• When ordered to do so by a Coroner
• When it is justified in the wider public interest
  This would be rare and if such a request is made, or you consider it justified yourself, it would be wise to seek specialist advice.
• For the purpose of a medical research project approved by a recognised ethical committee
  In most cases the use of any patient material is dependent upon full consent to that use. However certain research projects, by their nature and methodology, require the patient not to know that they are being monitored. These factors will be carefully weighed and justified by a recognised research ethics committee. The participating dentist must be satisfied as to the validity of the research project.
• Identification of deceased patients
  Often the only method of identification of human remains will be dental records. If the dentist is certain that the release of confidential records is justified by the circumstances then this can be done in order to minimise the distress of relatives. There must however be a strong probability that the body in question is that of the patient and the records are to be used for corroborative identification. This a relatively common request made by the police.

Like any other situation, the decision will be based on the particular circumstances.
However, if the patient continues to drive, not only are they breaking the law but they may cause death or serious injury, to themselves or to others. Could we therefore justify not releasing this information? It is confidential clinical information and disclosure may harm the patient in that they cannot perhaps earn a living due to their inability to drive. However the duty to our patient may now be outweighed by our duty to society as a whole, because of the injury and harm that may occur to other members of the public. In exceptional circumstances, it may be justified to make confidential information known without consent if it is in the public interest or the patient's interest.

However any situation such as this, and especially where there is any doubt in the dentist's mind, should again be thought through carefully, and specialist advice and guidance sought where necessary.
Time taken for reflection is usually time well spent.

Conclusion

The need to maintain confidentiality of any information given to us in our professional capacity is paramount. Patient autonomy and their absolute right to confidentiality must be ensured in almost all but the most exceptional circumstances.

Patients have the ethical and legal right to expect this from us. They also have the expectation that we will retain that information safely for their access. Their trust in our maintenance of this confidence is central to the success of our professional relationship with them. We can break this confidence only with the patient's consent or if there is an overwhelming public interest in disclosure. This latter must be both prescribed by law and based upon on our honest beliefs.