By Christine Groenewald, Case Manager, Medical Protection
Dr O admitted a minor patient who was very ill and presented with possible child abuse. Dr O involved a social worker and criminal proceedings were instigated against the patient’s mother and partner. Two weeks later, Dr O received a verbal request for records from the mother of the minor patient.
Dr O contacted Medical Protection for assistance and explained that there was a domestic violence case open against the mother of the child, and that the child had been temporarily removed from the care of the mother, pending the investigation. Dr O provided us with a copy of the temporary court order that removed the child from the care of the mother in terms of Section 151(2) and 46(1)(a)(iii) of the Children’s Act 38 of 2005.
Dr O required advice as to whether she could disclose copies of her patient’s records to the mother of the minor child in these circumstances.
How Medical Protection assisted
Medical Protection appointed attorneys to review the temporary court order together with the documentation relating to the divorce between the parents, and they were able to provide Dr O with the necessary advice.
The attorneys advised that the court order removed the child from the “care” of the mother – “care” being the responsibility of the parent to live with and provide for the child’s needs. The court order did not deprive the mother of her right and responsibility of “guardianship”– “guardianship” being defined as the responsibility of a parent to make decisions or consent on behalf of the minor child, and to represent and assist the minor child in administrative matters. Therefore, the mother was still a guardian of the child even though the child had been removed from her care.
They further advised Dr O to request that the mother place her request for the records in writing and to provide consent for the release of the records in writing. They also advised Dr O to inform the social worker and the child’s father of the mother’s request for the records and to inform them that she was obliged to disclose the records to the mother.
Finally, they advised Dr O to also inform the mother that she was aware of the current investigation and that she had informed the father and social worker of the mother’s request for the records. That way, Dr O had discharged her obligations to her patient, the social worker, the mother and the father.
Once the advice had been followed and the necessary requirements were complied with, the attorneys assisted Dr O to disclose copies of her patient’s records to the patient’s mother and all involved parties were informed accordingly.
The issue of child abuse was investigated; however, Dr O was not required to testify at court and therefore she indicated that she no longer required our assistance.
• It is important to note that even though it is a child’s mother requesting the child’s records, the circumstances under which the request is brought and the relevant factors, especially a document such as a court order, should be carefully considered.
• Removal of a parent’s right and responsibility of “care” over a child does not mean removal of their right and responsibility to “guardianship”.
• In complicated cases such as these, it is important to keep all involved parties who have rights in respect of the patient informed of important developments.
• Dr O’s first obligation remained to her patient, being the minor child.
• Ensure that any request for records is made in writing, along with the necessary written consent, before disclosing any records.
• Finally, it is important to note that Dr O discharged her legal obligation in terms of Section 110 of the Children’s Act, which requires her to report any reasonable suspicion of child abuse or neglect.