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The father of a seven year old boy at the centre of a custody battle with his former wife complained to us because he was refused copies of his son’s medical records.

The father requested the health records from his son’s doctor. The boy had been seeing the doctor for several years because he suffered from food allergies. The father said he had little confidence he was getting all the information he needed from his former wife to ensure his son’s welfare and safety.

But the doctor refused to give copies of the boy’s health information to the father. The doctor said he did not have to provide medical information in cases involving custody disputes and he asked the father to provide court documents to show he was the boy’s legal guardian.

The doctor also said did not have to release the health information unless it was in the best interests of the child. He was not convinced that giving the father the medical records was in the child’s best interests.

The boy’s father responded by explaining that he had custody of the boy at least one day and one night per week. He said that during these periods, he needed to provide meals that did not trigger his son’s allergies. He was applying to the Family Court to increase the amount of time the boy would have in his care. Without the medical information, he would be unable to explain to the court that he was aware of the details and severity of the boy’s allergies and his necessary dietary requirements.

Section 22F of the Health Act

The father made a complaint to our office on behalf of his son. Under section 22F of the Health Act, a parent or guardian is considered to be the representative of their child until the child turns 16. A representative has a limited right to access their child’s health information. Agencies can refuse to give access where giving access would be against the child’s wishes or interests or where another withholding ground applies, for instance that giving access would:

  • endanger a person's safety
  • prevent detection and investigation of criminal offences
  • involve an unwarranted breach of someone else's privacy.

We contacted the doctor and explained we would need to see the medical information and the reasons why it was being withheld from the father.

The doctor said he was willing to provide the information to the father but he had concerns about how the information might be used in the custody battle.

The doctor said he was willing to meet with the father at the medical clinic. He would then be able to explain the notes in person before releasing them. The boy’s mother agreed to cover the cost of the appointment, if needed. 

We conveyed the doctor’s offer to the boy’s father. We informed him that if we had not heard back from him by a particular date, we would assume the meeting had gone ahead. At a later date, we concluded the father no longer wished to pursue the matter because he had received his son’s health information. We then closed the file.

October 2015

Son’s medical records – request – refusal – custody dispute – right of access to child’s health information – Health Information Privacy Code 1994; rule 6