Ask a lawyer: Parent’s request for minor’s health records


Question:  I am a nurse who is employed at a primary care clinic. I have recently become aware that the parents of a 10-year-old patient have divorced. The father is now requesting a copy of the child’s health records. Is he entitled to receive a copy of the records? What should I do?

Answer: The father’s ability to receive a copy of the child’s records will generally depend on whether the child has the capacity to consent to the management of their health information.1 If the child is capable of managing their own personal health information, the child generally must provide consent before a copy of the health records is released. Furthermore, it is important to note that the father’s ability to receive a copy of the child’s health records will also depend on whether there is legal authority, such as a court order or subpoena authorizing the release, that allows its release without the consent of a child who has the capacity to manage health information.2

If the child is incapable of consenting to the management of their health information, the father’s access will depend on whether he has custodial or access rights to the child. If he has custodial rights, he generally has full access rights to the child’s personal health information and is entitled to a copy of the child’s health record. Alternatively, if the father has access rights, then his right to receive a copy of the records will depend on the governing privacy legislation, the legislation governing access parents’ rights and any relevant court order or agreement regarding access or custody. In some situations, you may want to confirm the parent’s access rights by requesting a copy of any relevant court order or agreement regarding access or custody.

If you receive a request to release copies of personal health records, consider whether you are the best person to handle the request. Typically, health-care institutions are considered the custodians or trustees of personal health records, and an employee nurse is considered an affiliate. The affiliate must comply with the custodian or trustee’s policies and procedures, which are based on privacy law, regarding the disclosure of personal health information. Many health-care institutions have privacy departments or designated individuals who are responsible for managing requests for access to personal health information. In situations where there is no employer policy in place, or the policy does not identify who is authorized to respond to these requests, seek direction from your employer about how best to proceed. Document the request and your actions in the patient’s health record.

CNPS beneficiaries can call 1-844-4MY-CNPS (1-844-469-2677) to speak with a CNPS legal advisor, who is a lawyer, about specific requests for the release of a child’s health records to a custodial or access parent.


1. CNPS beneficiaries can contact the CNPS for more information on a minor’s ability to consent to the release of their own personal health information.

2. Please see Confidentiality of Health Information (October 2008, Revision of September 1993).

 

Published May 2017

 

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.

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