Requests for advice regarding the release of records, and to whom, are becoming more common. Dr Kiran Keshwara, Dentolegal Consultant at Dental Protection, shares a recent case
Dr V was treating a four-year-old, whose parents had recently separated. The mother, who had a good relationship with Dr V, told her that the father wanted to book the child in for treatment under general anaesthetic, and was concerned that the treatment may not be necessary.
She also indicated that there were parenting orders in place, which included the non-disclosure of the patient’s records to the father. Sometime after the consultation, the father contacted Dr V’s practice and requested a copy of the records. As the child’s mother had indicated that there were specific parenting orders in place, Dr V asked both parents to provide a copy of the parenting orders before she released the records.
Unfortunately, the father took objection to this request and two days after the request made complaints to the Health Care Complaints Commission (HCCC) and the Office of the Australian Information Commissioner (OAIC), the national regulator for privacy and freedom of information.
What are parenting orders?
Courts can make decisions for a child, known as parenting orders, which identifies the responsibilities of each parent in a divorce or separation involving children.
In general, a divorced or separated parent may request access to the records for their child and the clinician can disclose them to either parent, with or without the knowledge or consent from the other parent. However, when a divorced parent requests their child’s dental records, the parenting orders need to be considered as, on occasion, the parent may not be permitted access or only limited access.
In such cases, the dentist should ask the parent for a copy of the court orders, which they can then keep in the child’s file, to determine where the responsibility of each parent lies.
Dr V contacted Dental Protection and we advised her that she had acted correctly. We assisted her by directly contacting the OAIC’s investigation officer and assisting with the submission to HCCC. The OAIC found that Dr V had adequately dealt with the father’s request for the records and commended her actions to ensure that the parenting orders were appropriately followed. The HCCC subsequently also dismissed the investigation.
• If there is no specific stipulation that the parent cannot view the records, the Family Law Act 1975 advises that the assumption can be made that both the parents have equal responsibility for the child and so records can be released.
• This can put the dentist in a difficult situation, especially if it becomes apparent that one of the parents does not wish for the release of the records. While the law can be pretty black or white in such cases, at Dental Protection we would encourage clinicians to understand that releasing the records or refusing to release them may cause a breakdown in the relationship between the parent and the clinician, which could in turn lead to complaints. When in doubt, always seek advice.
Can I refuse a request for records?
There are some instances where a clinician can refuse to give access, such as if:
• it may threaten someone’s life, health or safety
• it may impact someone else’s privacy
• giving access would be unlawful.
These case studies are based on real events and provided here as guidance. They do not constitute legal advice but are published to help members better understand how they might deal with certain situations. This is just one of the many benefits Dental Protection members enjoy as part of their subscription.
For more detailed advice on any issues, contact us