Parental responsibility and disclosure to a solicitor

A practice manager called the advice line following a request from a solicitor acting for the mother of three children, seeking disclosure of the children’s records.

The scene

A practice manager called the advice line on behalf of several doctors at a GP 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 that 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 their discussion would be confidential. 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 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 respecting confidentiality is essential and applies when the patient is a child or young person as well as when the patient is an adult (see the GMC's 0-18 years: guidance for all doctors, paragraph 42).

Children and young people with capacity can access their own records and can usually allow or prevent others, including their parents, from accessing the information (paragraph 53).

In Scotland, anyone aged 12 or over is legally presumed to have such capacity. Although this law does not apply in England, Wales or Northern Ireland, the Information Commissioner’s Office (ICO) 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.

Someone with parental responsibility can ask for their child’s records. The ICO 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 the child’s best interests.

It is usually appropriate to disclose information to a parent if the child or young person consents, or lacks capacity, and it does not go against the child’s best interests. If the child or young person has given information in confidence, that should not usually be disclosed without consent (paragraph 54).

It is important to check through notes before disclosure and remove information that might either cause serious harm if disclosed, or would identify a non-medical third party who has not consented to disclosure, in circumstances where it would not be reasonable to disclose. For example, if the notes of a child included reference to their other parent. The address of the child should also be redacted from copy records.

Divorce or separation does not affect parental responsibility, but in our experience, 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 consider the request because the ethical responsibility sits with the doctors. The doctor decided to discuss the mother's request separately with the two older children.

The 10-year old had the maturity and understanding to make their own decision and agreed to the information being given to the mother. The name of the teacher was included in the notes without redaction because 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 16-year old decided against disclosure to her mother.

The doctor decided that it would not go against the best interests of the youngest child to disclose their records to the mother.

The practice then checked through the two sets of records (for the six- and 10-year olds) to remove the address and review for any information about the father (and other third parties), and anything that might cause serious harm. The doctor had no other concerns, so those two sets of records were then disclosed to the mother.

In 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 30/01/2024. 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.