Your browser is no longer supported

For the best possible experience using our website we recommend you upgrade to a newer version or another browser.

Your browser appears to have cookies disabled. For the best experience of this website, please enable cookies in your browser

We'll assume we have your consent to use cookies, for example so you won't need to log in each time you visit our site.
Learn more

Childrens' access to medical information

  • Comment
A child of 13 has asked to see her medical records. She is suffering from a terminal illness and her allocated nurse considers that she could be harmed by seeing the information. What laws can be applied to this case?

Regulations have been made under the Data Protection Act 1998 to enable people to access their personal health records.

These provisions do not lay down any minimum age for a right of access. However, it would be necessary to ensure that the child had the intelligence and maturity to understand the nature of the records and the likely consequences of access. The test used by the House of Lords in the Gillick case to assess the competence of the child to access her records would be applied.

The assessment of the child’s mental capacity would be carried out by an appropriate health professional and the information conveyed to the data protection officer.

A check would have to be made as to whether any of the exceptions to access existed. These exceptions include the right to refuse access if access would cause serious harm to the mental or physical health or condition of the applicant or another person. In addition, access can be withheld if a third person mentioned in the records has refused to give consent to their being identified. This cannot be a health professional caring for the child.

The views of the parents on access by the child would be sought but they would not have a right of overruling access if the child was assessed as competent and the exceptions to access did not exist.

Guidelines issued by the Information Commissioner and the Department of Health are available on their websites.

In this situation, an assessment would be made of the mental capacity of the 13-year-old. Often children with major illnesses develop an awareness and maturity beyond their age so it could not be assumed from the fact that this child is only 13 that she lacks the requisite mental capacity.

It would appear from the fears of the nurse that the child has not been told that she has a terminal illness. If this is so, then her request to see her records may have resulted from a lack of communication between herself, her parents and her health professionals.

If the consultant paediatrician considers that the patient could see her records, there is no reason why she would have to apply formally through the statutory right of access. The consultant will wish to discuss the decision with the multidisciplinary team and the patient’s parents.

If access were agreed, good practice would ensure that her personal nurse or another healthcare professional involved
in the girl’s treatment went through the records with her. If informal access were refused, then the patient could exercise her statutory right to apply to see them. If that resulted in a refusal, then she would have rights to appeal against that decision.

Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd

Want to read more Dilemma? Just click on the more by this author link at the top of the page.

  • Comment

Have your say

You must sign in to make a comment

Please remember that the submission of any material is governed by our Terms and Conditions and by submitting material you confirm your agreement to these Terms and Conditions. Links may be included in your comments but HTML is not permitted.