The scene
A practice manager called the advice line on behalf of several doctors at the practice. They had received a request from a solicitor acting for the mother of three children, seeking disclosure of the children’s records. The children mainly lived with their father, although the mother had some limited access.
The practice manager said she was aware that those with parental responsibility generally have a right to access their child’s records and they had no concerns about providing the records of the youngest child (aged six), whose records contained only entries about minor childhood illness, routine development checks and routine immunisations. But she was uncertain what to do about the other two records and had a specific question about disclosure of the teacher’s name which appeared in the records.
The second child was nearly 10, and had recently attended with his father and disclosed his reluctance to visit the mother. Apparently he had also had some outbursts at school after spending time with his mother. During the consultation the doctor assured the boy of the confidentiality of the discussion. The father had asked the doctor to phone the boy's teacher, who had been generally reassuring that things now seemed to have settled down.
The third child was 16. A year earlier, before the parents separated and while she was 15, she had attended alone and disclosed she'd had sex on one occasion with her boyfriend a couple of weeks earlier and she was worried about being pregnant. The doctor had established that the boyfriend was in the same school year and that the sex was consensual, and a pregnancy test was negative. The girl had attended a follow-up appointment to discuss contraception but had said the relationship had ended.
MDU advice
The adviser confirmed that someone with parental responsibility can ask for the child’s records. The Information Commissioner's Office makes clear that the right of access belongs to the child, but that parents may exercise that right on behalf of the child if it's clear this is in their best interests.
The adviser also confirmed that children with capacity can access their own records and can allow or prevent others, including their parents, from accessing the information. In Scotland, anyone aged 12 or over is assumed to have capacity to make their own decision on access to their own records and to allow or prevent access by others including to their parents. Although this law does not apply in England, Wales or Northern Ireland, the information commissioner indicates that this is a reasonable approach in the other jurisdictions.
Children younger than 12 may have capacity to make such a decision and their views should be taken into account. If a child has been assured of confidentiality or given information in confidence, you should not normally disclose that information without their consent.
Divorce or separation does not affect parental responsibility, but the MDU’s experience is that children of separated parents may make disclosures relating to difficulties in their parents' relationship that they are particularly concerned about, to avoid their parents knowing. GMC guidance also makes clear that a doctor may withhold information if they consider it would be against the child’s interests to disclose it, whether or not the child has capacity to make the decision themselves.
The outcome
In this case the adviser suggested that the practice should arrange for one of the doctors to discuss the mother's request separately with the two older children.
If the 10-year old agreed to the information being given to the mother, there would be no need to redact the teacher’s name. It is generally reasonable to disclose the names of education or social work professionals, whose information appears in a person’s records because of their professional role with that person - as with healthcare professionals whose names would not be redacted.
The practice manager was invited to call again or write in if they were not able to resolve this readily, as particularly when there are legal teams involved, it can be intimidating receiving solicitors' letters containing demands.
n cases like these, remember that the MDU can assist with drafting responses and with any further steps that might be necessary.
This page was correct at publication on 02/07/2021. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.