This article was first published in 'New Zealand Doctor' 12/10/2022

When parents split up, this can sometimes create a fraught situation for agencies involved in providing care and services to their children, and GPs are no exception. Which parent has the right to see their child’s medical records? Only the custodial parent? What should a GP practice do if one parent doesn’t want the other to have access, or the GP is concerned about providing it? Office of the Privacy Commissioner Senior Investigator Lynley Cahill explains the answers to curly questions affecting GPs managing requests from parents for their children’s health information.

It is fair to say that many GP practices struggle at times when deciding whether to share personal health information. Many of the complaints this Office receives about GP practices involve a parent complaining that the practice has refused to provide them with their child’s medical records.

The Health Information Privacy Code provides the pathway for health agencies to respond to any request for health information, including those made by a parent for their child’s information. A GP practice, and any medical center, is a health agency. This means it is required to comply with the Code.

In the case of a child under 16 years old, the law explains that their parent or guardian is entitled to make a request for information, and the practice needs to treat this as if it were a request from the child themselves.

The starting point if you receive a request from a parent or guardian for their child’s health information, and the child is under 16 years of age, is that the parent or guardian is entitled to that information – regardless of whether, for example, they are the custodial parent or the parent who enrolled the child at the practice.

This means you cannot refuse to provide a child’s health information only on the basis that the request was made by a parent who doesn’t have custody of that child.

An agency may only refuse the request if it believes one of the following applies:

• Disclosing the information would go against the child’s interests;
• It has reasonable grounds for believing that the child does not or would not wish the information to be disclosed; or
• There would be good grounds for withholding the information under Part 4 of the Privacy Act.

Let’s go over some scenarios.  

Scenario 1: Be careful to only include the right person’s information

A parent contacts your practice, seeking their seven-year-old son’s health information. That parent did not enrol their son in the practice, and you are aware they have split up with the other parent.

You don’t have concerns about providing the notes but notice there is some information on the son’s notes about the other parent. As a parent only has the right to request information about their child, you could remove the information about the other parent from the notes, before providing them to the requesting parent. Of course, before providing a child’s information to either parent, you will want to make sure that you are satisfied of the identity of the requestor.

Scenario 2: Consider the interests of the child

A parent contacts your practice, seeking their 12-year-old daughter’s health information. There are notes within the health information, which indicate the relationship is estranged and the daughter has made certain accusations about the requesting parent. Also included in the notes is sensitive information about the daughter who is going through puberty and her struggles with that.

You might want to consider whether disclosing the child’s health information to the requesting parent in these circumstances would be contrary to her interests, or whether there would be reasonable grounds for believing that the child does not or would not want the information to be disclosed. At 12, the child is likely to have a view on the issue.

Scenario 3: Managing parental conflicts

A parent contacts your practice, seeking their four-year-old child’s health information. The other parent has indicated that they have separated, and they have told you that they don’t want their ex-partner to be provided with the child’s information.

Remember, this is insufficient reason alone to decline to provide it to the requesting parent.

You may want to explain to the other parent that you are required to provide the notes to a requesting parent under the Code - regardless of the other parent’s wishes - unless one of the specified grounds of refusal applies.

Some GP practices worry about telling the other parent about the request, but you are allowed to undertake such consultation on the request as is necessary to respond to it. You should only tell the other parent about the request if you need to understand whether there are any concerns and if these might form a proper basis for refusal to provide the notes. 

If an agency declines to provide a child’s notes to their parent, they must also advise the parent of their right to complain to the Office of the Privacy Commissioner. However, if you are notified that we have received a complaint about you, don’t panic.

We don’t seek to substitute our judgement for yours; after all, you know your patient best. What we will need to understand is why you declined the request, and which part of the Code or Privacy Act you relied on to do so.  We’re always happy to talk through our process so if you receive a notification from us, just contact one of our friendly investigators.