Medical records may contain legal evidence of maltreatment of a child/adolescent. Access to medical records is governed by a combination of constitutional, statutory, regulatory and case law. The Health Insurance Portability and Accountability Act (HIPAA) addresses the security and privacy of patient health data. The text of the HIPAA regulations can be found at  www.hhs.gov/ocr/hipaa/. The immediate and long-term impacts of the HIPAA regulations on the ability to transfer child abuse information is still being evaluated. Obtain permission/informed consent from the parent(s) or guardian(s) of child maltreatment victims to share medical information with non-medical team members. Multidisciplinary child abuse teams are generally accepted as the most effective group of professionals to address allegations of child maltreatment.

The issue of a patient's right to consent to release of information is complicated when the patient is a minor. Child Protective Services caseworkers and supervisors are authorized by law to obtain certain medical information pertaining to a minor whom a medical provider believes may have been a victim of child maltreatment. Parental permission for release of records is not required in these matters. Other methods of obtaining confidential medical information regarding a minor include judicial subpoena or authorization pursuant to a specific federal or state authority.

Parents generally have the right to authorize release of information on the child's behalf. Consequently, they also have the right to prohibit such release. When the parent is accused of an offense, the parent's decision may be based on self-interest rather than on the best interests of the child.

If an accused parent wants a copy of the child patient's record, New York Public Health Law allows a provider to deny the parent access to patient records:

If the provider determines that the requested review of the information can reasonably be expected to cause substantial and identifiable harm to the subject or others which would outweigh the qualified person's right of access to the information, or if it would have detrimental effects: N.Y. Pub. Health Law §18(3)(a), (b), and (d) https://codes.findlaw.com/ny/public-health-law/pbh-sect-18/.

You may also encounter situations where you are aware that a child/adolescent has provided information, reflected in the medical record, that he or she does not want a parent to be privy to. You may want to pursue measures to protect the record under these circumstances as well.

Electronic medical records include features that allow healthcare professionals to block notes. These features should be used judiciously, especially given the 21st Century Cures Act which went into effect in 2021: https://www.healthit.gov/topic/oncs-cures-act-final-rule. This act, commonly referred to as Open Notes, prohibits information blocking. There are, however, eight exceptions when records may be blocked without it being considered information blocking. Additional information on this important topic can be found at https://www.healthit.gov/sites/default/files/2022-07/InformationBlockingExceptions.pdf.

Legal Issues