Doctors

What information can be accessed?

Parents with parental responsibility for children under the age of 12 should be able to access their children's medical information, but doctors often don't understand the law and wrongly refuse to give parents information about their children.  Children of 12 or over will often be consulted as to whether they give consent for their parents to see their records.  It should not be necessary for the parent who the child normally lives with to consent to the other parent with Parental Responsibility receiving medical information.

The Court of Appeal ruled in Re H (A Minor) (Shared Residence) 1 FLR [1994] 717 that: "Since the father had a parental responsibility order, he was entitled to receive full comprehensive reports from the boy's school and full medical details from his general practitioner."
Cazalet J said in his judgement that:

"Whatever the situation may be thought to be by those concerned in meeting the father's requests, I point out that the father, having obtained a parental responsibility order pursuant to s 3(1) of the Children Act 1989 is entitled to all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child. The father is accordingly entitled to the same rights as the mother in regard to the receipt of any reports or documents which, for example, the school or doctor may hold." Six years later the Department for Education and Skills (DfES) issued its own Guidance on these matters (DfES/0092/2000) explaining that all 'natural parents', regardless of whether they had parental responsibility or not, are equally entitled to participate in their children's educational lives. The document also advised schools how to respond to requests to have the school use a new surname for the child.

The ruling seems clear, but many non-resident parents face difficulties in attempting to obtain any information about their children's education or health from schools and doctors. In seeking access to information from doctors and headteachers it is often more productive to use persuasion and charm, and confrontation is best avoided.

What roles do doctors and health professionals play in the decision?

The ruling in Re H (A Minor) (Shared Residence) 1 FLR [1994] 717 applies equally - if taken at face value - to doctors and other health professionals. It does not allow parents to have copies of the child's medical notes but should ensure that the family doctor or any hospital doctor treating the child will see anyone with Parental Responsibility and discuss the child's health. Where the child is old enough to be considered Gillick Competent, however, his or her consent may be required.

If the child has been re-registered with an unknown family doctor then the Area Health Authority will provide details to anyone with Parental Responsibility if a written request is made (though it may be necessary to supply evidence of Parental Responsibility). The parent must then approach the doctor directly.

Where the patient is over 16, s/he alone is entitled to access, but where the patient is a child under 16 an application can be made by any person with Parental Responsibility.

However, information will only be disclosed where the child gives consent or is not - in the opinion of the doctor - 'Gillick competent'.

The British Medical Association has produced guidance on the Data Protection Act 2018 and access to health records which is available here.

Children aged over 16 years are presumed to be competent. Children under 16 in England, Wales and Northern Ireland must demonstrate that they have sufficient understanding of what is proposed in order to be entitled to make or consent to an SAR. However, children who are aged 12 or over are generally expected to have the competence to give or withhold their consent to the release of information from their health records.

Parents may have access to their children’s records if this is not contrary to a child’s best interests or a competent child’s wishes. For children under 18 or, in Scotland under 16, any person with parental responsibility may apply for access to the records.

Doctors are, therefore, the sole arbiters of whether allowing access to records is in the 'best interests' of any child that they treat and may withhold information from parents as they see fit.

The GMC Guidance document '0–18 years: guidance for all doctors' can be found here.

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