Parental disputes over access to records

HOLIDAYS can be testing times for family relationships. Indeed, lawyers typically see double the rate of divorce inquires in January following all that seasonal togetherness. Family disputes can also prove difficult for healthcare professionals who may end up caught in the crossfire.

One particular fraught area can be access to health records in children. This is a common source of advice calls to MDDUS. A typical case might involve an estranged father wanting to see a child’s medical or dental records to check on vaccination status or details of an accidental injury.

MDDUS advises members to keep the interests of the child foremost in such cases and avoid taking sides in parental disputes. In terms of access to records the law is clear in most cases.

In the UK anyone with parental responsibility can request access to a child’s medical records. A mother automatically acquires parental responsibility at birth no matter where she resides in the UK. Parental responsibility for fathers varies according to circumstances. A father acquires parental responsibility if married to the mother at the time of birth (or conception in Scotland). An unmarried father only has parental responsibility if it is recorded on the birth certificate at registration (and after the dates 1 December 2003 in England or Wales, 15 April 2002 in Northern Ireland and 4 May 2006 in Scotland).

An unmarried father can acquire parental responsibility by legal agreement with the mother or by applying for a court order. The same laws apply to step-parents and civil partners.

Parental responsibility may allow a mother or father to request access to records but the views of the child must also be taken into account. The GMC in its 0-18 guidance states that 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. It further states that capacity depends more on a young person’s ability to understand and weigh up options than on age.

A child can be presumed to have capacity over subject access requests at 16 (12 in Scotland) but before that it will depend upon the individual's maturity. The Information Commissioner’s Office (ICO) advises that in borderline capacity cases health professionals should take into account the full consequences of allowing access to a child’s personal information (particularly in allegations of abuse or ill treatment), any detriment to the child if individuals with parental responsibility cannot access this information and any views the child has on whether their parents should have access to personal information.

Divorce or separation does not affect parental responsibility and both parents can request access to their children's health records. One parent requesting access does not require consent from the other. This applies even if a parent without legal custody has no contact with the child and provides no financial support.

Not all calls to practices regarding a child’s medical records need be contentious. A divorced father may want information on a prescription while their son or daughter is staying the weekend or over a holiday. Yet there may be situations where an individual uses the excuse of access to a child’s records in order gain information or advantage over on ex-spouse. Health professionals must therefore be careful not to disclose any third party details in complying with legitimate disclosure requests, including current addresses.

Again, the guiding principle in dealing with any subject access request should be the best interests of the child. Members unsure how to deal with any particular request should phone an MDDUS adviser for guidance.

ACTION: Avoid being drawn into parental disputes by ensuring all subject access requests to children’s records are dealt with fairly and in line with relevant professional guidance and legislation.