Physicians frequently receive requests for copies of children's medical records in highly charged situations, including acrimonious matrimonial or separation proceedings. While requests may come from various individuals and organizations (e.g. a child protection authority), the request most often comes from a parent.
If a parent asks you to disclose information about their child, you must consider whether you are the custodian of the requested records, and if so, whether the parent is entitled to the information.
Requests from non-parents
In some situations, the person with decision-making responsibility for the child might be someone other than the child’s parent (e.g. a grandparent, aunt, or uncle). This authority can be granted through a guardianship order, parenting order, or legislation. These individuals also have a right of access to the child’s health information. If in doubt about a non-parent’s right of access, physicians should request a copy of any guardianship order, parenting order, or other legal authority.
Access at a glance
Parents with decision-making responsibility (custody) have full access rights to their children's medical records except where the children have the capacity to make a decision about the collection, use, and disclosure of their medical records.
Parents with parenting time rights (access) are entitled to the same information as the custodial parent unless the court orders otherwise.
Generally, parents with no parenting time (access) rights are not entitled to medical information, except if the other parent (or capable child) consents.
If in doubt about a parent’s right of access, you should request a copy of any parenting or separation agreement or court order pertaining to access by that parent. If there is a child abuse investigation, you could seek direction from the child protection authority with respect to a parent's right of access. It is important to keep a copy of any agreements or orders, and to keep records of discussions you may have related to access to a minor patient’s personal health information.
Case scenario
You are the physician for two children, ages four and six, who live with their mother and visit their father on weekends and some evenings. The mother has decision-making responsibility and the father has parenting time rights. The parents communicate poorly, and the father feels the mother has not kept him informed about the children's health and medications. He has requested a copy of their records. The mother would prefer that the father not be given any information because she believes he will misuse the information in an attempt to obtain decision-making authority.
Question: Is the father entitled to medical information about his children?
Answer: Yes, as a parent with parenting time rights, the father is entitled to this information. If there is any doubt about the father's right to access the children’s records, you should ask for a copy of any existing parenting or separation agreement or court order.
Question: Is the mother's consent required for release of the children's information to the father?
Answer: No. Since the father is entitled to the information, consent of the mother is not required.
Question: On one occasion, the mother discussed her personal health issues with you and these were recorded in the child's chart. Is the father entitled to this information?
Answer: No. References in the child's medical record about confidential discussions with the mother concerning her own health, and which are irrelevant to the child's care, should be deleted from the copy provided to the father.
Question: As the physician, do you have to provide a copy of the record, or alternatively, can you simply discuss the health of the children with the father?
Answer: Although the father is entitled to a copy of the record, you can offer to discuss the children's health if that would satisfy the father's request.
Can a child control access to their own medical records?
A child (or minor) is an individual under the age of majority as defined by provincial/territorial legislation.
Mature minors are minors with the capacity to consent to treatment. The concept of "mature minor" is not applicable in Québec, where the law specifically defines the age of consent (generally 14 years old) and the circumstances in which a minor and/or their parents can consent to the release of the minor's medical records.
Privacy legislation in each jurisdiction will govern whether children may assume control over the disclosure of their personal health information. Typically, children who are capable of consenting to treatment will also have the capacity to control their personal health information. These children should understand what information will be released, and to whom, and should be capable of understanding the consequences of disclosing or refusing to disclose their personal health information.
If the child is capable of consenting to the disclosure of the information, you should generally not give the parents any confidential medical information without the child’s consent.1 You can encourage or support your adolescent patients in discussing problems with their parents, depending on the circumstances, and if it is in their best interests.
In situations where a child is at serious risk – because they might harm themselves or for other reasons – privacy legislation generally permits you to inform the parents, the police, or a child protection authority. The exceptions are worded differently in each jurisdiction, so it is important to familiarize yourself with the specific wording in your jurisdiction.
The bottom line
- When parents ask you to disclose information about their child, you must consider whether the parent is entitled to the information.
- You should be aware of whether the parent has decision-making responsibility, parenting-time rights, or no parental rights.
- If in doubt about a parent’s right of access, request a copy of any parenting or separation agreement and/or court order pertaining to access by that parent. Contact us if you have questions about the agreement or the court order.
- Generally, the records of patients who are mature minors should not be released without the minor’s consent.
If you have questions about a child's capacity to control access to their medical record, or about parental rights of access, contact us.
Additional Reading
Notes
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In some jurisdictions, the relevant privacy legislation provides parents with a right of access to their children’s personal health information, even if the child is deemed capable of controlling their personal health information but only where the child has not expressed a contrary intention (e.g. Ontario).
