Midwives have women of varying ages on their caseload, and it is essential that any care or treatment provided is done so within the law. Records provide evidence of a midwife's involvement with a child and they must be sufficiently detailed to show that the midwife's duty of care has been discharged.
Midwives work in partnership with the women on their caseload and, where the woman in question is under 18, this might also include her parents or guardian (Family Law Reform Act 1969, section 8 (3)). This partnership results in openness about the content of the child's record. Occasionally, however, parents will request formal access to and copies of their child's record. It is essential that midwives are aware of the procedures for applying for and releasing a child's record and the impact of Gillick competence on a parent's right of subject access to the record of their child.
Records
Midwives have a duty to keep an accurate and contemporaneous record of their involvement with the women in their care.
The Health and Social Care Act 2008 (Reg ulated Activities) Regulations 2014, regulation 17(2) requires midwifery services to:
‘maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided…’
Parental responsibility empowers a person to make most decisions in a child's life, including applying to access a health record on the child's behalf
To achieve this standard, midwifery services must ensure that:
Access rights under the Data Protection Act 1998
Women have a right to be informed when personal data about them are being processed and this includes obtaining, recording or holding health information (Data Protection Act 1998, section 7).
The Data Protection Act 1998 gives data sub jects a right of access to health records that:
A health record is defined as any electronic or paper information recorded about a person for managing their health care (Data Protection Act 1998 section 68 (1)(a)) and a legal right of access is given to living people, whether their records are computerised or manually created (handwritten). It applies equally to all records, regardless of when they were made.
Access to the records of children
Anyone is entitled to seek access to their health record. Where this is a child, any person with parental responsibility may apply, independently.
Parental responsibility
Parental responsibility is defined as all the rights, duties, powers, responsibility and authority which, by law, a parent of a child has in relation to the child and his or her property (Children Act 1989, section 2). It empowers a person to make most decisions in a child's life, including applying to access a health record on the child's behalf. It is essential, therefore, that midwives identify who it is that has parental responsibility for a pregnant child.
Access to the health record of a Gillick-competent child
The general issue over whether a child under 16 years old has the necessary competence to consent to examination and treatment was decided by the House of Lords in Gillick v West Norfolk and Wisbech AHA [1986] where a mother of girls under 16 objected to Department of Health advice that allowed doctors to give contraceptive advice and treatment to children without parental consent.
It is essential that midwifery services have a clear policy that requires an assessment for Gillick competence as part of the process of granting subject access requests to the records of a child from the age of 12
Their Lordships held that a child under 16 had the legal competence to consent to medical examination and treatment if they had sufficient maturity and intelligence to understand the nature and implications of that treatment. Such children are regarded as Gillick competent.
The House of Lords also accepted that once a child is assessed as being Gillick competent then the same duty of confidence applies to that child as it would to an adult. Information about the child cannot be disclosed unless the child gives permission.
This duty of confidence extends to data subject access to a child's maternity record. The Data Protection Act 1998 confers rights on a data subject. Children are data subjects and the Information Commissioner's Office (ICO) makes it clear that a child's rights as a data subject can only be exercised by another person on the child's behalf if the child is not competent to exercise those rights him/herself (ICO, 2006). Once a child is competent to make subject access decisions about his or her health records then the consent of the child must be obtained before access is granted to a third party such as a parent.
Subject access requests
It is the ICO's view that children as young as 12 are likely to have the maturity and intelligence to make decisions about subject access requests. The ICO recommends that:
‘Parents can make subject access requests on behalf of their children who are too young to make their own request. A young person aged 12 or above is generally considered mature enough to understand what a subject access request is. They can make their own request and would need to provide their consent to allow their parents to make the request for them. You must use your judgement to decide whether a young person aged 12 or above is mature enough to make their own request as they do not always have the maturity to do so.’ (ICO, 2012: 4)
It is essential that midwifery services have a clear policy that requires an assessment for Gillick competence as part of the process of granting subject access requests to the records of a child from the age of 12.
To meet the requirements set out by the ICO, it is essential that midwives are confident in assessing whether a child on their caseload is Gillick competent
Assessing Gillick competence
The aim of Gillick competence is to reflect the transition of a child to adulthood. Legal competence to make decisions is conditional on the child's gradually acquiring both of the following:
The degree of maturity and intelligence needed depends on the gravity of the decision. A child who had competence to con sent to a dental examination may lack com petence to consent to more serious treat ment (Re R (A minor) (Wardship Con sent to Treatment) [1992]). This could be because the child does not understand the treat ment implications, or because they feel overwhelmed by the decisions they are being asked to make and so lack the maturity to make them. Although the ICO argues that a child from the age of 12 is likely to have the matu rity and intelligence to make a subject access decision, it also recognises that com petence from this age cannot simply be assumed.
Gillick competence is a functional ability to make a decision. It is task-specific: more complex decisions require higher levels of com petence. It is not just an ability to choose, where the child recognises that there is a choice to be made and is willing to make it; rather, it is an ability to understand, where the child must recognise that there is a choice to be made and that choices have con se quences and the child must be willing, able and mature enough to make that choice.
Where a child is considered Gillick competent, the consent is as effective as that of an adult and cannot be overruled by a parent. A subject access request would only be granted with the consent of the child.
Conclusion
Midwives working with pregnant children will occasionally receive subject access requests from people with parental responsibility to their child's record.
Midwives must acknowledge that children have rights as data subjects under the Data Protection Act 1998. The right of a parent to exercise subject access rights on their child's behalf is conditional on the child not being competent to exercise those rights herself. The ICO argues that children, from the age of 12, are likely to be Gillick competent for subject access decisions.