In general practice, doctors may sometimes feel they are being drawn into conflicts between the separated parents of a patient. Dr Heidi Mounsey and Dr Rachel Birch, Medicolegal Consultants at Medical Protection, discuss common queries received on Medical Protection’s telephone advice line, when one of the parents asks for medical information about their child.
Every set of circumstances is different, but there are some underlying principles that are usually applicable to all of these cases that should be considered.
Do they have legal guardianship?
Legal guardianship refers to the right of the guardian to be involved in all major decisions affecting the welfare and upbringing of a child, including decisions relating to education, health, religious, monetary and moral concerns. Legal guardians are generally considered best placed to safeguard the health and wellbeing of the child. Parents, legal guardians and health and social care professionals have a responsibility to act in the best interests of children and to care for them in a manner that respects their dignity and wellbeing.
The HSE National Consent Policy1 has a detailed summary of Legal Guardianship in Appendix 5, highlighting that the relevant provisions are set out in the Guardianship of Children Act 1964 as amended by the Child and Family Relationships Act 2015.2
The mother has automatic guardianship rights of her child. The father of the child is automatically a guardian, if he has married the mother of the child. Even if the parents of a child marry each other after the birth, then the father automatically becomes a joint guardian of the child, provided that his name is on the birth certificate.
Where the parents are unmarried, only the mother has automatic guardianship rights. The father can, however, become a joint guardian in a number of ways:
1. An unmarried father will automatically be a guardian if he has lived with the child's mother for 12 consecutive months after 18 January 2016, including at least three months with the mother and child after the child's birth.
2. The father can become a joint guardian if both parents sign a statutory declaration agreeing to this.
3. The father can apply to the court to be made a joint guardian, in which case the decision whether to make the father a joint guardian is made on the basis of the best interests of the child.
Where a child has been jointly adopted, the adoptive parents are the child’s legal guardians.
In respect of same-sex couples, the child’s biological parent is a legal guardian. The biological parent’s partner or spouse may apply to the court to become a legal guardian. In addition, where a same-sex couple has a child through Donor Assisted Human Reproduction after 4 May 2020 and has complied with the provisions of Part 2 of the Children and Family Relationships Act 20152 (ie they have used a recognised fertility clinic and have signed all the relevant consents and declarations), the mother’s spouse or civil partner will automatically be the legal parent of the child. A cohabitant of the biological mother will be a legal guardian if they have lived with the child’s mother for 12 consecutive months, including at least three months with the mother and child following the child’s birth.
Surrogacy laws are complex, and doctors are advised to request review of legal confirmation of legal guardianship.
Following a separation or divorce, both parents remain the child’s legal guardian, even if the child is not living with them and they have not been awarded custody of the child.
A guardian may nominate another person to act as temporary guardian in the event of the guardian’s incapacity. However, this is subject to court approval and doctors should request to see copies of such legal documentation. The guardian will not generally have the right to make certain major decisions about the child unless that right is expressly granted by the court. A guardian may also, in their will, appoint a person to act as the child’s guardian in the event of the guardian’s death.
Is the patient public or private?
Both the Freedom of Information Act 2014 and GDPR and the Data Protection Act 2018 provide patients (and for minors, their legal guardians) with the legal mechanism to request a copy of their medical record. The Freedom of Information legislation applies to the records of GMS patients holding a medical card. GDPR and the Data Protection Act apply to records held by the doctor in both a public and private capacity.
If the child is treated in a public (GMS) capacity, a request for access to records would usually be dealt with under Freedom of Information legislation, unless stated otherwise. This means that requests for medical records should be directed to the HSE’s Freedom of Information Office. Although the medical records are under the physical control of the child’s GP, it is actually the HSE who are the ‘public body’ for deciding whether access to the records should be granted.
Once a request has been received, the HSE will ask the patient’s GP for the records and these must be provided to the HSE. The HSE will usually invite comments and this is an opportunity for the GP to set out any concerns about releasing the information – however, the decision to provide or refuse access to the child’s records will ultimately lie with the HSE.
It is important to remember that, if the legal guardian makes a request for records under Data Protection legislation, such requests should not be directed to the HSE, but considered within the practice. For requests founded on Data Protection legislation doctors must consider the Medical Council’s guidance,3 which emphasises that the welfare of the child is of paramount importance. Paragraph 18 of the guidance outlines that, when treating children and young people, the doctor’s “primary duty is to act in their best interests. You should involve them as much as possible in discussions about their healthcare, give them information suitable for their age, listen to their views and treat them with respect”.
This leads on to the next consideration:
Does the child have capacity to consent?
The Irish College of General Practitioners has helpful practical advice4 and states:
“An individual can only make an access request for their own personal data. Legal guardians can also make an access request on behalf of a child. However, once a child is capable of understanding their rights to privacy and data protection, the child should normally decide for themselves whether to request access to data and make the request in their own name.
“This is not age dependent. It would also be important in such a case that the GP be satisfied that the person was genuinely acting on behalf of, and in the best interests of, the child whose data was being requested.
“Revealing of medical information of a child who is capable of making decisions themselves will in most situations constitute a breach of the Data Protection Acts if undertaken without the consent of the child capable of making their own decisions.”
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.
Is the request in the child’s best interests?
An individual with legal guardianship 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.
Doctors have an obligation to comply with the national guidelines and legislation for the protection of children, which state that the welfare of the child is of paramount importance.5
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.
Furthermore, the Medical Council advises:
“Where a patient is capable of making their own decisions about their healthcare, you must get their consent before giving information that identifies them….to the patient’s relatives and close friends. While the concern of the patient’s relatives and close friends is understandable, you must not disclose information to them without the patient’s consent. If the patient does not consent, you should respect their decision, except where failure to disclose information would put the patient or others at risk of serious harm.”
If a child or young person with capacity refuses to allow their legal guardian 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 a legal guardian to overrule a competent child’s refusal, it would be prudent to contact Medical Protection to discuss this matter further.
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.
In addition, any information that could cause serious harm to the mental or physical health of the patient or others should be removed.
Advice line scenarios
A number of examples of queries received about separated parents are included below to highlight the above 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, or do you consider that it is in the best interests of the child for the mother to be made aware of the request?
The father of a three-year-old child says he has legal guardianship 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 he has legal guardianship. It is acceptable to ask the individual for photographic proof of identity, such as a passport, as well as evidence that he has legal guardianship, such as a letter from a solicitor, court documentation or a marriage certificate.
I did that, and he showed me the relevant documentation – but now the mother of the child has contacted the practice to say the father’s legal guardianship 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 legal guardianship.
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 is a legal guardian 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 a 14-year-old child requests access to the child’s records. We are satisfied he is the child’s legal guardian. 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 legal guardianship.
As the father is the child’s legal guardian, he has a right to request disclosure of his child’s records. However, 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 one option, in this circumstance, may be to provide the records with the registered address (and any other contact details) removed. However, you may wish to consider discussing his request with the child’s mother, in order to make a decision on the child’s best interests.
The father of a one-year-old child has made a request for his child’s records. He is the child’s legal guardian, 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 is a legal guardian 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.
References
1HSE National Consent Policy
2Irish Statute Book - Children and Family Relationships Act 2015
3Medical Council - Guide to Professional Conduct and Ethics for Registered Medical Professionals
4Irish College General Practitioners (ICGP) - General Data Protection Regulation (GDPR) and GPs
5Child and Family Agency - Children First National Guidance for the Protection and Welfare of Children 2017