Case file: Advice

Father restricted from accessing records

Young boy sitting on bed in distress
  • Date: 28 September 2022

BACKGROUND

Zach is 11 years old and lives in Scotland. He attends the GP surgery along with his mother in relation to ongoing treatment for an eating disorder.

During the consultation, Zach seeks reassurance from the GP, Dr D, that his father, who is estranged from the family, will not have access to his medical records. The father retains parental rights and responsibilities but has limited access to Zach, given a history of domestic abuse against his mother. The father is a patient at the practice but has not made contact previously to request access to Zach’s records.

The practice manager contacts MDDUS for advice on what to do if the father does make a request in future.

ANALYSIS/OUTCOME

An MDDUS medico-legal adviser (MLA) writes to the practice with advice. She points out that, while the age of legal capacity in Scotland is 16 years, a person under the age of 16 shall have capacity to consent to medical treatment where, in the opinion of the attending doctor, they are capable of understanding the nature and possible consequences of the procedure or treatment. In the context of decisions such as access to health records, a child of 12 or more is presumed to be of sufficient age and maturity to form a view, although it is important to remember that this presumption is only a starting point and that each child must be assessed as an individual to determine whether or not they have capacity.

The General Medical Council (GMC) provides guidance on such cases in 0 to 18 years: Guidance for all doctors. It confirms that young people with capacity have the legal right to access their own health records and can allow and prevent access by others, including their parents. It also highlights that capacity may be achieved earlier or later than age 12.

The MLA advises that it would be appropriate to have a face-to-face consultation with Zach to enable an assessment of capacity, preferably on his own with an appropriate chaperone so that Dr D can be assured that there is no undue influence from a third party.

The GMC states: “The capacity to consent depends more on young people’s ability to understand and weigh up options than on age.”

It further states: “It is important that you assess maturity and understanding on an individual basis and with regard to the complexity and importance of the decision to be made.”

Should Dr D judge that Zach has capacity to make a decision not to have his medical information shared with his father then the practice should abide by this and explain this to the father if he makes contact.

If Dr D does not consider that Zach has capacity to make this decision, the following general principle under the GMC guidance is relevant: “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.”

Dr D may, therefore, still refuse any future request by the father to access Zach’s records, if he judges that such a refusal is in Zach’s best interests. The GMC guidance makes clear that “if the records contain information given by the child or young person in confidence you should not normally disclose the information without their consent". Zach has made it clear that he would not wish his father to have access to this information and this may well have a bearing on Dr D’s consideration of what is in Zach’s best interests.

KEY POINTS

  • A child under 16 in Scotland may have legal capacity to consent to medical treatment, where capable of understanding the nature and possible consequences of treatment. A child in Scotland aged 12 or over is presumed to be of sufficient age and maturity to form a view in relation to matters, such as access to health records, but the doctor still requires to undertake an assessment of capacity, bearing in mind that a child may achieve capacity earlier or later.
  • Children in England under 16 can be deemed to have capacity to make healthcare decisions (including over disclosure of records) if they fully understand what is being proposed (Gillick competence).
  • Ensure such discussions are recorded in the patient notes, along with how information was provided to the patient and a decision was reached.

This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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