Clinical record keeping is unfortunately one of those dreaded risk management topics. Guild Insurance understands that it isn’t the most interesting topic for health practitioners to spend time thinking and talking about. However, it’s incredibly important, and Guild’s experience suggests many health practitioners would benefit from learning more about good record keeping.

Clinical records and insurance claims

Clinical records can impact insurance claims in two ways:

1. Poor records which lack detail can lead to incorrect clinical decision making and poor clinical outcomes for the patient and therefore patient complaints.
2. Poor records may make a complaint, and therefore an insurance claim, difficult to defend due to the lack of evidence.

Why keep detailed clinical records?

1. Continuity of patient care

It’s not uncommon to hear health practitioners claim they can remember the details of patient consultations. However at Guild, we regularly see examples where practitioners haven’t remembered key aspects of prior consultations and treatment, and this has led to a poor outcome for the patient. It’s therefore imperative to have this information recorded to ensure certainty as to how and why you’ve treated a patient in the past.

It’s also important to be sure you refer to the information within the patient’s record. Patients can suffer harm when information, such as allergy details, is overlooked or forgotten about and therefore the patient isn’t treated accordingly.

2. Regulatory requirement

All Australian Health Practitioner Regulation Agency (Ahpra) regulated practitioners need to be well aware of their many regulatory requirements; good record keeping is one of these. Each profession’s Code of Conduct contains information about a practitioner’s obligations and requirements regarding record keeping. Several Ahpra National Boards have also created a separate document on guidelines for clinical records which further explains what’s required.

It’s the responsibility of every registered health professional to make themselves aware of and comply with the various codes, guidelines and policies relevant to them. Not knowing is not an excuse for not complying.

3. Defence of a complaint

If there’s any allegation of wrong doing made against a practitioner, their records are going to be incredibly important. Those records provide evidence of what took place and why. Without this, the practitioner will be relying on their memory as a defence. Information recorded at the time of the consultation is going to hold greater weight as a reliable defence than a practitioner’s memory months after an event. As the saying goes ‘Good records = good defence, poor records = poor defence and no records = no defence’.

4. Funding audit

Funding providers, such as private health insurers, regularly review the rebates they pay for healthcare and can conduct audits to be sure health practitioners are billing appropriately.

It’s not uncommon for a health practitioner to receive a request from a funding provider to produce clinical records to justify their billing practices. This is another example of when a practitioner needs documented evidence of what they’ve done and why. If the reasons behind treatment, and therefore billing, isn’t clear, funding providers can demand repayment.

Record keeping requirements

What to record?

The key question many health practitioners ask when it comes to clinical record keeping is ‘how much detail do I need to record?’. Practitioners should refer to their Code of Conduct, as well as the guidelines on record keeping if one exists, to better understand the detail required in a clinical record.

Exactly what to include can vary according to the type of health profession as well as the specifics of the patient’s condition and treatment. However, generally records should include, but aren’t limited to:

• Patient identifying details and contact information as well as health history
• Name of the consulting practitioner and the date of the consultation
• Reason for the patient presentation
• All examinations and investigations conducted and their results, even if there is no abnormal finding
• Diagnosis and treatment plan
• Consent to treatment
• Treatment provided and the patient’s response
• Any items supplied, or instructions given, to the patient
• Referrals to other health professionals

In some cases, it’s worth noting what didn’t occur as well as what did. For example, if a patient has refused to consent to what would be considered the most ideal or obvious treatment option, the record should reflect that it was discussed and declined. If it’s simply left out of the record, it would appear that it wasn’t discussed as a treatment option.

When a practitioner is unsure if they have included enough detail, they should ask themself whether or not another practitioner could read the record and understand the full picture of what took place and why, without the treating practitioner filling in any gaps. If the full story isn’t there, there isn’t enough detail.

Professional and objective

Clinical records need to always be professional and objective. Negative comments about the patient can be included, however, this must be professional and only when this is relevant to the treatment being provided. This may occur in situations where the patient isn’t complying with instructions and this is detrimental to their health. However, it’s important to remember that clinical records can be accessed and read by a number of people, including the patient and your regulator, so always be mindful of the language used. The language used should match the professional language a health practitioner would use when speaking to the patient during a consultation.

Using Artificial Intelligence

As with many other parts of our lives, the use of artificial intelligence (AI) is creeping into record keeping practices more and more all the time. And while there are numerous potential benefits of using AI, there are also risks that health professionals need to understand and manage. The first step in this requires practitioners thoroughly research any AI tool they intend to use and be sure they understand how they work, particularly in relation to the storage and use of information input into them.

The task of creating appropriate clinical records can’t be left to AI; practitioners must be sure they review any AI‑generated information to be sure it’s detailed and accurate. And when doing this they must keep in mind that AI isn’t perfect; it will at times leave out important information and even make things up. It’s also important to be sure patients are aware of the use of AI. When patient data is being input into an AI tool or if consultations are being recorded, informed consent is a must.

For further information about the use of AI in healthcare, refer to guidance available from Ahpra that can be found at www.ahpra.gov.au/Resources/Artificial-Intelligence-in-healthcare.

Disposing of records

There’s no requirement to dispose of clinical records, and from a risk mitigation perspective, it’s advisable to keep them for as long as you can.

In New South Wales (NSW), Victoria and the Australian Capital Territory (ACT), it’s required that records for an adult patient are kept for 7 years from the last date of entry. For a patient who was under 18 years of age when the last record was made, those records need to be kept until that patient turns 25 years old. Other states and territories don’t have specific legislation regarding time frames for keeping health records. However, it’s recommended that practitioners in those states and territories adhere to the requirements for NSW, Victoria and ACT.

There’s varying legislation across the different states and territories regarding processes to adhere to when disposing of records. It’s recommended practitioners make themselves familiar with what’s required, if intending to dispose of records, and seek independent legal advice if needed or speak to your professional association.

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It’s well recognised that patients don’t necessarily complain simply based on their clinical outcome. Most dentists will have heard of or seen situations where a patient has experienced an outcome which wasn’t ideal yet wasn’t particularly poor, however the patient has been quite annoyed with the outcome and has lodged a complaint.  On the other hand, there are many cases of patients who have experienced quite poor outcomes yet have chosen to not complain.

There are many reasons why the above may occur, some which are easier to identify than others. All patients are different and human behaviour isn’t always predictable.  Good communication and the relationship between the patient and dentist will greatly influence the likelihood of a complaint.  One other very important factor is the expectations of patients.

Patient expectations

Many patients will go into dental appointments with some level of expectation regarding their likely outcome. They may have a very clear and detailed outcome in mind or it may be more broad and open.  Most importantly, some of these expectations will be realistic, however others won’t be.

Unrealistic patient expectations pose very real challenges for dentists. If a patient undergoes treatment which they have unrealistic expectations about, it’s unlikely those expectations are going to be met simply due to them being unrealistic.  If a patient’s expectations haven’t been met, it’s likely the patient is going to be unhappy or dissatisfied with the treatment.  Those unhappy and dissatisfied patients are the ones more likely to complain about the treatment and expect further corrective treatment or compensation.  It’s therefore vital that dentists do all they can to help the patient fully understand treatment and the likely and possible treatment outcomes before treatment begins.

Creating realistic expectations

A key step in making sure a patient has realistic outcomes regarding treatment is to have an open and honest conversation with them. This will not only provide the patient with further information about their treatment, but will also give the dentist a clearer understanding of the patient’s expectations.  A dentist’s clinical skills are vital to what they do, however effective communication goes a long way in providing positive outcomes.

To assist a patient to have realistic expectations, dentists must ensure they explain the treatment and outcomes using simple, clear terms. Technical clinical language should be avoided as many patients won’t understand this.  Dentists should also consider how they tailor their language and the information for each individual patient.  For example, a person with language or literacy challenges may need information presented in a more detailed manner than other patients.  Dentists should also consider using diagrams, pictures or models to assist with understanding where appropriate.

When discussing treatment with a patient, it’s important that dentists don’t make assumptions about what the patient will or won’t understand. It’s easy for dentists to become so familiar with what they do and know that they sometimes forget how foreign that knowledge can be to other people.  Patients will have varying degrees of knowledge and experience regarding dental treatment.  Therefore, what they understand about their treatment will also vary.

When a patient attends a dental clinic and requests a particular form of treatment, this is an occasion when a dentist should be especially mindful of the patient’s expected outcome. When a patient has requested a form of treatment, the patient has clearly formed a decision around what treatment they need to get the outcome they desire.  What they’re requesting and expecting may be reasonable and realistic, however in some cases it may not be.  When presented with this situation, dentists need to be sure they don’t rush into providing the patient with the requested treatment.  As with all patients, there needs to be a thorough assessment and diagnosis process.  Then the patient is to be provided with their treatment options, as well as the risks and benefits of those options.  There may be treatment options which are more suitable for that patient which the patient isn’t aware of.  The patient also needs to be made aware of the likely treatment outcomes for each of those treatment options.

The dentist needs to be sure the patient has all required information before consenting to treatment and this includes understanding the likely outcomes. A patient requesting particular treatment doesn’t alter this required process.  And dentists need to remember that they’re always responsible for the treatment they’ve provided, regardless of whether it was requested by a patient.

In summary…

Dentists should be doing all they realistically can to improve the outcomes for their patients and reduce the likelihood of poor outcomes and complaints. An important step in this process is making sure patients have realistic expectations regarding treatment outcomes.  Dentists have a very important role in using their clinical knowledge in conjunction with practical terminology to assist patients to develop realistic expectations.  Dentists need to remember this is of great benefit to both themselves and their patients.

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All health practitioners would be well aware of their requirements to obtain informed consent from their patients before assessment or treatment takes place.  However, Guild Insurance’s vast experience in managing claims made against health practitioners has highlighted that many practitioners don’t meet all their informed consent requirements.

What is informed consent?

There is an explanation about informed consent in the Code of Conduct for each of the professions regulated by AHPRA.  In this document, informed consent is defined as ‘a person’s voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved’.  This statement highlights the difference between consent and informed consent.  If a patient hasn’t been made aware of the benefits and risks, their consent isn’t informed.

Informed consent isn’t just required for treatment. Depending on the nature of the healthcare being provided, informed consent should also be obtained for assessment. 

Informed consent and insurance claims

Informed consent can feature in insurance claims against practitioners in a couple of ways.

It’s not uncommon when a patient is unhappy following treatment for them to allege they weren’t made aware of the risks when they consented to treatment.  Quite often they will allege the treatment was negligent and has resulted in harm or suffering.  They then add that had they been informed of the possible risks, they wouldn’t have consented.

In other cases, patients may not make any allegation about consent, their complaint might solely focus on the clinical outcome, yet when their claim is being managed it’s found that they didn’t give their informed consent prior to treatment being provided.  When this occurs, it makes it challenging for Guild to prove that the practitioner has treated appropriately and met their requirements.

The informed consent conversation

Informed consent requires a conversation between the treating practitioner and the patient.  This conversation needs to occur prior to assessment and treatment. 

The conversation must:

• detail the recommended assessment and treatment as well as alternate treatment options
• include the expected benefits of that treatment
• provide information about the risks of the treatment
• allow time for the patient to ask questions
• be held in language which can be understood by the patient which means practitioners should avoid technical clinical language.
• take place in a private area where the patient will feel comfortable being open and honest about their health situation.
• be tailored to that individual patient and their unique clinical needs

Recording informed consent

It’s imperative that practitioners make a note in the clinical record regarding the patient providing their informed consent.  This needs to be more than ‘IC given’.  The record needs to show what treatment options and risks were discussed as well as any questions asked by the patient.  The record should also show what the patient consented to as well as what they didn’t consent to where relevant.

The informed consent form

One area which leads to some confusion about informed consent is how to use an informed consent form.  Having a patient sign a form is seen as a quick and simplified way of having a patient provide their informed consent and keeping a record of that.  However, they are unfortunately too often used inappropriately. 

Signed forms aren’t a requirement.  While recording consent is required, this doesn’t need to be done using a form.  Notes in the clinical record are sufficient.  However, signed forms do provide additional evidence if there is an allegation that informed consent wasn’t given.

Forms can’t be used to replace the informed consent conversation.  A patient can not read a form and gain the same level of understanding as they would from a conversation with the practitioner.  Nor can they ask questions of the form. 

A form should only be signed after the conversation with the practitioner has been had and the patient understands what it is they’re consenting to.  Patients are occasionally asked to sign consent forms at reception before they’ve seen the practitioner.  As there has been no assessment or discussion about treatment at this stage, this can’t be considered informed consent as the patient hasn’t been informed.

Some practices combine new patient forms with the consent form.  This isn’t ideal as the two forms serve different purposes.  Also, having them on the one form encourages patients to sign the consent form at reception before they’ve seen the practitioner.  Therefore, they should be divided into two separate forms.

Informed consent is not a one-off event

Practitioners regularly ask how often their patients need to give informed consent.  There is no set time frame for when informed consent conversations or signed forms need to be repeated.  The requirement is that when a patient is receiving any assessment or treatment, they need to have given their informed consent to this.  Therefore, informed consent should be an ongoing process; it’s a continual conversation with patients during consultations.  And when there is any change in the treatment being provided, or if the patient has returned following a period of absence, informed consent needs to be revisited.  A general ‘consent to all treatment’ for the life of the therapeutic relationship is not appropriate.

Informed financial consent

As well as consenting to assessment and treatment, patients should also give their informed financial consent.  This means they need to be provided with information about the expected cost of treatment before this treatment commences.

In summary…

There is no one right way to undertake an informed consent conversation and process.  Practitioners must adapt what’s discussed for the patient they’re treating and that patient’s unique circumstances.  However, what must occur in all cases is that the patient is informed of and understands the proposed treatment, alternate treatment options and the risks involved.  Only with this information can they give their informed consent.  The practitioner must also be sure to make a record of this informed consent discussion in the clinical record.

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