Privacy breaches can cause anxiety and distress for healthcare practitioners and patients. As an eye care professional, it is important to be aware of privacy issues involving children and parents – particularly where parents are separated or divorced.
Parents generally have the legal right to access health information about their child until the child is sufficiently mature or competent to make decisions about their own healthcare.
The legal test for when a child is considered competent is when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. (You might see this test referred to as the ‘mature minor’ test or ‘Gillick competence’ after a case in the United Kingdom that decided this issue).
As a healthcare practitioner, you need to assess a child’s maturity in each situation. Children may achieve the required level of maturity at different ages, and their ability to understand will also depend on the complexity and implications of the procedure or treatment. (See Avant’s factsheet: Children and consent.)
Once a child is mature enough to make decisions about their own treatment, their consent is sufficient. This also means it is not appropriate to contact their parents or share information about the child’s healthcare without the child’s consent. To do so would be a breach of their privacy and your confidentiality obligations.
If you believe it would be in the child’s best interests to inform their parent(s) about their condition or treatment plans, you should discuss this with the child.
Separated Parents and Parenting Orders
Until the child has reached maturity, the law says that each of their parents has parental responsibility. The parents’ separation or remarriage does not usually change this. However, the Family Court may make parenting orders that alter parental responsibility and the details would be spelled out in the court order.
If the court has made parenting orders restricting one parent’s access to, or responsibility for a child, the guardian parent will usually advise healthcare practitioners. If you are aware of a family dispute, it is appropriate to ask if there are orders that you should be aware of.
If there are parenting orders, ask for a copy of the current orders and keep the copy on file.
If there are orders restricting access to one parent only, you must not share the child’s information with the other parent unless specific consent is obtained. Be careful that your systems and processes alert staff of the need for privacy so you do not inadvertently share information.
Before you share the child’s records, be sensitive to any family dispute.
Disagreements Between Parents
Unless you are informed of an issue, you can assume that both parents are responsible for the care of a child who has not yet reached maturity. This means both parents are entitled to access the child’s medical records.
However, if a parent asks for a child’s records, you need to satisfy yourself of the identity of the person making the request. If you don’t know the parent, we recommend using a three-point identity check (name, address, and date of birth) such as asking for a current driver’s licence. If you do not know the person, you should request identification that establishes their relationship to the child (e.g., a birth certificate, Medicare card, or custody orders identifying both the parent and the child). If they don’t offer to provide a copy of current custody orders, you should request that a copy be provided before releasing information.
Before you share the child’s records, be sensitive to any family dispute. It is a good idea to review the records before providing access to make sure there is no information in the record that would pose a risk to the child or the other parent, or breach the other parent’s privacy. You may need to redact information (such as address details if there is a risk of family violence or information about the other parent’s health condition). Depending on the circumstances, it may be appropriate to provide a summary of the child’s treatment.
Under privacy legislation, you are entitled to withhold information if you believe providing it would pose a risk to any person’s life, health or safety.
You are not legally obliged to inform the other parent of the request to access the child’s records, however, generally we advise informing the parent making a request that you will be doing so as a matter of courtesy.
Managing Difficult Situations
Managing privacy issues in the context of separated parents or family disputes can be complex. We recommend you establish a procedure on how to manage these issues and ensure all practice staff are aware of the process.
Denying access to the child’s information without a valid reason or breaching privacy can lead to privacy complaints. Seek advice from your medical defence organisation if you find yourself in a difficult situation or you are unsure of how to proceed.
Further Reading
Avant – Privacy: the essentials.
Avant – Understanding privacy and security risks (members only).
Avant – Children’s care and separated parents, available at: avant.org.au/resources/childrens-care-and-separated-parents.
Avant – Children and consent.
Avant – Separated parents and the mature minor.
Office of the Privacy Commissioner – Parents’ right to know: Children’s right to privacy, available at: privacy.org.nz/blog/parents-right-to-know-childrens-right-to-privacy.
Office of the Privacy Commissioner – Case Note 235239 [2013] NZPrivCmr 1: Dealing with child’s health information when parents are separated.
Medical Protection Society – Releasing children’s records.
New Zealand Medical Indemnity Insurance – Requests for disclosure of a child’s health information..
Georgie Haysom BSc LLB (Hons) LLM (Bioethics) GAICD is General Manager, Advocacy Education and Research, at Avant, Australia’s largest medical indemnity insurer.
