Parental responsibility and consent

MDU medico-legal adviser Kathryn Leask explains the law surrounding parental responsibility and uses three scenarios to outline how this can impact on GPs in practice.

(Photo: iStock.com)
(Photo: iStock.com)

Gone are the days when the nuclear family was the norm. Today families come in many shapes and sizes. Family relationships can be complex and it is not always easy to establish who has parental responsibility for a child.

When parents are estranged, it can lead to a medico-legal dilemma for GPs. Who has access to the child’s medical records and who can give parental authority for a child’s treatment? It’s important to have a good understanding of the law surrounding parental responsibility.

Parental responsibility is defined by the Children Act 1989 as ‘all the rights, duties, powers, responsibility and authority’ which by law a parent has in relation to their child. This includes the ability to apply for access to their child’s health records and give consent to medical treatment if a child lacks capacity and it is in their best interests.

Who has parental responsibility?

Under the Children Act 1989, a mother will automatically have parental responsibility for her child. For a father, parental responsibility is usually established from birth if he is married to the mother or is named on the birth certificate.

For unmarried fathers, the date from which the latter applies varies in the various jurisdictions of the UK. In Northern Ireland, for children born after 15 April 2002, since 1 December 2003 in England and Wales and since 4 May 2006 in Scotland.

It is also possible to apply for parental responsibility. A step-parent does not automatically have parental responsibility for a child by marrying or entering into a civil partnership with the child’s parent. Since 30th December 2005 they have been able to apply for a Parental Responsibility Order if married to or in a civil partnership with the parent. Divorce or separation do not automatically affect parental responsibility.

Example scenarios

The following anonymised scenarios are based on queries raised by MDU members.

Request for medical records

An estranged father requested a copy of his daughter’s clinical records. He had separated from the child’s mother and had joint access to the child. He wanted details of the child’s medical problems and treatment. The GP contacted the MDU to enquire whether it was appropriate to disclose the records to the father.

MDU advice
If the child is mature enough to have the capacity to make decisions for himself, the GP should seek his consent before disclosing any information to the father. If the child does not have capacity, it must be established whether the father has parental responsibility.

If the father was married to the child’s mother when the child was born or is named on the birth certificate, he is likely to have parental responsibility. The GP may still want to ask the father to provide evidence that he has parental responsibility, for example, providing a copy of the child’s birth certificate.

Even if the father has parental responsibility, it is important to still consider whether the disclosure is in the child’s best interests.

In this case the father wants to know about any medical problems the child has and it would seem reasonable for him to be aware of any medication the child is taking so he can properly care for him and exercise his parental responsibility.

If the father has parental responsibility, there is no obligation to inform the mother of the request. However, the GP may wish to consider checking that the mother has no reason to believe the disclosure would not be in the child’s best interests.

Consent from a relative

A grandmother brought a child into the practice to have a routine immunisation. The GP wondered whether it was appropriate to proceed with the immunisation based on authority from the grandmother, given that the parents hadn’t given their specific permission to have the child immunised.

MDU advice
Authority for any form of treatment must be given by someone with parental responsibility for the child. This is likely to include the mother and possibly the father, but is unlikely to extend to other relatives, such as a grandparent, unless this has been specifically granted by a court. In this case, the grandmother didn’t have parental responsibility so it was not appropriate to rely on her consent for the child to be immunised.

Although it is sometimes reasonable to rely on consent from someone caring for a child (such as a grandparent or childminder) this is only possible when a parent has provided specific authority to the carer. As this was a routine immunisation the grandmother was asked to rebook the appointment when a parent could bring the child, discuss the risks and benefits of the immunisation and provide consent.

In a situation where treatment is required urgently and a person with parental responsibility cannot be contacted, a GP’s of overriding responsibility is to the best interests of the child. Emergency treatment can be provided without consent in a child who lacks capacity where that treatment is given to save the life of, or prevent serious deterioration, in the health of the child.1

Consent from one parent

A father arranged for his five-year old son to have what he felt was an unsightly skin tag removed from his arm. The doctor performed this, having checked that the father had parental responsibility for the child. However, following the procedure the mother made a complaint as she had not agreed to the operation and had felt that it was unnecessary as it was not causing the child any distress.

MDU advice
Generally, only one parent needs to consent to a child having treatment, providing they have parental responsibility. However, where a procedure is being performed for non-therapeutic reasons, it is best practice to seek consent from both parents and record this carefully in the records. If parents disagree and attempts to resolve this informally are not successful, it may be necessary to apply to a court in order for a best interests decision to be made.1

Key points
  • When treating a child be mindful of whether the accompanying adult has parental responsibility.
  • A mother will usually automatically have parental responsibility from birth.
  • A father will have parental responsibility from birth if he is married to the mother or if he is listed as the father on the birth certificate.
  • Treatment should only be given to a child if permission is given by someone with parental responsibility, except in the event of an emergency.
  • Consent generally only needs to be obtained for treatment from one parent although it is best practice to obtain consent from both parents if treatment is needed for non-therapeutic reasons.

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Reference

  1. GMC 0-18 years: guidance for all doctors. GMC

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