Handling disclosure requests concerning children and young people can be a complex and emotive issue. Kate Cowan, case manager at Medical Protection, looks at the issue in more detail
You receive a request for the medical records of a five-year-old child from the child’s father. The child lives with the mother and you are aware that the father has regular contact. You are also aware that there are ongoing divorce proceedings.
Does the father have a right of access to the records?
Disclosing the records
Guidance from the Information Commissioner’s Office states that parents can make subject access requests on behalf of children who are too young to make their own request. Parents who have parental responsibility are therefore entitled to request access to their child’s medical records, where the young person is unable to give their consent.
The GMC also provides guidance on this in 0-18 years: guidance for all doctors. Paragraph 54 states:
“You should let parents access their child’s medical records if the child or young person consents, or lacks capacity, and it does not go against the child’s best interests. If the records contain information given by the child or young person in confidence you should not normally disclose the information without their consent.”
Does the parent have parental responsibility?
Birth mothers, biological fathers who are married to the birth mother or unmarried fathers named on the birth certificate (after 1/12/2003) will automatically have parental responsibility for the child.
If you are unsure if the parent has parental responsibility or are aware that parental responsibility may have been revoked, then you can request documents confirming that they retain parental responsibility. The documents confirming parental responsibility are the birth certificate, a marriage certificate, a court document stating parental responsibility or a letter from the parent’s solicitor confirming they retain parental responsibility.
What if the parents are divorced or separated?
When considering disclosing a child’s medical records to a divorced or separated parent it is important to remember that divorce or separation does not affect parental responsibility. In 0-18 years: guidance for all doctors, paragraph 55, the GMC states:
“Divorce or separation does not affect parental responsibility and you should allow both parents reasonable access to their children's health records.”
It is important to be mindful that in some cases divorced or separated parents may have had parental responsibility revoked, therefore it is important before disclosing medical records that you ensure you are satisfied that they have parental responsibility for the child.
If a parent has parental responsibility and you consider that disclosure is in the child’s best interests, the other parent cannot veto your disclosure decision.
How old is the child and are they competent to have a view on the request?
If a child has the capacity to consent to their medical records being shared with their parents, you should take this into consideration.
A young person aged 12 or above is generally considered mature enough to hold a view on whether or not their parent can have information in relation to their health or consultations. However, each case must be judged on its own merits and the best interests of the child should be at the heart of any decisions made.
Paragraph 25 of 0-18 years: guidance for all doctors states:
“The capacity to consent depends more on young people’s ability to understand and weigh up options than on age. When assessing a young person’s capacity to consent, you should bear in mind that:
- at 16 a young person can be presumed to have the capacity to consent
- a young person under 16 may have the capacity to consent, depending on their maturity and ability to understand what is involved.”’
Is the disclosure in the best interests of the child?
There is no precise definition of best interests; however, there is helpful advice in 0 to 18 years: guidance for all doctors, which sets out the factors to be considered in assessing best interests:
“An assessment of best interests will include what is clinically indicated in a particular case. You should also consider:
- the views of the child or young person, so far as they can express them, including any previously expressed preferences
- the views of parents
- the views of others close to the child or young person
- the cultural, religious or other beliefs and values of the child or parents
- the views of other healthcare professionals involved in providing care to the child or young person, and of any other professionals who have an interest in their welfare
- which choice, if there is more than one, will least restrict the child or young person’s future options.
What should you consider before disclosing the medical records?
When considering any disclosure, you should be mindful of the need to redact from the medical record any third party identifiable information and any content that you feel may cause serious physical or mental harm. The threshold for serious harm is poorly described, though it is agreed that the bar is set quite high. A senior clinician should review the medical record and be satisfied that any part or parts of the record that may have potential to cause significant harm are redacted. If this is the case, you should maintain records detailing your justification of this.
When you have made the decision whether to disclose the medical records, you should ensure that you carefully document your justification for disclosure/non-disclosure in the child’s medical records. If there was ever any criticism in the future for the disclosure or non-disclosure, you can then justify this by explaining what you considered at the time.
How do I deal with parents who have difficulties communicating?
A common query Medical Protection receives is when a divorced or separated parent asks a GP practice to update them when their child attends an appointment at the practice, and for copies of any correspondence the practice receives regarding their child. In this situation the best approach is to explain that as a GP practice, the best interests of the child will always be the priority and that you cannot be involved in disputes between parents; you should also emphasise that it would be in the best interests of the child if they could communicate with each other regarding their child’s health, if this is possible. It will be helpful to explain that it would not be possible or practical to update both parents whenever the child presented with a new symptom or whenever you receive any correspondence regarding their child.
If the parent is having difficulty communicating with the other parent and if they have a right of access to the child’s medical records, then you could consider suggesting that they could request a copy of the medical records at reasonable intervals if this would be in the best interest of the child. A scenario where this might be in the best interest of the child is as follows:
A three-year-old child is a patient at the practice and lives with their father. The mother has regular access to the child and has parental responsibility, but the parents do not communicate with each other due to a difficult breakdown in the relationship. The child has epilepsy and the mother has requested regular updates regarding reported epileptic fits, hospital correspondence and medication.
In this scenario Medical Protection suggests that the mother having regular updates regarding the child’s health would be in the best interest of the child, as she has regular contact with the child and cannot glean this information from the father.
If you need assistance with this situation or anything similar, please call the Medical Protection advice line on 0800 561 9090.