Confidentiality is key to the trust that children and young people need to have in their doctors. Without trust, children and young people might not give you important information.
Underlying principles
As set out in the GMC's guidance, you have the same duty of confidentiality to children and young people as to adults. This means that you should ask for the patient's consent (or the authority of someone with parental responsibility) before disclosing their identifiable information unless in exceptional circumstances.
Decisions about disclosure need to be taken carefully and the overriding consideration must always be the best interests of the child or young person.
Laws relating to children and young people vary across the UK. Get advice whenever you are not sure.
Sharing information without consent
Disclosure without consent is justified when:
- you judge that the disclosure is in the best interests of a child or young person who does not have the maturity or understanding to make a decision about disclosure
- there is an overriding public interest in the disclosure
- disclosure is required by law or ordered by a court.
Decisions about disclosure without consent are often nuanced and you need to be prepared to justify your decision, whether or not you disclose information. This can be particularly challenging if a child or young person has refused disclosure, in which case you should take their views into account but should disclose information if necessary to protect them, or someone else, from a risk of death or serious harm. Seek advice when needed and keep careful records of your decisions and reasons.
If you do decide to disclose information without consent, it should be the minimum necessary information for the purpose, disclosed promptly to an appropriate person or authority.
Occasionally, this will include sharing information with a parent when a child has refused. This may happen when you judge that the child does not have the capacity to make their own decision and you believe it is necessary in the child's best interests for the information to be shared.
Children and young people develop the mental capacity (maturity and understanding) to make their own disclosure decisions at their own pace. In England and Wales, children aged 16 and over can be presumed capable of consenting to medical treatment, and in the same way are usually considered able to agree to the release of their confidential information.
A child under 16 may be mature enough to understand what is involved in their proposed treatment. If so, they are also likely to be competent to make a decision about the extent to which information relating to that treatment can be provided to others, which may include their parents.
The position is different in Scotland, where a person aged 12 or over is presumed to be of sufficient age and maturity to be able to exercise their data protection rights, unless the contrary is shown.
Disclosures without consent for child protection
If you believe a child is the victim of abuse or neglect, you must promptly inform an appropriate person or statutory body to prevent further harm. The information you share should be restricted to what is reasonably necessary to achieve the object of child protection.
You should inform the child or young person (or in the case of children lacking competence, the authority of someone with parental responsibility - see more below) and ideally obtain their agreement unless that would be detrimental to the purpose of the disclosure or increase the risk of harm to the child. In which case, the minimum relevant information should be disclosed without delay.
If you believe disclosure is not in the child's best interests or you're uncertain about the risk, you should discuss it with an experienced colleague, such as a designated doctor for child protection.
Child safeguarding in England and Wales
The three safeguarding partners (the local authority, the Clinical Commissioning Group [CCG] and the chief of police) are responsible for coordinating the effective safeguarding and welfare of children locally.
If a child dies unexpectedly, the local authority and the CCG will hold a child death review and may call you to a meeting to discuss the case. We can advise you on how best to contribute to the process.
The death of a child in suspicious circumstances may result in a child death review under chapter 5 of Working together to safeguard children. Again, we can assist you if you're involved in an investigation after the death of a child in such circumstances.
In either case, you may need to disclose the deceased child's records, but care should be taken not to disclose the notes of other family members without their consent. In some circumstances, you may be justified in disclosing limited information about other family members.
Child safeguarding in Scotland
In Scotland, Child Protection Committees (CPCs) are responsible for multi-agency child protection policy, procedures, guidance and practice.
If a child dies unexpectedly, the death must be reported to the Crown Office and Procurator Fiscal Service (COPFS), and Police Scotland may investigate after appointing a child death senior investigating officer (CDSIO).
We can assist if you're involved in the investigation of such a death. Given that a collaborative and coordinated interagency approach is necessary, you may well need to disclose the medical records of the child in question. The safety of other children in the household will also need to be considered.
Disclosing records to parents
Young people with capacity have a right to access their own health information but should not be given access to information that would cause them serious harm or identify another person who has not consented.
If a young person with capacity agrees, or if the child lacks capacity and it would not go against their best interests to disclose to a parent, you can allow access (see more on parental responsibility below). You should not normally disclose information given to you by the child or young person in confidence, unless they agree.
We are commonly asked about disclosure of records to estranged parents of children and young people. Read our separate guide on children whose parents are separated and one of our latest cautionary tales involving a record request from an estranged father.
Parental responsibility
The biological mother of a child will automatically hold parental responsibility for the child, as will the father if he was married to the child's mother at the time of the child's birth.
Unmarried fathers named on the birth certificate will hold parental responsibility. There are other circumstances in which fathers can gain parental responsibility - members may wish to discuss more unusual cases with the MDU.
Read more in our guide to parental responsibility.
Members can contact us for individual advice at any time.
This page was correct at publication on 09/09/2022. 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.