3 Oct 2017
You have been treating a married couple and their three children for several years, when suddenly the marriage becomes acrimonious and the couple file for divorce. Next thing you know, the father is demanding access to one of the children’s medical records. However, when pressed, he admits that he’s not the primary carer.
Understandably, doctors are often concerned about breaching privacy requirements when facing requests like these. We frequently receive calls to our Medico-Legal Advisory Service for advice on this difficult issue. These situations are often further complicated by the fact that childcare is often provided by grand-parents or other family members.
The scenario above raises a number of questions:
- Who has the right to access children’s medical records?
- What if there is a court order?
- Is there a conflict of interest when all family members are patients of one doctor?
- Does the mature minor need to be consulted?
While every situation should be considered on a case-by-case basis, the basic principles outlined below provide a useful guide.
Parents’ rights and grounds for refusal
Under the common law and the Family Law Act 1975, parents have a right to receive information about medical treatment which has been or is intended to be, provided to a parent’s child. Denying access to a child’s medical record when there is no valid reason not to, may lead to a complaint. The Office of the Australian Information Commissioner may impose a fine if they consider that the practice has unreasonably refused a request for information.
Members often raise concerns that they believe the medical records may be used as ammunition during custody battles and not for valid health-related reasons. However, the grounds to refuse a request for access to medical records are based on the health and safety of individuals or the unreasonable impact disclosure may have on another person’s privacy, rather than the reason behind a request. Therefore, being suspicious of a parent’s reason for requesting a child’s records is not sufficient grounds to refuse.
Court orders and custody
Generally speaking, a doctor may assume that the person accompanying the child to a consultation who identifies themselves as the child’s parent is the child’s present guardian/parent and their medical treatment can be discussed with them. In situations where it’s clear the relationship has broken down, it’s prudent to ask if there is a court order regarding custody and care arrangements. This may guide the practice around who is provided with access to the child’s medical records. The court order should also be placed in the child’s medical records.
It’s unusual for a court to remove a parent’s right to receive information about their child’s medical treatment. Even in cases where a parent is restricted in the amount of access they have to the child, or has no access, the parent may be entitled to information about the child’s treatment.
It’s only in circumstances where providing information may pose a risk to the health or safety of an individual, or a court order specifically prohibits one parent receiving such information, that a practice may be justified in refusing to supply information, or only providing limited information. Usually, the court states that one parent should inform the other if medical treatment is provided to the child. In this situation, there is an implied expectation that both parents can receive information from the practice. In circumstances where the order stipulates that both parents need to consent to the child’s treatment, the practice should obtain the court order and written evidence of the joint consent.
Some treatment, which is significant and permanent in nature, for example, sterilisation, cannot be consented to by the child’s parents and needs the approval of a court.
Conflicts of interest
There is a real risk that a conflict of interest issue may arise if a doctor continues to treat both parties who are feuding. Conflicts can eventuate when parents attempt to convince the doctor to support their cause. We frequently assist members where there has been a suggestion that the doctor has taken sides. It’s very important to remain neutral and to understand that your role is to assist your patient to maintain good health.
If a doctor believes that a relationship breakdown between partners or a domestic violence situation is placing them in a position of conflict, the doctor should cease treating both partners. The doctor can continue to treat one partner if the other partner doesn’t object, but this often leads to a perception of bias. The AMA’s Supporting Patients Experiencing Family Violence – A Resource for Medical Practitioners, offers guidance for doctors dealing with domestic violence situations.
Where there are children in the relationship there may not be a conflict in continuing to treat the children. However, the doctor should make it clear to both parents that their sole interest is the health of the child. And if the parents or one of them by their actions or demands prejudices the ability of the practice to provide good care to the child, the practice will have no choice but to terminate the treating relationship.
Mature minors and consent
In some states, minors can consent to treatment from the age of 14 or 16. If there is no legislation which applies, the practice must apply the common law. This states that if a child has a sufficient level of intelligence and maturity to be able to understand the nature of proposed treatment, the consequences of having the treatment or not having the treatment, the risks involved and alternative options to the treatment, the child can give valid consent to treatment. This patient is known as a mature minor or ‘Gillick-competent’. A corollary to this principle is that the mature minor can refuse to consent to one or both parents receiving their medical record. The practice must honour this wish.
If treatment is urgent or the child will suffer harm if it’s not provided in a timely manner, under the doctrine of necessity, treatment can be provided without the consent of a parent. However, except in cases of direst urgency, members should consult with Avant before providing treatment.
- Generally speaking, a parent or guardian has a right to access a child’s medical records.
- Where the practice is aware of a relationship breakdown between parents, it’s a good idea to ask if there is a court order in place and to obtain a copy.
- Information can be withheld if the practice believes that giving information to a parent will pose a serious and imminent threat to a person or unreasonably impact the privacy of another person.
- If the risk from disclosing a child’s records can be addressed by redacting or covering parts of the record, or providing a summary of treatment, this should be done rather than not providing any information.
- It’s not advisable to care for both parties in a relationship breakdown as conflicts of interest may arise.
By Dr Peter Henderson, Senior Medical Advisor, Avant and Harry McCay, Senior Solicitor, Avant Law
Download Avant’s Privacy Essentials factsheet at avant.org.au/avant-learning-centre/ to understand your privacy obligations.
*references available on request.
Published: 3 Oct 2017