The scene
A practice manager (PM) called the advice line having received a request for the records of two child patients, aged eight and 15.
The request had come from the patients' father, but the PM was concerned about disclosing the records. She knew that the parents were estranged, and the children did not share the father's address and did not seem to be living with him.
MDU advice
The adviser agreed that the practice manager was wise to be cautious. Although it is generally considered to be in a child's best interests for those who make decisions about them to have knowledge of their health, there were aspects of this request that needed to be clarified.
The adviser explained that while the delegation of decisions about disclosure may be given to the manager, ultimately the decisions to disclose remained the treating doctor's - and particularly when it was a complex situation, the PM might want to share the decision-making with them.
In this situation the adviser explained that the first issue to clarify was whether the father had any entitlement to see the records. He would have this if he had parental responsibility (PR), which would be the case if he was married to the mother at the time of the child's birth, or was unmarried but named on the child's birth certificate (for children born since 15 April 2002 in Northern Ireland, since 1 December 2003 in England and Wales and since 4 May 2006 in Scotland).
There are additional routes to PR, and if there was any uncertainty around this the practice could ask the father to provide evidence, either by means of relevant certificates or court documents or through his solicitor.
The next question was whether the child or young person consents to such a disclosure or lacks capacity to do so. In the case of the younger child, aged eight, it is unlikely they would have capacity to make this decision. However, at 15, the older child may well have the capacity to understand the decision, its pros and cons and to retain them and weigh them up in coming to a decision about whether to disclose to her father. In Scotland, anyone 12 or over is presumed to have such capacity.
In terms of the practicalities of determining if the child has capacity, the doctor responsible for their care may already know this. If not, it would be reasonable to revert to the father and explain that the doctor would need to speak to the patient to find out if they wanted to disclose the record and, as part of this, to assess their capacity.
Particularly in situations where there may be conflict between parents or those with PR, it's also essential to ensure that any decision to disclose does not go against the child's best interests. The doctor or other healthcare professionals within the practice may have knowledge of potential risks in this family, but if not, the mother herself could be asked whether there is any reason the father should not have information about the child.
It is important, however, to make clear that while the mother can express a view, she cannot veto a decision to disclose if the father does have PR. The GMC sets out its guidance in 0-18 years: guidance for all doctors, and the MDU offers its own advice on children whose parents are separated.
The adviser stressed that if the practice did make a disclosure, they should check they were not inadvertently including third-party information unless they had permission of that third party. This could be withheld under the Data Protection Act 2018.
Outcome
After the practice manager's conversation with the MDU's adviser, she discussed the case with the children's GP and was able to show him the MDU's guidance, outlined above. Having ascertained that her colleague believed the elder child did have capacity, the member was then confident to speak to the father.
She was able to confirm he had parental responsibility, but when she explained they would need to discuss with the elder child whether she agreed to having her records disclosed, the father withdrew his request to see them.
He still wanted to see the eight-year old's records, however, and the mother confirmed that while she didn't object, she did not want their address disclosed. This would be third-party information, and the practice was careful to redact it throughout the record before making the disclosure.
This dilemma is fictional but based on members' experiences and the types of calls we receive to our advice line.
This page was correct at publication on 29/06/2022. 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.