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Dealing with parental disagreements regarding a child patient

By Dr Heidi Mounsey and Dr Rachel Birch - 04th Dec 2023


Within general practice, clinicians can find themselves caught up in disputes between divorced or separated parents about the care of a young patient. Dr Heidi Mounsey and Dr Rachel Birch explore the issues involved

A common question to Medical Protection’s advice line relates to parental disputes, particularly a parent wishing to obtain medical information about their child. While each situation is unique, certain fundamental principles typically apply to all such cases.

Do they have legal guardianship?

Legal guardians have the right to make major decisions regarding a child’s welfare, including those concerning education, health, religion, finances, and morals. They play a key role in ensuring the child’s wellbeing. Parents, legal guardians, and healthcare professionals must prioritise children’s best interests and uphold their dignity and wellbeing.

The HSE National Consent Policy  has a detailed summary of legal guardianship in Appendix 5. It highlights that the relevant provisions are set out in the Guardianship of Children Act 1964 as amended by the Child and Family Relationships Act 2015.

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.

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:

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.

The father can become a joint guardian if both parents sign a statutory declaration agreeing to this.

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 2015 (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.

After separation or divorce, both parents retain legal guardianship of the child, even if they do not have custody. A guardian can designate another person to act as a temporary guardian in case of their incapacity, pending court approval. Doctors should ask for such legal documentation. In their will, a guardian can also appoint someone as the child’s guardian if the guardian passes away.

Is the patient public or private?

Both the Freedom of Information (FoI) Acts 1997 and 2003, as well as the European Union General Data Protection Regulation (GDPR), and the Data Protection Act 2018, grant patients – and if minors, their legal guardians – the right to request copies of their medical records. FoI applies exclusively to GMS patients with a medical card, while GDPR and the Data Protection Act encompass records held by doctors in both public and private capacities.

For children treated in a public (GMS) setting, requests for record access usually fall under FoI, unless otherwise specified. This entails directing requests to the HSE’s FoI office. Although the child’s GP physically holds the records, the HSE, as the ‘public body’, is responsible for deciding on access.

Remember, if a legal guardian requests records under data protection legislation, this request should be considered within the practice and not passed to the HSE

Upon receiving a request, the HSE contacts the patient’s GP for the records, which must be provided to the HSE. The HSE typically seeks comments from the GP, allowing them to express concerns about releasing the information. However, the final decision to grant or deny access to the child’s records rests with the HSE.

Remember, if a legal guardian requests records under data protection legislation, this request should be considered within the practice and not passed to the HSE. Where the child is a private patient, doctors must consider the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Professionals. This emphasises that the welfare of the child is of paramount importance. Paragraph 18 stresses the doctor’s duty to prioritise the best interests of children and young people. In this context, involving them in healthcare discussions, providing age-appropriate information, listening to their views, and treating them respectfully is essential.

This leads on to the next consideration about consent.

Does the child have capacity to consent?

The ICGP has helpful practical advice on the issue. The College’s guidance document on data protection 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?

A legal guardian 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 advisable to assess whether it is in the child’s best interests. Doctors must adhere to national guidelines and legislation prioritising the child’s welfare. If a GP practice deems that granting access would not serve the child’s best interests, they should reach out to Medical Protection.

Furthermore, the Medical Council currently 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.

References available on request

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