What happens when separated parents ask for medical information about their child? Dr Heidi Mounsey, Medicolegal Consultant at Medical Protection, looks at this common query to our advice line.
Every set of circumstances is different, but there are some underlying principles that are usually applicable to all of these cases and which should be considered in the event of a request.
Does the individual making the request for the child’s records hold parental responsibility?
Any individual with parental responsibility (their legal rights and responsibilities as a parent) for a child is able to request access to that child’s medical records, and therefore it is useful to ascertain whether the person making the request holds parental responsibility.
Birth mothers and fathers married to the mother when the child is born automatically have parental responsibility. If the couple later separate or divorce, they both retain parental responsibility. It is possible for a court to remove parental responsibility and if you think this may be the case, it would be prudent to seek further information.
If the father was not married to the mother at the time of the child’s birth, he may still hold parental responsibility. This can occur in one of three ways:
- Obtaining a parental responsibility agreement with the mother
- Obtaining a parental responsibility order from the court
- Being named on the child’s birth certificate
In this latter case, different dates apply to different jurisdictions. Unmarried fathers who are named on the birth certificate will hold parental responsibility if the child was born on or after:
- 1 December 2003 in England and Wales
- 4 May 2006 in Scotland
- 15 April 2002 in Northern Ireland
For same-sex parents, both hold parental responsibility if they were civil partners at the time of procedures such as donor insemination or fertility treatment. If same-sex parents are not civil partners, the second parent can obtain parental responsibility by applying for it if a parental agreement was made, or by becoming civil partners and making a parental responsibility agreement or jointly registering the birth. It may be worth noting that more than two individuals can hold parental responsibility for the same child.
Does the child have capacity to consent?
The child may have the capacity to decide whether they do or do not want an individual with parental responsibility to access their medical records.
The GMC, in their guidance 0-18 years: guidance for all doctors, states:
“53 Young people with capacity have the legal right to access their own health records and can allow or prevent access by others, including their parents. In Scotland, anyone aged 12 or over is legally presumed to have such capacity. A child might of course achieve capacity earlier or later. In any event you should usually let children access their own health records. But they should not be given access to information that would cause them serious harm or any information about another person without the other person’s consent.
“54 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.”
This highlights the need to assess the capacity of the child and to determine their views. In making an assessment of capacity, it should be established whether the child understands the nature of the disclosure request, the reason for it, and the potential consequences of either agreeing or refusing to allow access.
In England and Wales, it is presumed an individual of age 16 and over (12 and over in Scotland) has capacity to consent but being below this age does not automatically mean that the young person lacks capacity.
If a child or young person with capacity refuses to allow a person with parental responsibility access to their records, but it would be in the child’s best interests for access to be granted, it may be useful to discuss this further with the child and encourage them to permit access to be granted. However, it should be remembered that a child with capacity does have the legal right to refuse such access. If a request is made by an individual with parental responsibility to overrule a competent child’s refusal, it would be prudent to contact Medical Protection to discuss this matter further.
Is the request in the child’s best interests?
An individual with parental responsibility has the right to seek access to their child’s medical records and therefore, if the child lacks capacity, the records should normally be provided; however, it is good practice for consideration still to be given as to whether it is in the child’s best interests to allow such access. If a situation arises in which a GP practice feels it would not be in the best interests of the child to grant such access, they are advised to contact Medical Protection.
What about other, third party, information contained within the records?
Third party information – such as details about the other parent (including contact information) – should be redacted before access to the records is granted, or alternatively it may be possible to seek permission from the third party to disclose the information.
A number of examples of queries received about separated parents are included below to highlight these points:
The mother of a five-year-old child has made a request for her child’s records. I know her and the child’s father are estranged. Do I need to tell the father about the request and seek consent to release the records?
Where one parent makes a request to access their child’s records, there is no obligation to inform the other parent or to seek consent.
You may wish to consider informing the other parent about the request, but this should be considered on a case-by-case basis – for example, would information from the non-requesting parent be needed to form part of best interests decision making?
The father of a three-year-old child says he has parental responsibility and wants access to the child’s records, but I’m not sure he does – what can I do?
You should be satisfied that the person requesting access has the right to do so – ie in this case, that they hold parental responsibility. It is acceptable to ask the individual for proof of identity and/or evidence they have parental responsibility.
I did that, and he showed me the birth certificate – but now the mother of the child has contacted the practice to say the father’s parental responsibility was removed by the court – what do I do now?
In this situation it is reasonable to ask the mother to provide evidence that the court has removed the father’s parental responsibility.
The mother of a six-year-old child brings the child to all appointments but the father wants us to inform him every time the child attends. He says this is necessary because he cares for the child 50% of the time. Are we required to comply with this?
If the father holds parental responsibility, then he has a right to request access to the child’s records, but the practice is not obliged to inform him on each occasion the child attends. It may be helpful to encourage the father to communicate with the mother about the appointments on the basis this is likely to be in the best interests of the child, but the practice may also wish to consider a compromise and provide an update to the father on request at periodic intervals.
The father of an 11-year-old child requests access to the child’s records. We are satisfied he has parental responsibility. Should we provide them?
In this circumstance, the practice should consider whether the child is competent to consent to, or refuse, disclosure of their records. If the child has capacity to make this decision, then their view should normally be respected subject to the guidance outlined above.
The mother of a seven-year-old child has stated that under no circumstances should the child’s records be provided to the father, as she is worried that he will find out their address. She states he is not currently permitted to see the child. The father calls the practice requesting the records. He is able to demonstrate that despite not having contact with the child he does still hold parental responsibility.
As the father holds parental responsibility, he has a right to request disclosure of his child’s records. It is acceptable to withhold information if disclosure would not be in the best interests of the child or could lead to serious harm, but this would need to be carefully considered. Third party information should be redacted in the absence of consent to disclose it, and therefore in this circumstance it may be appropriate to provide the records with the registered address (and any other contact details) removed.
The father of a one-year-old child has made a request for his child’s records. He has parental responsibility, and states the request is so that he can apply to the court for custody of the child. However, the mother of the child tells me the father is drunk every night and so therefore I am not sure he is a fit person to look after the child.
The father holds parental responsibility and therefore has a right to request his child’s records. As in other scenarios, consideration needs to be given to the child’s best interests, whether disclosure would cause serious harm, and what third party information should be redacted, but ultimately it would be for the court to decide whether it would be appropriate for the father to have custody of the child.
The father of a six-month-old baby wants the baby to be circumcised for religious reasons but the mother disagrees. Both individuals hold parental responsibility. I perform non-therapeutic circumcisions on a private basis – can I do the procedure with just the consent of the father?
It is not always necessary to get the consent of both parents for routine decisions, even when they both hold parental responsibility. However, for a procedure such as this, consent should be obtained from both parents. The GMC’s guidance Personal beliefs and medical practice, in the section entitled Procedures provided for mainly religious or cultural reasons, states:
“20 If the patient is a child, you must proceed on the basis of the best interests of the child and with consent. Assessing best interests will include the child’s and/or the parents’ cultural, religious or other beliefs and values. You should get the child's consent if they have the maturity and understanding to give it. If not, you should get consent from all those with parental responsibility. If you cannot get consent for a procedure, for example, because the parents cannot agree and disputes cannot be resolved informally, you should:
inform the child’s parents that you cannot provide the service unless you have authorisation from the court
advise the child’s parents to seek legal advice on applying to the court.”
A similar situation applies to vaccination, with the Green Book (June 2021) stating:
“Disagreement between parents
“Although the consent of 1 person with parental responsibility is usually sufficient (see Section 2(7) of the Children Act 1989), if 1 parent agrees to immunisation but the other disagrees, the immunisation should not be carried out unless both parents can agree to immunisation or there is a specific court approval that the immunisation is in the best interests of the child.
“If there is any evidence that the person with parental responsibility may not have agreed to the immunisation (for example the notes indicate that the parent(s) have negative views on immunisation), or may not have agreed that the person bringing the child could give the necessary consent (for example suggestion of disagreements between the parents on medical matters) then the person with parental responsibility should be contacted for their consent. If there is disagreement between the people with parental responsibility for the child, then immunisation should not be carried out until their dispute is resolved.”
If you have any doubts about how best to approach a request to disclose a child’s records to separated parents, please contact Medical Protection’s advice line on 0800 561 9090.