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.

The Access to Health Records Act 1990 requires 'the holder of a health record' - a doctor, dentist or other health professional - to provide access to health records in response to a request by the patient. 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.

Section 3(1) of the Act states that:

3(1) An application for access to a health record, or to any part of a health record, may be made to the holder of the record by any of the following, namely -
(a) the patient;

(b) a person authorised in writing to make the application on the patient's behalf;

(c) where the record is held in England and Wales and the patient is a child, a person having parental responsibility for the patient;

(d) where the record is held in Scotland and the patient is a pupil, a parent or guardian of the patient;

However, information will only be disclosed where the child gives consent or is not - in the opinion of the doctor - 'Gillick competent'. Section 4(2) of the Act states that:

4(2) Where an application is made under subsection (1)(c) or (d) of section 3 above, access shall not be given under subsection (2) of that section unless the holder of the record is satisfied either -
(a) that the patient has consented to the making of the application; or

(b) that the patient is incapable of understanding the nature of the application and the giving of access would be in his best interests.

In effect, a doctor or other health professional - including, under the Act, 'an art or music therapist employed by a health service body' - has the power to decide whether a parent can be given any information on their child's health. The ruling by Cazalet J in Re H (A Minor) (Shared Residence) 1 FLR [1994] 717 only says that "the father is accordingly entitled to the same rights as the mother", which consist in relation to medical matters of the right to ask the doctor for information.

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 'Young People 0 - 18: Guidance for All Doctors' can be found here.

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