In most situations where two parents share parental responsibility for a child, they will both be entitled to up-to-date medical information about that child; however, there are some exceptions to this. It depends on the age of the child concerned. Furthermore, for some medical decisions, there is a duty to inform the other parent, for other decisions there is a duty to consult, and major decisions should be taken jointly. There is case-law on this point dealt with below.
What factors influence a parent’s right to withhold medical information from other parents?
In unique circumstances withholding medical information may be appropriate and authorised by a Court, but this would be rare. The starting point is that medical information pertaining to a child should be shared between two parents when both hold parental responsibility. When children become Gillick competent they can decline to share their own medical information with their parents.
Legal agreements
Some separated parents will enter into a parenting plan that addresses what should happen if a child is unwell whilst in the care of one parent. These plans can include how and when the other parent should be informed and how information such as the outcome of a doctor’s appointment should be shared. Parenting plans are not legally binding. Only Orders of the Court are legally binding and capable of enforcement. It is not usually necessary for a Court Order to address in detail what happens when a child is unwell or what should happen with regard to medical information, but on occasions where the Court needs to make decisions on such matters, it would typically form part of a Specific Issue Order.
A Court Order governing medical treatment and sharing of information may assist in situations where a child has specific medical needs or a long-term condition, and both parents spend time caring for the child. For example, in circumstances where both parents share responsibility for administering medications or monitoring symptoms, medical information must be shared promptly and as ordered or agreed upon to ensure the child’s needs are met and they are appropriately cared for.
Joint custody
If both parents hold parental responsibility, the starting point is that both parents will be entitled to medical information relating to their child, unless there is an Order to the contrary or specific circumstances. Generally, both parents with parental responsibility will be able to obtain copies of their child’s GP records directly from the GP if they wish, subject to the below regarding older children.
Communication expectations
The level and method of communication expected between parents can vary depending on several factors and there is a difference between communication to inform the other parent and communication to ask the other parent for permission or consent.
In 2004, in the case of A v A, the judge provided a list of decisions parents may have to make and the level of communication expected in relation to each such decision as a footnote to his judgement. The points relating to the medical needs and information of the child are as follows. This can provide a good starting point when thinking about what information should be provided, and when.
- Decisions that could be taken independently and without any consultation or notification to the other parent.
- Personal care for the children
- Continuance of medicine treatment prescribed by GP
- Decisions where one parent would always need to inform the other parent of the decision, but did not need to consult or take the other parent’s views into account.
- Medical treatment in an emergency
- Planned visits to the GP and the reasons for this
- Decisions that you would need to both inform and consult the other parent prior to making the decision.
- Planned medical and dental treatment
- Stopping medication prescribed for the children
Emergency situations
Anyone with parental responsibility has the right to make medical decisions about a child in an emergency. They can do so without consulting other people with parental responsibility to ensure that care is administered quickly.
That said, the other parent with parental responsibility would be entitled to an update about any medical intervention as soon as practicable. This is largely a practical point – a parent would not, and should not, delay calling the emergency services for their child and ensuring the child receives the necessary treatment. However, once the child is safe, there is an expectation that the other parent will be made aware of the situation as soon as is reasonably possible.
How can the child’s capacity to consent affect the parent’s withholding of medical information?
As children get older the dynamic in respect of their medical information shifts as they have their own rights and privacy expectations. A child with capacity has the right to decline to share their medical information with their parents. There is not a specific age at which a child would be deemed to have the capacity to make this decision and there are a number of factors that would be considered.
In medicine ‘Gillick Competency’ is used as a means of assessing if a child is capable of making their own medical decisions and this is a useful benchmark to consider when thinking about sharing a child’s medical information. For example, if a child is Gillick Competent, they are likely able to object to their medical information being shared. This includes consideration of:
- the child’s age, maturity and mental capacity;
- their understanding of the issue and what it involves – including advantages, disadvantages and potential long-term impact;
- their understanding of the risks, implications and consequences that may arise from their decision;
- how well they understand any advice or information they have been given;
- their understanding of any alternative options, if available; and
- their ability to explain a rationale around their reasoning and decision-making.
Rayden Solicitors can advise in relation to Parental Responsibility and Co-parenting disputes. If you have any questions regarding this topic please do not hesitate to contact us.
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