Medical, dental and health
From FamilyLawWiki
The GMC booklet - "0-18 years guidance for doctors" tells doctors how to respond to request by parents. It also states that "serious or persistent failure to follow this guidance will put your registration at risk."
Contents |
0-18 years: guidance for all doctors
The booklet that is very clear about rights of all parents with PR to access their children's records. Especially Para 55 "Divorce or separation does not affect parental responsibility and you should allow both parents reasonable access to their children's health records." Plus a Appendix 2 giving a clear explanation of Parental Responsibility. GMC Guidance
Here follows an index of highlights by Ian Julan of FNF:
Principles of confidentiality
Sharing information without consent
46.If a child or young person does not agree to disclosure there are still circumstances in which you should disclose information:
a.when there is an overriding public interest in the disclosure
b.when you judge that the disclosure is in the best interests of a child or young person who does not have the maturity or understanding to make a decision about disclosure
c.when disclosure is required by law.
Principles of confidentiality: Sharing information without consent
Public interest
47.You can disclose, without consent, information that identifies the child or young person, in the public interest. A disclosure is in the public interest if the benefits which are likely to arise from the release of information outweigh both the child or young person’s interest in keeping the information confidential and society’s interest in maintaining trust between doctors and patients. You must make this judgement case by case, by weighing up the various interests involved.
48.When considering whether disclosure would be justified you should:
a.tell the child or young person what you propose to disclose and why, unless that would undermine the purpose or place the child or young person at increased risk of harm
b.ask for consent to the disclosure, if you judge the young person to be competent to make the decision, unless it is not practical to do so.
49.If a child or young person refuses consent, or if it is not practical to ask for consent, you should consider the benefits and possible harms that may arise from disclosure. You should consider any views given by the child or young person on why you should not disclose the information. But you should disclose information if this is necessary to protect the child or young person, or someone else, from risk of death or serious harm. Such cases may arise, for example, if:
a.a child or young person is at risk of neglect or sexual, physical or emotional abuse (see paragraphs 56 to 63)
b.the information would help in the prevention, detection or prosecution of serious crime, usually crime against the person22
c.a child or young person is involved in behaviour that might put them or others at risk of serious harm, such as serious addiction, self-harm or joy-riding.
50.If you judge that disclosure is justified, you should disclose the information promptly to an appropriate person or authority and record your discussions and reasons. If you judge that disclosure is not justified, you should record your reasons for not disclosing.
Disclosures when a child lacks the capacity to consent
51.Children will usually be accompanied by parents or other adults involved in their care, and you can usually tell if a child agrees to information being shared by their behaviour. Occasionally, children who lack the capacity to consent will share information with you on the understanding that their parents are not informed. You should usually try to persuade the child to involve a parent in such circumstances. If they refuse and you consider it is necessary in the child’s best interests for the information to be shared (for example, to enable a parent to make an important decision, or to provide proper care for the child), you can disclose information to parents or appropriate authorities. You should record your discussions and reasons for sharing the information.
Disclosures required by law
52.You must disclose information as required by law. You must also disclose information when directed to do so by a court. See: [1]
Access to medical records by children, young people and their parents
53.Young people with capacity have the legal right to access their own health records and can allow or prevent access by others, including their parents.* In Scotland, anyone aged 12 or over is legally presumed to have such capacity. A child might of course achieve capacity earlier or later. In any event you should usually let children access their own health records. But they should not be given access to information that would cause them serious harm or any information about another person without the other person’s consent.
54.You should let parents access their child’s medical records if the child or young person consents, or lacks capacity, and it does not go against the child’s best interests. If the records contain information given by the child or young person in confidence you should not normally disclose the information without their consent.
55.Divorce or separation does not affect parental responsibility and you should allow both parents reasonable access to their children's health records.
- There are circumstances in which disclosures may be made to parents and others without consent (see paragraphs 46–52).
Copying letters to patients: good practice guidelines. Department of Health. 30 April 2003
This document sets out best practice guidelines for sharing letters with patients. PDF version: [2]
Here are some highlights:
Children and young people
4.15 Young people aged 16 and 17 are able to make health care decisions for themselves, and should, therefore, be asked for their agreement to receive copies of letters about them.
Annex C: Legal Framework
Data Protection Act 1998
The Data Protection Act 1998 is based on principles that are legally enforceable. These include
- that people should have access to data about them
- that data should be processed fairly and lawfully
- that data should be accurate
- that Data should be protected by appropriate security.
Access can only be denied where:
- the information may cause serious harm to the physical or mental health, or condition of the patient or any other person or
- where giving access would disclose information relating to or provided by a third person who had not consented to the disclosure.
The patient, anyone authorised by the patient, parents of children under 16 or a ‘Gillick competent’ child (e.g., girl under 16 who asks for contraception and the health care professional decides she is competent) are entitled to access their medical records.
The DoH website
[Home >> Managing your organisation >> Information policy >> Patient confidentiality and Access to Health Records]
Frequently asked questions about accessing health records
Access to a child’s health record
Question
Who has the right of access to a child’s health record?
Answer
As a general rule a person with parental responsibility will have the right to apply for access to a child’s health record.
Question
What is parental responsibility?
Answer
Parental responsibility for a child is defined in the Children’s Act 1989 as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property". Although not defined specifically, responsibilities therefore would include:- - Safeguarding and promoting a child’s health, development and welfare. - Financially supporting the child. - Maintaining direct and regular contact with the child.
Question
What rights could be considered to fulfil these responsibilities?
Answer
Included in the parental rights which would fulfil the parental responsibilities above are:- - Having the child live with the person with responsibility or having a say in where the child lives. - If the child is not living with her/him, having a personal relationship and regular contact with the child. - Controlling, guiding and directing the child’s upbringing.
Question
Can a parent not living with the child have access to the child’s health record?
Answer
Yes, if they have parental responsibility for the child e.g. separated/divorced parent.
Question
Are there situations in which access to the child’s records can be refused?
Answer
Yes. As the child grows older and gains sufficient understanding, he/she will be able to make decisions about his/her own life. Where a child is considered capable of making decisions about his/her medical treatment, the consent of the child must be sought before a person with parental responsibility can be given access. Where, in the view of the appropriate health professional, the child patient is not capable of understanding the nature of the application, the holder of the record is entitled to deny access if it were not felt to be in the patient’s best interests.
Question
Do parents have the right to know what treatment their adolescent child is receiving from their GP?
Answer
The law regards young people aged 16 or 17 to be adults for the purposes of consent to treatment and right to confidentiality. Therefore if a 16 year old wishes a medical practitioner to keep the treatment confidential then that wish should be respected. For example, children under the age of 16 who have the capacity and understanding to take decisions about their own treatment are also entitled to decide whether personal information may be passed on and generally to have their confidence respected, for example if they were receiving counselling or treatment about something they did not wish their parent to know. Case law has established that such a child is known as ‘Gillick Competent’, i.e. where a child is under 16 but has sufficient understanding in relation to the proposed treatment to give, or withhold consent, consent or refusal should be respected. However, good practice dictates that the child should be encouraged to involve parents or other legal guardians in any treatment.
