When dealing with a child’s medical information, health care providers often find themselves in the middle of separated, divorced and feuding parents. This raises issues about which parent has the right to access their child’s medical records.
There are legal and practical considerations that need to be taken into consideration when releasing a child’s medical information to a parent or guardian.
The law
Under the Family Law Act 1975, parents and guardians have a right to receive information about medical treatment which has been or is intended to be, provided to their child. Unreasonably denying a parent or guardian’s request for access to their child’s medical records may lead to a complaint to the Office of the Australian Information Commissioner.
Other considerations
Whilst the prima facie position under the law is that both parents have the right to access their child’s medical records, a health care provider should also consider the following:
- Is there any parenting or Court order issued by the Family Court?
Where there has been a clear breakdown of a relationship, it is good practice to ask whether there is a Court order regarding custody and care arrangements. If there is a Court order, request a copy and have that order included in the child’s medical records for future reference.
Although very rare, the Court order may remove a parent or guardian’s right to access their child’s medical records. If this type of an order has been made, the records should not be provided to the parent whose rights have been removed.
- On what basis can access be refused?
A health care provider can refuse a request for access to medical records based on the health, safety and privacy of the individual or when a Court order specifically prohibits access to the records. A mere suspicion that the parent has an ulterior motive for requesting access to the child’s health information is not grounds for refusal.
A child’s medical records, or part of those records, do not need to be provided to a parent if:
- Access to the records would pose a serious threat to the life, health or safety or the public or an individual; and/or
- Access would unreasonably impact another person’s privacy; and/or
- Access is not in the best interests of the child.
It may be possible to address the risk posed from disclosing a child’s records by redacting parts of the record or providing a summary of treatment and this is the approach that should be taken rather than refusing the request entirely.
- Does the child have a say in whether the records should be disclosed?
The Privacy Act 1988 does not set an age at which a person under 18 is considered capable of making decisions about their personal information. As a general principle, a young person is able to give consent if she or he has sufficient understanding and maturity to understand what is being disclosed.1
If, based on their maturity and understanding, a young person is able to make decisions regarding medical treatment and wishes for their records to remain confidential, a doctor much respect and maintain that confidentiality.2 Exceptions to the duty of confidentiality and privacy include emergency situations, reporting of certain diseases, where required by Court order or reporting of a risk of harm or neglect to a child.
Should a child’s medical records be provided to a parent?
Generally, yes. But, as always, there are exceptions that need to be considered. Should a health care provider require further information or clarification in relation to any specific request for records they should contact their legal department or Medical Defence Organisation.
This article was written by Kylie Agland, Partner and Antonia Quinlivan, Associate.
P: +61 2 9334 8615
E: kagland@hwle.com.au
1 Office of the Federal Privacy Commissioner, Guidelines to the National Privacy Principles (2001), 21.
2 Submissions to the Office of the Privacy Commissioner Review of the Private Sector Provision of the Privacy Act 1988, 21 December 2004, 21.