Your guide to navigating family disputes

Why are court orders important?

In the absence of court orders to the contrary, it’s generally accepted that either parent can consent to treatment or access their child’s medical record. If your patient is the subject of a court order, it’s important that the practice has a copy of the most recent orders on file. The court orders most often seen in family disputes are Parenting Orders (Family Court), or Violence or Misconduct Restraining Orders. The court orders usually bind the parties to the dispute, not third parties such as doctors.

What if I receive a request for a child’s notes from a parent I’ve never met?

You are not required to respond to a request for records immediately. Ask the parent to put the request in writing, along with proof of ID and any relevant court orders. Contact the parent who usually accompanies the child and ask if there are any court orders preventing access. If there’s no legal reason why the other parent should not access the notes, and none of the exceptions under the privacy legislation apply, the request can be processed. Remember that in cases of significant family violence, the custodial parent may be in hiding and a breach of confidentiality could place the family at risk of harm.

How can I avoid becoming overly involved?

Family disputes may involve domestic violence and severe mental anguish, but it’s important that you maintain your clinical focus. Becoming overly involved, or clearly advocating for one party over another, can diminish the value of your opinion. Avoid making subjective comments or personal observations in your notes – as the notes may be subpoenaed and produced in court. Maintain factual notes and make it clear when you’re quoting others. 

Should I continue seeing both parents and the children in the event of a separation?

This can become really difficult, particularly where there are allegations of domestic violence or child abuse. Consider transferring the care of one of the parents to a colleague or a new practice. It can be difficult to remember who told you what information, and this can lead to inadvertent breaches of confidentiality and trust. You may prefer to have this discussion with the parent who doesn’t normally attend with the children, as it may be less disruptive to transfer the care of only one patient.

One parent is being obstructive – what can I do?

Parents may have different ideas about a number of issues including the administration of stimulant or anti-depressant medication or vaccination, and counselling. Your role is to act in the best interests of the child – but if one parent refuses to administer medications when the child is in their care, it may make the clinical situation worse. Try and engage with both parents if you feel it might improve the situation. If you’re at an impasse, the family may need to return to the Family Court for further orders. Although doctors are reluctant to end the doctor– patient relationship – which may feel like punishing the child for the actions of the parents – sometimes the relationship becomes so toxic that the best option is to transfer care.

What are my mandatory reporting obligations?

Mandatory reporting requirements are different in each state and territory, so familiarise yourself with the criteria relevant to your location. Be mindful that reports to child protection can be used to influence a custody outcome. Use your clinical expertise to determine when a report should be made. In the event of an allegation of child sexual abuse, seek guidance from the hospital-based child protection unit in your state or territory. You can discuss the matter over the phone or make a referral to the child protection unit where trained staff can conduct an interview or perform a forensic examination if necessary.

Top 5 tips

1. Ensure you are aware of current court orders, and how they might affect consent for treatment, access to notes, etc.
2. Suggest the parents bring in an exercise book into which you can add a copy of the notes after each consultation. The notebook goes with the child, which means all parties are kept up to date and remain focused on the best interests of the child.
3. Familiarise yourself with the mandatory child abuse reporting requirements in your state, as well as the OAIC’s Guide to Health Privacy, the Medical Board’s Code of Conduct, and the concept of Gillick competence which may apply to older children.
4. When writing your notes, remember there’s a good chance that your notes will be subpoenaed and read out in court. 
5. You are not legally required to provide reports or letters – but if you choose to do so, you can find guidance in our articles on writing medico-legal reports and writing letters of support on our website.

 Case studies: family disputes

• Managing restraining orders 

Dr Patel was treating mum, dad and two children for several years. The practice didn’t realise anything was amiss in the family until one day a loud argument erupted in the waiting room.

“You can’t be here! The police said you must stay at least 100m away from me and the kids,” mum screamed, shielding the children.

“But I have an appointment to see the doctor,” dad pleaded with the receptionist.

The practice manager took the mum and two children into another room to find out what was going on. Mum said she had been granted a Family Violence Restraining Order (FVRO) and produced a copy for inclusion in the notes.

While dad was in with the doctor, the mum and children were asked to come back later in the day. After dad’s consultation ended, the practice manager asked dad to wait in reception while she spoke to Dr Patel. They agreed on a plan, and invited dad back in to discuss the situation.

Dr Patel explained that, in view of the FVRO, it would be impossible to coordinate appointments to ensure dad would never cross paths with his wife and children. Dad was assured the practice was not “taking sides” and he accepted the practice manager’s suggestion to change to another practice to prevent any further potential breaches of the FVRO.

• Misuse of medical certificates in family disputes

Dr Wood was treating a 12-year-old child who had moved to the area six months prior. Dad always came in with the child, and he reported that she became increasingly anxious immediately before handover to mum, who had custody of the child every second weekend. When questioned about this, the child said very little.

Dad came on his own the Friday before handover to mum and insisted that Dr Wood write a certificate to say the child’s severe anxiety prevented her from staying at mum’s house.

Unsure of what to do, Dr Wood called our Medico-legal Advisory Service for immediate advice.

We advised him to decline the request for a medical certificate on the basis that he was unable to assess the child – and to do so without a clinical basis would interfere with existing court orders. He also requested a copy of the most up-to-date court orders to guide further decisions regarding the child.

Dr Wood referred the child to a psychologist, and advised dad to seek advice from the Family Court if he felt the current orders were inadequate. He also informed dad that he would not be issuing medical certificates unless he thought it was clinically appropriate to do so.

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