Piggy in the Middle

Case history

You have looked after five-year-old Tom since birth. He has always been brought to consultations by his mother. You are aware that Tom’s parents are separated and going through an acrimonious divorce. Your Practice Manager receives a phone call from Tom’s father demanding a complete copy of Tom’s medical records, citing your obligations under the Privacy Act 1988.

Medico-legal issues

Access to the medical records of children who do not have capacity to make their own health decisions

In general terms, either parent can obtain a copy of their child's medical records or information about their health care, unless there is an exception to access under the Privacy Act 1988. The exceptions that may apply include the following:

• Denying access is required or authorised by law or a court/tribunal order – e.g. a court order may grant custody and access to health information to one parent only.
• Giving access would pose a serious threat to the life, health or safety of any individual – a serious threat is one that poses a significant danger to an individual(s) or the public, and includes harm to physical or mental health.
• Giving access would have an unreasonable impact on the privacy of other individuals – you should not give access to records which contain personal information about individual(s) other than the patient, where disclosing this information would have an unreasonable impact on the privacy of the other individual(s); e.g. the contact details of the other parent or information about the other parent’s illnesses.
• Giving access would be unlawful – e.g. this may apply if a notification has been made to the child protection services and the identity of the notifier needs to be protected.

In order to assess whether to provide access to the parent, you may need to contact the other parent to ask if any of the above exceptions apply. The bar to refuse access is high, so it is important to stress that the purpose of contacting the parent is not to seek their permission, but to ensure none of the exceptions apply.

If you refuse to provide access to the medical records, you must give a written response which sets out:

• your reason(s) for refusing to provide access – you do not have to provide reasons to the extent that this would be unreasonable given the grounds for refusal
• how they can make a complaint – your practice’s complaints process and/or details of the Office of the Australian Information Commissioner.

Access to the medical records of children and young persons who have capacity to make their own health decisions

If a young person under the age of 18 years is a “mature minor”, i.e. has the capacity to make their own decisions about medical treatment, then the young person’s permission must be sought in order to release their medical records to a parent.

Discussion

In this case, the Practice Manager advised Tom’s father to put his request in writing, and that the Practice would need to contact Tom’s mother to inform her of his request. Tom’s mother confirmed that none of the exceptions applied. The medical records were then provided to the father, following receipt of payment for the costs of printing the records.

Summary points

• Be wary of a request for a copy of a child’s medical records where the parents are separated or divorced, and ensure none of the exceptions to access apply – this may require contacting the other parent.
• Before providing a parent with a copy of their child's medical records, carefully review the records to ensure they do not contain information relating to another person.
• If you are unsure of how to proceed in a particular case, contact our Medico-legal Advisory Services team – you may be able to avoid becoming “piggy in the middle” of a dispute that should not involve you or your practice.

Dr Sara Bird
Manager, Medico-legal and Advisory Services
MDA National

You may also be interested in the recent WA Court ruling against parents’ refusal to consent to their child’s medical treatment – see our Medico-legal Blog post.