Children's care and separated parents

• The best interests of the child should be paramount at all times.
• Both parents have equal rights to request access to their child’s medical records unless there is a court order to the contrary.
• Either parent can consent to treatment but if a dispute arises, parents should resolve it between themselves, or through the Family Court of Australia process if necessary.

There may be difficulties for you in delivering care to a child when their parents are separated. You may be placed in the middle of a disagreement about how to manage the child’s treatment, or there may be questions about access to medical records and other information relating to the child.

Irrespective of the nature of their relationship, both parents retain their individual rights. This means that either parent can consent to treatment and request access to their child’s medical information. The two main exceptions to this are:

• a court order to the contrary
• if the child has decision-making capacity (a mature minor).

Parenting orders

In some rare cases the court may take away some or all of a parent’s rights and responsibilities, for various reasons. This would always be documented in a court order. Usually, the parent who retains their rights  will ensure the practice is aware of this information to protect their child’s interests. If you are aware parenting orders exist, ask for a copy and keep them in the child’s medical records. To ensure other staff are aware that court orders are in place, ‘tag’ the medical record with an alert easily seen by them.

If you are unfamiliar with the family, ask either parent if parenting orders exist and document this in your notes. If a new family comes to the practice and the parents are separated or divorced, it might help to have an early discussion with the parents about how to deal with these situations and document this, and ensure the record is tagged with an alert for other staff.

Child as a mature minor

If a child is considered mature enough to make their own decision, parents no longer make decisions on behalf of the child and cannot access the child’s health information or medical records without the child’s consent. There is no set age when this occurs as it depends on the child, the decision being made and your assessment of their ability to make the decision.

More information on this issue can be found in our factsheet on children and consent. 

 Sometimes a parent may request treatment you know the other parent opposes, for example vaccinations. We recommend you advise the parents to resolve the issue between themselves. In many cases, the parents come to an agreement after further discussion. If not, it may be necessary for them to obtain legal advice and perhaps involve the Family Court for a resolution. The court will determine the issues based on what is in the best interest of the child and make orders. You can then rely on those court orders regarding the treatment.

Sometimes you may treat a child with one parent’s consent and later become aware of the contrary views of the other parent. It is legal to provide treatment on the basis of one parent’s consent, but you may have to justify your position after the event in response to a complaint.

Legally, each parent can have access to the child’s medical records. However, there are some factors to consider. The first step is to ask the parent requesting access to the records to put the request in writing.

Identity

You need to confirm the identity of the person making the request. In some cases the parent may be familiar to you. If not, we recommend a three-point ID check, such as name, date of birth and address. A current driver's licence covers all of these and has the added advantage of a photo.

Privacy

Sometimes information in a child’s records may be relevant to the privacy of one of the parents. For example, the address of the guardian parent in a domestic violence situation or information about a parent’s mental health history. Keep this in mind when entering information in a child’s medical records.

There may also be information about the child that poses a risk to them if released to a parent, such as their relationship with or feelings about the requesting parent.

In these cases, the general exemption under the privacy legislation should be considered. If providing information poses a serious threat to the life, health or safety of the child (or someone else), you should withhold this information.

If one parent makes a request for the child’s medical record, it is important to check the records before providing information to ensure privacy is maintained. If the risk of disclosing a child’s records can be addressed by redacting parts of the record, or providing a summary of treatment, this should be done rather than not providing any information.

If doing this, you should explain that the information is incomplete and why you have not provided certain information. Depending on the circumstances and your location, you should follow the framework in the relevant privacy legislation when responding to the request for access. If you deny access to a child’s information without a valid reason, you may face a complaint. Please contact us for advice if you need assistance.

Notifying the other parent

You are not obliged to tell the other parent about a request to access the child's records. You may choose to do so, or this may be covered in your practice policy. If you decide to notify the other parent about the request, you should also let the requesting parent know that you’re doing this.

If you were treating the entire family before the relationship broke down, it may be difficult to continue to do so. Conflicts can arise when parents attempt to convince the doctor to support their cause. It’s very important to remain neutral and to understand your role is to assist your patient to maintain good health.

If the feuding parents are both your patients and you believe the situation is placing you in a position of conflict, we recommend you cease treating both parents (or continue treating one parent if the other doesn’t object). Make it clear to the parents that you will give priority to the health of the child.

Managing issues surrounding separated parents 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.

For medico-legal advice, please contact us here, or call 1800 128 268, 24/7 in emergencies.