Ms Síle O’Dowd, Legal Counsel at Medisec Ireland CLG, addresses some of the key considerations when there are
disagreements between guardians/ parents regarding treatment and the release of information in respect of minor patients.
The starting point for considering any request for information relating to a minor patient, or a request to be involved in decisions regarding their care, is to consider the issue of legal guardianship.
What is legal guardianship and who is
the legal guardian?
Guardianship represents the collection of rights and duties in respect of a child, and guardians are responsible for the moral, intellectual and physical wellbeing of the child, including decisions regarding their healthcare. Guardianship should not be confused with custody (responsibility for the day-today care of the child) and access (right of a person who does not live with the child to spend time with the child). Guardianship can arise in a number of different forms including the following:
Mother – The biological mother of a child, whether married or unmarried, is automatically a legal guardian of that child. Married father – A child’s father also has automatic guardianship if he is married to the child’s mother; either before or after the birth of the child. Following a separation or divorce, both parents remain the child’s legal guardians, regardless of whether one or both parents have custody of the child.
Unmarried father meeting the prescribed co-habitation periods – following the introduction of the Children and Family Relationships Act 2015 (‘the 2015 Act’), an unmarried father can automatically become a legal guardian of his child if he has lived with the child’s mother for 12 consecutive months, including at least three months after the birth of the child.
It is important to note that the cohabitation period can only be calculated from the commencement date of the
2015 Act, ie, after 18 January 2016.
2. Guardianship by statutory declaration
Guardianship can also arise by way of statutory declaration. If both an unmarried mother and father are in agreement that the father should become the child’s joint legal guardian, the parents can complete a statutory declaration to that effect. A separate statutory declaration is required in respect of each individual child. At present, there is no central register or database for these declarations.
3. Guardianship by court order
A child’s father (unmarried to the child’s mother) can also apply to the local district court in order to be appointed joint legal guardian, regardless of whether his name appears on the child’s birth certificate or not. The court will make its decision based on the child’s best interests. There are other forms of guardianship which arise less frequently in day-to-day practice. These include adoption, non-parental, testamentary and temporary guardianship. A doctor may also be presented with a scenario where guardianship has been granted in another jurisdiction. The 2015 Act has helpfully confirmed that guardianship should be recognised when the equivalent rights and responsibilities are acquired in another jurisdiction.
Proof of guardianship
It is good practice to confirm the identity of a child’s legal guardians when registering them as a patient of the practice and to request proof of guardianship and formal identification before disclosing any minor patient information. The
proof of guardianship should be kept on the child’s records for future reference. In some circumstances, such as guardianship on foot of the requisite “cohabitation period”, there may be no written proof and it may be necessary to inquire about the relevant dates/periods of cohabitation.
Proof of guardianship can include one of the following:
A marriage certificate showing that the father was married to the child’s mother;
A copy of the statutory declaration;
A court order
As a general rule, there is a presumption of entitlement for legal guardians to have access to their children’s medical records (with any third party information redacted) unless a doctor believes that releasing the information would not be in the best interests of the child. The child’s best interests must be the doctor’s paramount consideration when dealing with any such requests. In situations where it may not be in the child’s best interests to release the information, there is potential for the decision to be interpreted as discrimination against the parent/guardian requesting the information. In these situations, it is advisable to err on the side of caution and consult with your professional indemnifier/insurer/legal advisor for further advice.
Taking account of the views of the minor
In line with paragraph 18.1 of the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners, if it is felt that the minor is sufficiently mature to understand the implications of the release of his or her records, then his or her consent should be obtained before allowing access. Part two of the HSE National Consent Policy considers the concept of a ‘mature minor’ noting that it is dependent on the child’s level of maturity, with no lower age limit defined in the document. It should be made clear in any dealings with minor patients that parents/guardians may be entitled to access their records up to 18 years and it is, therefore, important for the minor patient, despite their maturity, to understand that their confidentiality cannot be guaranteed.
Consent to treatment of the minor patient
The consent of a legal guardian is usually required to treat any patient under the age of 16 (or 18 in respect of psychiatric treatment). It is generally accepted that children under the age of 16 years should be involved in healthcare decision-making, but that the decision-making rests with the child’s guardians, bearing in mind the paramount responsibility on the doctor to act in the child’s best interests.
It is important to firstly clarify the precise role of the guardian and whether they have the necessary rights to consent on behalf of the child. Where there are two or more guardians with appropriate rights who share parental responsibility, it is usually sufficient for one guardian to give consent to day-to-day treatment and this is acknowledged in the HSE National Consent Policy. However, where decisions may have profound and/or irreversible consequences, it is advisable that both or all guardians are consulted.
As a general rule of thumb, the more complex the decision, or the more serious the situation, the greater the need to
include all guardians in your discussions.
Disagreement amongst guardians regarding treatment
Where there is reason to believe that the guardians may not be in agreement, you should seek the consent of all guardians with the exception of emergency situations. In emergency circumstances where a guardian is not contactable, the general doctrine of necessity applies. In all cases, the best interests of the child must be the paramount consideration. If a doctor is aware that a child’s guardians do not agree with certain medical treatment, as an initial step, it is advisable to speak with the guardians together to go through the options and answer any questions they may have and see if agreement can be reached and documented on the patient’s file.
Where guardians cannot reach agreement, they can consider mediation and/or collaborative law and/or can apply to the court for direction. For example, where agreement cannot be reached on childhood vaccinations, one guardian can apply to the court for an order dispensing with the need for consent of the other. A court can use its discretion to dispense with a guardian’s consent if it is found to be unreasonably withheld, always making its decision based on the child’s best interests.
If there is any uncertainty regarding general issues of consent between guardians, it is advisable to try to obtain
written agreement confirming that day-to-day routine care can be provided with the consent of one guardian. This will
avoid any legal uncertainty and the treating doctor can provide medical treatment to the child as required.
Covid -19 vaccine
The HSE has issued guidance, which is available on the Executive’s website, in respect of the roll-out of the Covid-19 vaccine to the under-16 age group, which specifically addresses situations where there is disagreement amongst parents/guardians. It advises that every reasonable effort should be made to avoid vaccination of a child where one parent/guardian has indicated that they object to vaccination.
The onus, as per the HSE National Consent Policy, is on the objecting parent/guardian to make this objection known to the service in question. However, it notes that because of the way in which the vaccination roll-out is delivered for the 12-to-15 year old cohort, it is not possible to provide an absolute guarantee that notification of an objection will ensure that the child is not vaccinated.
Child safety concerns
As with all matters relating to the minor patient, if at any stage, you believe or have reasonable grounds for suspecting that a child is being harmed, has been harmed, or is at risk of harm through sexual, physical, emotional abuse or neglect, you should inform Tusla of your concerns without delay in line with your mandatory reporting obligations. Queries against the background of complex and contentious family law matters can often involve very specific individual circumstances.
If you have any such queries, it is always advisable to contact your indemnifier/insurer/ legal advisor for advice and, if necessary, ask the parents to seek a court order.
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