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Q & A - Medico Legal
Index
ML503 - Enduring power of attorney (EPA)
ML502 - Out of Hours (OOH) work and medical defence cover
ML501 – Parental responsibility
Q ML503 - Enduring power of attorney (EPA) - If an EPA has not been lodged with the Court of Protection, is the EPA valid? One of our
patients, who is currently mentally competent, has completed an EPA form in the favour of her husband and 2 children. However, the EPA has not been lodged with the Court of Protection. One of her sons has now
asked for a copy of all of her medical records based upon his Power of Attorney. Is this permitted? (07/07/05)
Answer - EPAs relate to the management of a patient's financial affairs and not to their medical
care.
The patient may be unable to manage her financial affairs, even though she is legally not mentally incapacitated, and the EPA can be used to manage these on her
behalf. The bank must comply with the patient's particular stipulations, for example that more than one attorney must be involved or that an accountant or solicitor must oversee the financial management of the
patient's affairs.
Once the patient has become mentally incompetent to manage their affairs, the EPA must be registered with the Court of Protection. If your patient is becoming
incapacitated then the attorney should apply to register the EPA sooner rather than later. The Court of Protection becomes involved only at this stage. Until the EPA is registered the attorney should normally
consult with your patient regarding management of their financial affairs.
An EPA may be terminated by the patient at any time, provided the patient remains mentally competent to do so.
In relation to medical records if the patient is still mentally competent then good practice as well as legal and ethical requirements dictate that you seek her
consent to the disclosure of any of her confidential medical records to a third party. It is unacceptable if she is unable to depend upon the confidentiality of the doctor patient relationship just because she
requires someone else to manage her financial affairs. Information provided by the patient on the explicit basis that it would always remain confidential must remain confidential even after death,
regardless of who tries to seek disclosure, unless there is a court order or similar legal requirement and necessity for the disclosure.
The practice may be able to disclose the data if the patient is no longer mentally competent and it is clearly in her best interests to do so and may prevent harm.
However, nobody else may provide consent to medical treatment on behalf of another adult person. You may provide any necessary medical care without consent in this situation if it clearly in the patient’s
best interests. if there is any doubt about this you must seek legal advice before treating the patient. In making a judgement about medical treatment for an incompetent patient you should take into account
the views of family and carers, and their understanding of what the patient would have wished.
In view of your patient's current mental state I believe that you are correct in checking with her that she consents to your disclosure of her medical records to
her son.
You will find a lot of very helpful advice on the subject of EPAs on the web site of the Public guardianship office; Enduring power of attorney
See also:
Power of Attorney
CED
Q ML502 - Out of Hours (OOH) work and medical defence cover - I am a GP partner and also work for an OOH organisation. Is this work
included in my Medical Defence cover? (06/06/05)
Answer – This is something that you must clarify with your own medical
defence organisation. We have confirmed that for at least one of the cover providers any additional OOH sessions that are included as part of
that GP’s contract would be covered by their current subscription. However, if these sessions are not part of that contract then the GP must notify the medical defence organisation so the cost of cover may
be reassessed to reflect the additional work.
If GPs choose to opt-out of OOH work they should contact the medical defence organisation to advise them of the change in their working
circumstances so that their records can be amended to reflect the change.
If there is any doubt regarding the adequacy of your medical defence cover you should always check directly with your insurers since the cost
of being uninsured could well prove to be exorbitant.
CED
Q ML501 – Parental responsibility - One of my patients is divorcing his wife and has now requested access to his children’s medical
records. He claims that, although he was unmarried at the time of his children’s birth, he acquired parental responsibility for them by subsequently marrying the mother. Is this correct? (28/04/05)
Answer – The natural mother has automatic parental responsibility,
unless it is removed by the courts, which is very rare. The father does not automatically have parental responsibility for any of his natural children that were born to his wife before they married. (The law
changed in this respect on 1 December 2003 and since that time a child born to an unmarried father, who agrees to be named as the father on
the birth certificate, automatically acquires parental responsibility.)
The father may, however, obtain parental responsibility in a number of ways* including subsequently marrying the child's mother. A father who had acquired parental responsibility in this way would only lose some or
all of that responsibility if the court ordered it, or when the child reached the age of 18.
The BMA guidance on the subject states quite clearly that 'Both of a child’s legal parents have parental responsibility if they were married
at the time of the child’s conception or at some time thereafter.'
It is important to remember that even quite young children may be ‘Gillick Competent’ and therefore may have legal capacity to consent or
dissent to disclosure of their confidential medical records. In addition, you must always take into account your legal and professional obligation to act at all times in the child’s best interests.
In a contentious divorce situation it would be worth checking with your medical defence organisation if there is any doubt about the wisdom of
providing access to the medical records.
Acquired parental responsibility
* An unmarried father
can acquire parental responsibility by;
- applying for and getting a Residence order
- applying to the court for a Parental Responsibility order
- making a parental responsibility agreement (in a set procedure) with the mother
- being appointed the child’s guardian (once the appointment takes effect)
- subsequently marrying the mother of the child.
Step-parents do not acquire parental responsibility on marriage, but they do have a responsibility to safeguard the welfare of any step-children in
their care, and are responsible for the maintenance of a step-child where a marriage means the step-child is a “child of the family.” (ie a child who has been treated as a member of the family.
A step-parent may acquire parental responsibility by:
- obtaining a Residence order
- adopting the child.
CED
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