A principal obligation of parenthood is to claim certain rights and privileges on behalf of one’s child, as well as make decisions the child is considered incompetent to make on their own. Whether a five-year-old should have an elective tonsillectomy, for example, is more a decision for the child’s parent then for the child herself. Likewise, if a doctor engaged in malpractice while caring for one’s child, the parent would bring the claim on behalf of the injured minor.
However, the water becomes murkier when dealing with children’s medical records and a parent’s access to those records. In the Matter of Berg v. Berg, the father demanded access to his children’s medical records, arguing that his legal rights as a parent overrides the children’s right to privacy. The children’s therapists and the guardian ad litem moved to seal the children’s records, which the trial court denied. The case went to the New Hampshire Supreme Court to answer the following questions:
1. Do children have a right to privacy for their medical records and communications?
2. Does the court have the authority to seal the therapy records of the parties’ minor children when one parent demands access to the records for purposes of litigation?
3. Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records.
The Supreme Court overruled the trial court, and answered the three questions in the affirmative. The court found that when parents enter into an acrimonious, contested custody battle, the personal interests of the parents could become adverse to the children’s interests. The court went on:
Where the privilege is claimed on behalf of the parent rather than that of the child, or where the welfare and interest of the minor will not be protected, a parent should not be permitted to either claim the privilege or, for that matter, to waive it.
The court further justified their holding by noting that, under some circumstances, allowing the parent unfettered access to the child’s therapy records may deny the children the right to effective medical care by destroying the “atmosphere of confidence and trust” that is fundamental for effective therapeutic counseling.
It is also worth noting that while a parent with potentially conflicting motives cannot assert or waive the privilege on behalf of the child, a neutral GAL may do so. Furthermore, a sufficiently mature child can claim the privilege on their own behalf. In determining whether or not to allow a minor to assert the privilege, at the trial judge’s discretion, the court may consider 1) the child’s age, intelligence and maturity, 2) the intensity with which the child advances his interest, and 3) whether their stated preference is based upon improper influences.
For parents wondering, what does this mean to me, the inquiry the court will make when deciding whether a parent may access their children’s medical records will be whether allowing the parent the right to assert or waive the therapist-client privilege on behalf of their child is in that child’s best interests? If allowing such access would interfere with the child’s ability to succeed in meaningful, productive therapy then it would not be in his best interests and the parent may not waive the privilege on their behalf. If, on the other hand, there is no risk that such disclosure would harm the child, the parents retain the right to waive or claim the privilege.
Crusco Law Office, PPLC Law Clerk Daniel McLaughlin contributed to this post.