A General Practitioner (GP) recently contacted MIGA for advice in relation to a request from a mother for a full copy of her child’s health records held by the practice.

The GP was concerned she had not met the mother in person at any time as the father always brought the child into the practice for consultations.  The GP was also concerned about the release of the health records, as the records contained some sensitive information regarding the patient’s health conditions and social circumstances.

The child was quite young and not considered to be a “mature minor” or Gillick competent, i.e. the child was not competent to make decisions about her health care and provide consent to the release of her health information.

Suggested approach 
This is a relatively common scenario that confronts doctors, particularly where a minor’s parents have separated or divorced in acrimonious circumstances.

While each request must be considered on a case by case basis, the key question is whether the requesting person has the appropriate authority.  Normally, parents and guardians are considered to have sufficient authority to access records for children and others for whom they are responsible.

In this case, advice was provided to the GP as a first step, to obtain further information from the child’s mother and in particular to follow these steps:

  1. Ask the mother to put her request in writing, in accordance with the practice policy
  2. Ask the mother to confirm exactly which records were required
  3. Ask the mother to clarify why the records were required
  4. Ask the mother to confirm if there was a Court Order or parenting plan in place.

In situations involving separated or divorced parents, it is important to know the terms of any Court Order, including if the Order addresses responsibility for health care decisions or who can access information about the child.  It may be appropriate to liaise individually with both parents about a request by one of them.  There may also be issues of whether information can be provided if there is a risk of harm to the child in question, or others.
The best interests of the child must be the paramount consideration.

The outcome 
In this scenario, the mother ultimately made her request in writing, requested a full copy of the child’s medical records covering the preceding five years (including consultation notes, letters, test results and radiological reports) and indicated that the records were required for “Family Court purposes”.  A Court Order was produced, which was silent on the issue of health care and access to information.

As the child could not legally consent to the release/disclosure of her records, the GP had regard to two considerations in making her decision to release a copy of the records.

First, Australian Privacy Principle 6 which authorised the GP to release the child’s records to a responsible person to enable the provision of healthcare (or for compassionate reasons); and secondly, that there were in fact Court proceedings pending.

The GP advised the mother that she was not at liberty to disclose the records in circumstances where they were not required for the provision of health care pursuant to Australian Privacy Principle 6, and that the proper course was for the records to be produced to the Court in response to a Subpoena.  The response was accepted by the mother and the records were subsequently subpoenaed and produced to the Court by the GP.

Help is always at hand 
It is important to proceed with caution where there are privacy concerns.  A considered step by step approach should be taken.  If you are uncertain about a request for a child’s health records or if you would like further information about the Australian Privacy Principles, please contact the MIGA Claims & Legal Services department.  We are here to help.

Other resources

  1. AMA Guideline

    AMA: Ethical Guidelines for Doctors on Disclosing Medical Records to Third Parties 2010. Revised 2015

  2. MIGA Resource

    MIGA: Health records – releasing and withholding

  3. OAIC Draft business resource

    Disclosure of health information and impaired capacity

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