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Stuck in the middle: when a child patient has divorced parents

06 January 2020

Treating a child whose parents have separated can be a complex situation. Dr Kiran Keshwara, dentolegal consultant at Dental Protection, offers advice on managing any difficulties

Sometimes a practitioner who is treating a child finds out that the parents of the child have separated. In some cases, the responsibility of certain aspects of the dental treatment that the practitioner is proposing (or has started) falls to one parent only, with the other aspects falling to the other.

This can be a difficult situation for all parties and vexing for the clinicians providing care. While each case of separation and divorce is different and needs to be considered as such, there is some general advice on managing this.

Under the Family Law Act 1975, the ultimate goal of the court in divorces and separations that involve children is to ensure that the child’s best interests are kept in mind and that they are well cared for and protected. The Act states that “each of the parents of a child who is not 18 has parental responsibility for the child” (s 61C). Because of this provision, subject to any court orders, each parent has a role in deciding what is reasonable in looking after a child – including authorising medical treatment. Although parents will normally want to co-operate in caring for their child, unless a court has made an order requiring them to co-operate, there appears to be no legal obligation to do so.

Courts can make decisions, known as parenting orders, for the child, advising on which of the parents has primary responsibility and other aspects of the upbringing of the child. Parenting orders create obligations that are legally enforceable whereas parenting plans do not.

The Family Law Act says that parenting orders can deal with, amongst other things:

• who the child can live with
• the time the child can spend with each parent
• decision-making powers between the parents – parental responsibility – extending to decision making regarding medical care
• the financial aspects of the arrangements for the child – including who pays for their medical care.

The practitioner should ask the parent for a copy of the court orders, which can be kept in the child’s file, to determine where the responsibility of each parent lies. The parent that is responsible for the day-to-day care and decision-making of the treatment that the child undergoes may not be the parent that pays for the treatment, so it is important for the clinician to understand the roles of each parent, and also what information each parent has the right of access to.

In general, the care for children will be shared between the parents (they have “parental responsibility”). If there are no court orders apportioning parental responsibility, when a child presents with a parent a practitioner may assume that the parent in attendance has parental responsibility for that child’s care and therefore may provide consent to their treatment. Parenting orders may dictate that both parents are required to provide consent and, in this case, the practitioner should obtain the court orders and signed consent from both parents, to keep on the patient’s records.

Many times, a parent may request access to the records for the child and these can be shown to either parent, with or without the knowledge and consent from the other parent. However, when a parent requests a copy of their child’s dental records, the parenting orders need to be considered, as on occasion the parent may not be permitted access or only have very limited access. As above, it is important for the clinician to view the parenting orders to determine if they can indeed release the records as requested. If there is no specific stipulation that the parent cannot view the records, the Family Law Act 1975 advises that it can be assumed that both parents have equal responsibility for the child and so records can be released.

This can put the clinician in a difficult situation, especially if it becomes apparent that one of the parents does not wish for the records to be released. Whilst the law can be pretty black or white in such cases, at Dental Protection we would encourage practitioners 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 and further complications.

For the parents of a child undergoing extensive dental treatment, such as orthodontics, we advise our members to obtain written consent from the parent present, for the release of the dental records to the other parent. The intention behind this is to make the parent aware that the records may be released and if they have any objections or concerns they can be raised at the outset.

Of course, if a practitioner deems that the child patient is Gillick competent – this is that they show sufficient intelligence and maturity to understand the treatment that is being proposed, the risks of the treatment or of no treatment and the alternatives presented to them, they can consent to treatment or refuse treatment. The same principle can apply to the release of records, where a Gillick competent child may refuse to have their records released to either of their parents. While a Gillick competent minor can give consent to treatment, it may be that a parent is paying and, as such, it is appropriate to seek their permission to discuss the treatment with the paying party.

As can be seen above, treatment of children of separated/divorced parents can be complicated by matters that are outside the control of both practitioner and the child, and so members are encouraged to obtain as much information as they can and contact Dental Protection on 1800 444 542 to discuss any concerns that they have.

© 2019 The Medical Protection Society Limited

DPL Australia Pty Ltd (“DPLA”) is registered in Australia with ABN 24 092 695 933. Dental Protection Limited (“DPL”) is registered in England (No. 2374160) and along with DPLA is part of the Medical Protection Society Limited (“MPS”) group of companies. MPS is registered in England (No. 00036142). Both DPL and MPS have their registered office at Level 19, The Shard, 32 London Bridge Street, London, SE1 9SG. DPL serves and supports the dental members of MPS. All the benefits of MPS membership are discretionary, as set out in MPS’s Memorandum and Articles of Association. “Dental Protection member” in Australia means a non-indemnity dental member of MPS. Dental Protection members may hold membership independently or in conjunction with membership of the Australian Dental Association (W.A. Branch) Inc. (“ADA WA”).

Dental Protection members who hold membership independently need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA National Insurance Pty Ltd (“MDA”), ABN 56 058 271 417, AFS Licence No. 238073. DPLA is a Corporate Authorised Representative of MDA with CAR No. 326134. For such Dental Protection members, by agreement with MDA, DPLA provides point-of-contact member services, case management and colleague-to-colleague support.

Dental Protection members who are also ADA WA members need to apply for, and where applicable maintain, an individual Dental Indemnity Policy underwritten by MDA, which is available in accordance with the provisions of ADA WA membership.

None of ADA WA, DPL, DPLA and MPS are insurance companies. Dental Protection® is a registered trademark of MPS.