Navigating the care of children can be tricky when the family is fractured, but where do doctors stand?
When caring for children it can be challenging for doctors to know who makes decisions about their healthcare and who can access information about them.
There are a handful of common scenarios that come up for doctors, some more often than others. These include knowing when an older child can make independent healthcare decisions with an expectation of privacy; how to manage parents who want information about their teenage child; what to do if parents refuse a treatment that is in the best interests of the child; and how to manage this if one parent agrees but the other doesn’t.
But one of the biggest minefields is navigating healthcare for a child when the parents are separated or divorced. It can be compounded when there is acrimony between the parents, and also when the separation is not clearly communicated to the health professional. This throws up a mountain of potential questions – common ones include:
• Who makes decisions?
• Can one parent over-rule the other?
• Who can access the child’s records?
Anthony Mennillo, MIGA’s Head of Claims and Legal Services, says issues relating to children are among the most common reasons doctors reach out to their MDO for support.
“One of the biggest ones is knowing when a child has the legal right to make their own medical decisions independently of their parents and with an expectation of absolute privacy,” he explains.
“A 16-year-old in South Australia, for example, the legislation regards them as an adult when it comes to medical treatment, so they can make their own decisions about their healthcare. You don’t need to involve the parents at all. That patient also has the same right to privacy as an adult.
“That doesn’t apply across Australia, there’s some slight variations in different states. As a medical practitioner, it’s important to know how the law applies in their state or territory.”
There is an expectation that major medical decisions for a child, such as surgery or life-saving treatments, would involve one and probably both parents if they are available, and usually, this is accepted by all parties.
“It can get complicated when you look at the parenting situation as there can be so many different permutations. Is it a separated parent family? And if so, are one or both parents aligned in terms of the treatment? And if not, are there any parenting orders in place which can increase the complexity,” Mr Mennillo explains.
“We’ve dealt with some very complex situations, where parents disagree, one consents, and the other doesn’t consent. That’s where it becomes really difficult, and you rely then on what parenting orders are in place.
“The very prime consideration for any practitioner that’s involved in this sort of setting, is what is ultimately the best interest of the child.”
Without parenting or court orders to the contrary, each parent has the ability to make decisions about their child’s healthcare or obtain access to information about their healthcare (including clinical records). Parenting or court orders can restrict the ability of one parent to make decisions about their child’s healthcare or access information about the child.
Mr Mennillo says that where parents are separated it’s important to be clear on whether there are any parenting/court orders in place and keep a copy of any relevant orders covering healthcare in the medical record. If there are issues of family or domestic violence, sensitive information such as address or contact details should not be released.
When a child’s records are requested by a parent in a split custody situation it’s important to be aware of any additional sensitive information about the other parent, such as diagnoses and contact with lawyers that may be kept in a child’s records, and ensure it is not released.
“It’s important to get documentation, parenting orders, family court orders that specify treatment which should provide some clarity about treatment decisions, and so you can rely on those documents,” says Mr Mennillo.
“The last thing you want is to find out that there were parenting orders in place, and you have acted contrary to that, because that’s where the doctors inadvertently can get themselves into difficulty.
“Clearly document key information, such as who can make decisions and receive information, relevant parenting/court orders. Ensure clear communication about relevant issues between members of a child’s treating team [GP, specialists, community nursing, hospital and allied health], particularly where there are uncertainties.”
In rare cases, both parents may be in agreement about refusing a doctor’s recommended care plan for a child. Sometimes this can include life-saving treatments like surgeries or the use of medications.
If the doctor feels strongly about the need for intervention, they can apply for a court or tribunal order to over-rule the parents’ decision. Mr Mennillo advises doctors to reach out to their MDO for support to do this.
“Those extreme situations are thankfully rare but can be quite complex. We will step through the decision making process with the doctor but there is often other members of a treating team involved, including a hospital, and it is important to involve them as well. We’ve got a Q and A that we can send to our doctors that covers all of these things in detail. It’s a handy thing to have in the practice as a checklist as well.”
Notes, as always, are the key message.
“The notes are your best defence or your worst enemy if you don’t keep thorough notes,” says Mr Mennillo.
“When you are called upon months or years later you can say, ‘Well, here’s my note that says that mum told me that, that dad agreed to this, or vice versa, and there’s a note that’s pretty clear at the time about why the treatment decisions were made.
“That’s the best way for the doctor to protect themselves from any criticism or complaint that might arise.”
