Parental Responsibility, Access to Children’s Medical Records and Parental Disputes.
- Parental responsibility refers to the rights, duties, powers and responsibilities that most parents have in respect of their children.
- Parental responsibility includes the right of parents to consent to treatment on behalf of their children, provided the treatment is in the interests of the child.
- Those with parental responsibility have a statutory right to apply for access to their children’s health records, although if the child is capable of giving consent, he or she must consent to the access
- Competent children can decide many aspects of their care for themselves.
- Where doctors believe that parental decisions are not in the best interests of the child, it may be necessary to seek a view from the courts, whilst meanwhile only providing emergency treatment that is essential to preserve life or prevent serious deterioration.
- Parental responsibility is afforded not only to parents, however, and not all parents have parental responsibility, despite arguably having equal moral rights to make decisions for their children where they have been equally involved in their care.
Who possesses parental responsibility?
The law in relation to parental responsibility has recently been revised. For a child whose birth was registered from 15th April 2002 in Northern Ireland, 1st December 2003 in England and Wales and 4th May 2006 in Scotland, both of the child's parents have parental responsibility if they are registered on the child's birth certificate.
Throughout the United Kingdom, a mother automatically acquires parental responsibility at birth. However, the acquisition of parental responsibility by a father varies according to where and when the child's birth was registered:
- For births registered in England, Wales or Northern Ireland
A father acquires parental responsibility if he is married to the mother at the time of the child's birth or subsequently. An unmarried father will acquire parental responsibility if he is recorded on the child's birth certificate (at registration or upon re-registration) from 1st December 2003 in England or Wales and from 15th April 2002 in Northern Ireland.
- For births registered in Scotland
A father acquires parental responsibility if he is married to the mother at the time of the child's conception or subsequently. An unmarried father will acquire parental responsibility if he is recorded on the child's birth certificate (at registration or upon re-registration) from 4th May 2006.
- For births registered outside the United Kingdom?The above rules for the UK country where the child resides apply.
An unmarried father, whose child's birth was registered before the dates mentioned above, or afterwards if he is not recorded on the child's birth certificate, does not have parental responsibility even if he has lived with the mother for a long time. However, the father can acquire parental responsibility by way of a court registered parental responsibility agreement with the mother or by obtaining a parental responsibility order or a residence order from the courts. Married step-parents and registered civil partners can acquire parental responsibility in the same ways. Parental responsibility awarded by a court can only be removed by a court.
Parents do not lose parental responsibility if they divorce – neither can a separated or divorced parent relinquish parental responsibility. This is true even if the parent without custody does not have contact with the child and does not make any financial contribution.
Other people can also acquire parental responsibility for a child. A testamentary guardian will acquire parental responsibility if no one with parental responsibility survives the testator. A guardian appointed by a court will also acquire parental responsibility. When a child is adopted, the adoptive parents are the child's legal parents and automatically acquire parental responsibility. A local authority acquires parental responsibility (shared with anyone else with parental responsibility) while the child is subject to a care or supervision order. Foster parents rarely have parental responsibility. For a child born under a surrogacy arrangement, parental responsibility will lie with the surrogate mother (and husband if married) until the intended parents either (a) obtain a parental order from a court under the Human Fertilisation and Embryology Act 1990 or (b) adopt the child.
In England, Wales and Northern Ireland, parental responsibilities may be exercised until a young person reaches 18 years. In Scotland, only the aspect of parental responsibilities concerned with the giving of “guidance”1 endures until 18 years, guidance meaning the provision of advice. The rest is lost when the young person reaches 16 years.
Disputes between parents can be difficult for everybody involved in the child’s care. Health professionals must take care to concern themselves only with the welfare of the child and to avoid being drawn into extraneous matters such as marital disputes. Discussion aimed at reaching consensus should be attempted.
The legal definition of a child is 0 to 18 years of age; however young people may be able to make independent decisions from as young as 12, depending on the circumstances. Section 11 of the Children Act 2004 places a statutory duty on the NHS to safeguard and promote the welfare of children. The Victoria Climbie Enquiry Report 2003 (9.104) stresses the importance of GP registration for every child. It sets out the importance of knowing the identity of those registering the child and their relationship to that child.
Where parents are separated and one of them applies for access to the medical record, doctors are under no obligation to inform the other parent, although they may consider doing so if they believe it to be in the child’s best interests. Parents have equal responsibility irrespective of whether the child lives with them unless there is clear guidance from the courts to the contrary.
What if parents disagree on which address to use for registration?
You should encourage the parents to discuss the issue between themselves try to reach a consensus. Depending on the age of the children but you may wish to consider if they are competent to contribute to any decisions relating to their registration.
From a practical point of view it makes sense for the primary address registered to be that at which the children spend most of their time. This makes it easier for the practice and other healthcare professionals to contact the child/parent should an urgent matter arise. It may be possible to record a secondary address and contact details in the notes, highlighting that the child spends some part of the week residing at this alternative address.
Obviously if either parents address is outside of your practice boundary you could use this as a reason for not using that address.
Another question you may like to ask is who is most likely to be bringing the child to the surgery or take them to outpatient appointments etc?
We are often asked for advice about the treatment of children and young people and the disclosure to parents of sensitive data relating to children and young people. Young people may fear seeking medical help if they do not trust that consultations will be confidential. Parents may become angry if they do not understand the GP's legal and professional duties relating to the treatment and confidentiality.
See also GMC 0-18 years
BMA Guidance on the subject states quite clearly that 'Both of a child's legal parents have parental responsibility if they were married at the time of the child's conception or at some time thereafter.
It is important to remember that even quite young children may be 'Gillick competent' see Confidentiality - Children and therefore may have legal capacity to consent or dissent to disclosure of their confidential medical records. In addition, you must always take into account your legal and professional obligation to act at all times in the child's best interests.
In a contentious divorce situation it would be worth checking with your medical defence organisation if there is any doubt about the wisdom of providing access to the medical records.
Acquired parental responsibility
* An unmarried father can acquire parental responsibility by;
- applying for and getting a Residence order
- applying to the court for a Parental Responsibility order
- making a parental responsibility agreement (in a set procedure) with the mother
- being appointed the child's guardian (once the appointment takes effect)
- subsequently marrying the mother of the child.
Step-parents do not acquire parental responsibility on marriage, but they do have a responsibility to safeguard the welfare of any step-children in their care, and are responsible for the maintenance of a step-child where a marriage means the step-child is a "child of the family." (ie a child who has been treated as a member of the family.
A step-parent may acquire parental responsibility by:
- obtaining a Residence order
- adopting the child.