A child's best interests

Scott Obrzud provides guidance on the sometimes tricky issue of parental access to a child’s records.

ONE common area of angst and confusion among practice managers phoning the MDDUS advice line relates to requests from parents to access their child’s medical records – particularly requests from fathers who do not live with their children or were unmarried at the time of the birth.

Often when addressing a request to view the contents of a child’s medical records there is confusion over the “residential status” or “access” arrangements relating to the child: interestingly, a parent’s rights in regard to records relates to neither of these issues. When processing a request from a parent there are four main issues to consider before the information is provided:

  • parental responsibility (PR)
  • age of the child
  • third-party information
  • best interests of the child.

Parental responsibility

PR refers to the powers, rights and duties that the majority of parents hold in respect of their own child, for example the authority to consent to treatment on behalf of their child. PR also affords a parent the statutory right to apply for access to their child’s health records. While the law is recognised in all UK legal jurisdictions, there are subtle differences between countries.

In Scotland a birth mother automatically has PR unless this has been removed by a court, and a father will have PR if he was married to the mother at the time of the child’s conception or after. An unmarried father will have PR if his name appears on his child’s birth certificate and the child was born on or after 4 May 2006. An unmarried father can also be granted a PR order by a court or can obtain a PR agreement with the mother of his child.

In England and Wales the law differs slightly in that a birth mother automatically has PR (unless removed by a court) but a father will have PR only if married to the mother at the time of the child’s birth. An unmarried father will have PR if his name appears on his child’s birth certificate and the child was born on or after 1 December 2003. Just as in Scotland, a father can also obtain a PR order from a court or by agreement with the mother.

In Northern Ireland, a father will have PR if married to the mother at the time of the child’s birth or after – if living in Northern Ireland at the time of the marriage. An unmarried father will have PR if his name appears on his child’s birth certificate and the child was born on or after 15 April 2002 – and again a father can also obtain PR by court order or by agreement with the mother.

Age of the child

A child can be judged mature enough to be competent to consent to (or refuse) disclosure of their own records. The General Medical Council states in their guidance booklet 0-18 years: guidance for all doctors (2007): “Young people with capacity have the legal right to access their own health records and can allow or prevent access by others, including the 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.” It would be advisable that a child’s views should be sought and respected if they are deemed to have capacity, unless there is a strong public interest reason to override their views.

Third-party information

When preparing medical records for disclosure, care should be taken to remove any information relating to a third party to ensure the practice adheres to data protection laws. Third-party information can be particularly sensitive in the case of acrimonious separations: for example, details such as the mother’s current address and contact details could inadvertently be disclosed to the father or vice-versa.

Practice managers often ask us if consent is required from both parents when one seeks access to a child’s records. In their 2008 document, Parental Responsibility, the BMA advises that when practices receive a request from a parent with PR for access to medical records, there is no obligation to gain consent or inform the other parent. But it encourages practices to consider doing so if judged in the child’s best interests. Of course, should the child be judged to have capacity you would need their consent.

Best interests

Parents hold PR to protect the health, welfare and development of their child. In the majority of cases it is reasonable for a parent to argue that it is in their child’s best interests that they have access to their medical details, but this may not always be the case, particularly in complex child protection situations. If in any doubt about the best interests of the child, the practice should consider seeking advice from others, for example social work or child protection colleagues. Managers can also contact the advisory team at the MDDUS to discuss individual cases either by telephone (0845270 2034) or via email at advice@mddus.com

Scott Obrzud is a practice adviser at MDDUS and co-editor of Practice Manager