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Parents' rights to a child’s records

How does divorce and estrangement affected consent and confidentiality issues when it comes to children's records? Natalie Hayes of the MDU advises.

The divorce rate in England and Wales rose by almost 5% from 2009 to 2010 so it isn't surprising that family structure has become more diverse. But as family structure has changed, doctors have been faced with new medico-legal dilemmas. One of these is the issue of parental responsibility and who can view a child's medical records. Dr Natalie Hayes, medico-legal adviser at the MDU addresses some of the common areas of confusion over parental responsibility.

Can all parents automatically view their child's medical records?

No. In the United Kingdom an adult can only request access to a child's medical records if they have parental responsibility; that is, they have all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property[1]. Not all parents will have this right.

Do a child's biological parents automatically have parental responsibility?

Not necessarily. Although a mother will automatically have parental responsibility for a child from birth, the situation involving a father is more complex. If a child's mother and father were married when the child was born, then the father will also automatically have parental responsibility. However if a child's parents were not married when the child was born, then the father's parental authority will depends on the child's date of birth. If a child was born on or after 1st December 2003 (4th May 2006 in Scotland, 15th April 2002 in Northern Ireland) and the father is named on the child's birth certificate, he will automatically have parental responsibility. For the unmarried father of a child born before this date or born after but the father is not named on the birth certificate, he will not automatically have parental responsibility. He can however acquire parental responsibility either through a Parental Responsibility Agreement (PRA) or a Parental Responsibility Order (PRO).

What are PRAs and PROs?

A Parental Responsibility Agreement (PRA) is a legally binding document that both the mother and father of a child agree to sign, whereas a Parental Responsibility Order (PRO) is an agreement enforced by a court if a mother does not wish to agree to a Parental Responsibility Agreement. Both allow the father of a child to acquire parental responsibility. Step-parents and civil partners can also acquire parental responsibility in this way. 

What happens if a child is taken into care or adopted?

If a child is under temporary care of a local authority, representatives (such as foster parents) can be granted parental responsibility. If a child is permanently removed from the custody of their birth parents or is adopted, the birth parents will have parental responsibility for the child removed and the adoptive parents will be granted parental responsibility instead.

What if a child is considered to have the capacity to consent?

Although anyone with parental responsibility has a right to seek access to their child's medical records, it is important to take into account the views of a child if the child has capacity to be involved in such decisions. The GMC's in 0-18 years: guidance for doctors (2007) sets out the ethical guidance in this matter.

A child or young person who has capacity has the legal right to access their own medical records and can allow or prevent others, including their parents, from accessing them. When assessing the capacity of a young person, a doctor must ensure that they understand the nature, purpose and possible consequences of what is proposed, as well as the consequences of refusal.

Children and young people are deemed to have capacity to make decisions for themselves if they are able to understand, retain, use and weigh up the information they are given and communicate their decision. It will depend more upon the young person's ability to understand and weigh up the options than it will on age. It should be remembered that at 16 (12 in Scotland) a young person can be presumed to have capacity and that before the age of 16, it will depend upon the individual's maturity.

What else should be considered?

GMC guidance states that a doctor may allow a person with parental responsibility to access their child's medical records if it is in the child's best interests. It also states that 'If the records contain information given by the child or young person in confidence, you should not normally disclose this information without their consent.'[2]

Consent of the other parent is not required and there is no obligation for them to be informed of the request for disclosure. However, it may be wise to ensure that the other parent is aware of the request for information so that you can take into account any objection that they may make and the reasons for it.

Natalie Hayes is a medico-legal advisor at the Medical Defence Union.

Children Act 1989

[2] GMC 0-18 years: guidance for doctors (2007), paragraph 54

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