“I don't want Daddy to know” – Challenging a Court Order for disclosure
March 2008
What do you do when a young child you are treating does not want their parents to have access to confidential information in their medical records, and the court has made an order for disclosure?
A child under the age of 16 has just as much of a right to confidentiality as any other person. The fact that his (or her) parent, as a person with parental responsibility, can apply for access to the notes does not automatically mean that they should be disclosed. Children’s privacy is protected under the common law and Article 8 of the Human Rights Act 1998. They can be deemed competent to make their own decisions about treatment without their parents being involved (Gillick (1986)/Axon (2006)). If so, the records generated should not be shared with parents without the child’s consent. The clinician has an ethical as well as legal duty to protect the child’s confidentiality, particularly if the child might lose faith in the medical system if their notes are shared without their consent.
Trusts are faced with many requests for children’s records from individuals and organisations, most commonly the police, local authorities and solicitors representing parents in private family proceedings. In almost every case, it will be appropriate to share information with a local authority seeking to carry out its statutory duty under the Children Acts 1989 and 2004 to safeguard and promote the welfare of children, even if the child does not like this. Effective interagency working and information sharing is crucial to ensure that children in need are identified and action is taken to ensure they are properly looked after.
The police may seek copies of medical records when investigating or prosecuting serious crime, for example, where a child has been a victim of abuse, domestic violence or assault and this can be justified. What do you do, however, when solicitors representing a parent who is the alleged perpetrator of the abuse or assault, applies for or obtains a court order for the production of medical records which the child has clearly stated he does not want to be shared? This can happen in the context of criminal or family proceedings.
The changes to the Criminal Procedure Rules 2005 (CPR) following the case of TB (2006) require the court to consider representations made by those whose confidential records are requested. CPR 28.5 specifies that an application for a witness summons in a criminal case compelling a witness to give evidence about information held in confidence that relates to another person, must also be served on the person to whom the proposed evidence relates, in this case, the child. The child then has 14 days in which to make representations.
(In the case of TB, Staffordshire Healthcare NHS Trust was concerned about a court order made in a criminal case requiring the production of TB’s medical and psychiatric records to the Defendant, who was accused of a sexual assault on her. She was given no chance to make representations at the time. The court decided that this was procedurally unfair and TB’s Article 8 rights had been infringed).
A court must carry out a careful balancing act when deciding whether the need to disclose medical records in order to ensure a fair trial should take precedence over confidentiality issues in each case. The Trust should not carry the burden (and cost) of ensuring a child’s right to privacy is maintained and, if necessary, the child should be represented by the Official Solicitor. When faced with a court order requiring the production of a child’s medical records in a criminal case, it is worth making sure that the child has been given the opportunity to make proper, legally supported representations about the disclosure of their notes, especially when treatment is of a psychiatric nature.
It is easy for parents to obtain orders for disclosure of their children’s medical records in family proceedings, particularly if both parents consent. Sadly children are frequently used as pawns in antagonistic and protracted contact disputes which cause great anguish. Parents caught up in such disputes may not fully consider their child’s best interests above their own. In a case I have recently been involved with, a ten year old made it very clear to those providing his psychiatric treatment that he did not want information given in the course of therapy shared with his father, and stated clearly that if this information was shared, he would not engage with the service. The child had significant behavioural problems. Without appropriate help it was clear that his attendance at school and emotional health was going to spiral downhill.
The leading case in this area is Re. D (1996), where the crucial test of balancing the risk of harm to the child was considered against the fundamental principle of fairness - that a party is entitled to disclosure of all materials that might be taken into account by a court when reaching its decision. The Human Rights Act 1998 has since developed this law, importantly in the case of Re. X (2002). At the end of the day, the court has to strike a fair balance.
When presented with an order requiring disclosure of the child’s records the Trust considered whether disclosure would be in the child’s best interests. The father was seeking copies of the child’s medical records largely to obtain ammunition for his contact case against the child’s mother. When making the original order for disclosure, the court had not carried out a fully informed consideration of whether breach of the child’s right to confidentiality was justified.
We presented evidence, including a report from the child’s treating psychiatrist, which set out the likely harm to the child should the notes be disclosed, and asked the court to carry out a proper balancing exercise, bearing in mind that the child’s welfare must be the paramount consideration of the court (Section 1, Children Act 1989). The order was duly varied. The father’s attempt to appeal this decision was unsuccessful.
Before resorting to the expensive process of applying to vary a court order, it is always worth trying to seek a practical solution. In this case we suggested that the notes be disclosed to an independent court-appointed psychiatrist rather than to the father as a compromise, a solution that was endorsed by the court but sadly, and expensively, not by the father.
The moral of the story is that, even when faced with a court order, it is important to consider whether confidential medical records should be disclosed in the best interests of a child, and to object if, in your view, it would not. The courts will support a justified stand.
A child under the age of 16 has just as much of a right to confidentiality as any other person. The fact that his (or her) parent, as a person with parental responsibility, can apply for access to the notes does not automatically mean that they should be disclosed. Children’s privacy is protected under the common law and Article 8 of the Human Rights Act 1998. They can be deemed competent to make their own decisions about treatment without their parents being involved (Gillick (1986)/Axon (2006)). If so, the records generated should not be shared with parents without the child’s consent. The clinician has an ethical as well as legal duty to protect the child’s confidentiality, particularly if the child might lose faith in the medical system if their notes are shared without their consent.
Trusts are faced with many requests for children’s records from individuals and organisations, most commonly the police, local authorities and solicitors representing parents in private family proceedings. In almost every case, it will be appropriate to share information with a local authority seeking to carry out its statutory duty under the Children Acts 1989 and 2004 to safeguard and promote the welfare of children, even if the child does not like this. Effective interagency working and information sharing is crucial to ensure that children in need are identified and action is taken to ensure they are properly looked after.
The police may seek copies of medical records when investigating or prosecuting serious crime, for example, where a child has been a victim of abuse, domestic violence or assault and this can be justified. What do you do, however, when solicitors representing a parent who is the alleged perpetrator of the abuse or assault, applies for or obtains a court order for the production of medical records which the child has clearly stated he does not want to be shared? This can happen in the context of criminal or family proceedings.
The changes to the Criminal Procedure Rules 2005 (CPR) following the case of TB (2006) require the court to consider representations made by those whose confidential records are requested. CPR 28.5 specifies that an application for a witness summons in a criminal case compelling a witness to give evidence about information held in confidence that relates to another person, must also be served on the person to whom the proposed evidence relates, in this case, the child. The child then has 14 days in which to make representations.
(In the case of TB, Staffordshire Healthcare NHS Trust was concerned about a court order made in a criminal case requiring the production of TB’s medical and psychiatric records to the Defendant, who was accused of a sexual assault on her. She was given no chance to make representations at the time. The court decided that this was procedurally unfair and TB’s Article 8 rights had been infringed).
A court must carry out a careful balancing act when deciding whether the need to disclose medical records in order to ensure a fair trial should take precedence over confidentiality issues in each case. The Trust should not carry the burden (and cost) of ensuring a child’s right to privacy is maintained and, if necessary, the child should be represented by the Official Solicitor. When faced with a court order requiring the production of a child’s medical records in a criminal case, it is worth making sure that the child has been given the opportunity to make proper, legally supported representations about the disclosure of their notes, especially when treatment is of a psychiatric nature.
It is easy for parents to obtain orders for disclosure of their children’s medical records in family proceedings, particularly if both parents consent. Sadly children are frequently used as pawns in antagonistic and protracted contact disputes which cause great anguish. Parents caught up in such disputes may not fully consider their child’s best interests above their own. In a case I have recently been involved with, a ten year old made it very clear to those providing his psychiatric treatment that he did not want information given in the course of therapy shared with his father, and stated clearly that if this information was shared, he would not engage with the service. The child had significant behavioural problems. Without appropriate help it was clear that his attendance at school and emotional health was going to spiral downhill.
The leading case in this area is Re. D (1996), where the crucial test of balancing the risk of harm to the child was considered against the fundamental principle of fairness - that a party is entitled to disclosure of all materials that might be taken into account by a court when reaching its decision. The Human Rights Act 1998 has since developed this law, importantly in the case of Re. X (2002). At the end of the day, the court has to strike a fair balance.
When presented with an order requiring disclosure of the child’s records the Trust considered whether disclosure would be in the child’s best interests. The father was seeking copies of the child’s medical records largely to obtain ammunition for his contact case against the child’s mother. When making the original order for disclosure, the court had not carried out a fully informed consideration of whether breach of the child’s right to confidentiality was justified.
We presented evidence, including a report from the child’s treating psychiatrist, which set out the likely harm to the child should the notes be disclosed, and asked the court to carry out a proper balancing exercise, bearing in mind that the child’s welfare must be the paramount consideration of the court (Section 1, Children Act 1989). The order was duly varied. The father’s attempt to appeal this decision was unsuccessful.
Before resorting to the expensive process of applying to vary a court order, it is always worth trying to seek a practical solution. In this case we suggested that the notes be disclosed to an independent court-appointed psychiatrist rather than to the father as a compromise, a solution that was endorsed by the court but sadly, and expensively, not by the father.
The moral of the story is that, even when faced with a court order, it is important to consider whether confidential medical records should be disclosed in the best interests of a child, and to object if, in your view, it would not. The courts will support a justified stand.
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