Children’s Mental Health Records Part 1: Parent or Guardian Requests
Children’s mental health providers routinely face requests for records of personal health information (“PHI”) relating to their clients, often in the context of a dispute. Such requests are generally made by a parent who does not have authority to consent to the disclosure of records themselves, either because they are not a custodial parent or because the records relate to a capable child. Where the client is not capable to give consent and the request comes from a parent who does not have custody of the client, discretion must be exercised. (We covered this in an earlier blog post.)
In circumstances where the client is a capable child, you may be faced with a discrepancy between their directions regarding the disclosure of their personal health information, and requests for access to the records from the child’s parent or legal guardian. Protecting the privacy and confidentiality of your young clients is particularly challenging in these circumstances. Parents in a custody dispute, for example, may not be concerned about the privacy of their child’s personal health information. As the health care provider with a duty to your young client, you may determine that it is appropriate to advocate for the child’s privacy. This blog will provide guidance on how best to navigate and respond to requests for a child’s records where a child has been deemed capable.
Capable Children and Age of Consent
There is no “age of consent” under the Personal Health Information Protection Act, 2004 (“PHIPA”). Pursuant to s. 21(1) of PHIPA, an individual is capable of consenting to the collection, use, or disclosure of their personal health information if the individual is (a) able to understand the information that is relevant to deciding whether to consent; and (b) able to appreciate the reasonably foreseeable consequences of giving, not giving, withholding, or withdrawing consent.
A parent of a child who is under 16 years of age is able to give, withhold, or withdraw consent on behalf of even a capable child. However, s. 23(3) of PHIPA states that where there is a conflict between a capable child and their parent or guardian, the decision of the child to give, withhold, or withdraw the consent or to provide the information prevails over the decision of the parent. Note that this does not apply where the young person accesses treatment or counselling on their own. In those circumstances, the parent has no right to access the record.
When faced with a request for records from a parent to whom the capable child has expressly withheld consent to disclose these records, you are obligated to respect the child’s decision. However, refusing to release records to a parent can be the subject of a challenge or a complaint to the Information and Privacy Commissioner of Ontario (the “IPC”). So, what should you do, and how do you best protect your young client’s interests?
How to Manage Requests from a Parent or Guardian for Access to a Child’s Records
Meet with your young client to discuss the release of records. If you have not already done so, determine whether the client is capable of consenting to the disclosure of their PHI. At this meeting you should discuss the client’s options with them, as well as the consequences of the decision to withhold consent. Ascertain your client’s wishes and any reasons as to why.
Document why you believe your young client is capable of making this decision. Document the consequences of giving or refusing consent, as well as the child’s reasons for the decision. (Although a capable person can make a decision for any reason, or no reason at all, identifying the basis for the client’s decision will help demonstrate that it is indeed a capable decision.)
Discuss with your client that you will have to provide an answer to their parent’s request, and discuss your client’s wishes for this.
If the client refuses consent to disclosure, advise your client’s parent that you are unable to provide the requested records because your client has not provided consent to the disclosure of their PHI. Remember to stay professional and courteous, and acknowledge that this may be a disappointing result for the parent.
Conclusion
While being prepared may not prevent a challenge or complaint to the IPC, doing so will ensure that you are able to back up your decision if necessary.
If you have received a concerning or conflicting request for a child’s records and are unsure of your privacy obligations, our team at Rosen Sunshine is able to assist you. Please contact us and ensure you get the advice of an experienced lawyer before proceeding.
