Disabled People: Medical Records

Tuesday 7th February 2017 Lords Chamber

Question

14:55

Asked by

[Baroness Burt of Solihull]

To ask Her Majesty’s Government what assessment they have made of the use of medical records of disabled parents in child custody cases.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the welfare of the child is paramount in court decisions about a child’s upbringing. As well as any other matters, the court can take into account the medical record of a parent with disabilities if it considers such evidence relevant to the case. Judges must act in accordance with the principles of the European Convention on Human Rights, including those relevant to preventing discrimination on the grounds of disability.

[Baroness Burt of Solihull (LD)]

My Lords, I am sure that noble Members will all agree that the welfare of the child must be paramount, but many disabled parents feel that they are unfairly discriminated against in child custody cases. Some fear visiting the doctor in case the use of their medical records in court might contribute to their being designated unfit parents. The Equality Act is silent on this matter, so will the Minister consider adding a clause to the Act to clarify the situation and to reassure disabled parents that they will be fairly treated in the family courts?

[Lord Keen of Elie]

I am obliged to the noble Baroness for her observation, however I fear that some confusion has entered the debate around the issue of discrimination. The Equality Act 2010 deals with the issue of discrimination on the part of individuals. Judicial decision-makers are exempt from the provisions of the Act on very reasonable grounds; however, any judicial decision-maker is bound, in any event, by the provisions of Articles 6, 8 and 14 of the European Convention on Human Rights, and is therefore bound never to discriminate against any party on grounds of disability.

[Lord Beecham (Lab)]

My Lords, support for 3.7 million disabled people has been cut by £28 billion since 2012 under the Welfare Reform Act. Five years on, will the Government undertake a thorough review of the Act’s impact on this important section of the community? In relation to medical records and reports, will the Government intervene to prevent general practitioners charging the victims of domestic abuse up to £175 for letters which are required to support applications for legal aid?

[Lord Keen of Elie]

I am obliged to the noble Lord for raising a series of questions unrelated to the original Question from the noble Baroness. The question of fees for reports is not a matter that is under immediate review but it is, of course, borne in mind in the context of legal aid provision as a whole. Not every general practitioner makes a charge for such a report.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my noble friend’s Question raises a difficult point about the use of medical records in litigation generally. The courts, of course, routinely order disclosure of medical records relevant to issues in litigation on the grounds that the public interest in disclosure outweighs the individual’s Article 8 right to privacy. Has the noble and learned Lord’s department considered issuing guidelines as to how courts might protect the confidentiality of medical records which are disclosed?

[Lord Keen of Elie]

I am obliged to the noble Lord. The position is that in determining the child’s welfare needs the court will apply the factors set out in the welfare checklist in Section 1(3) of the Children Act 1989. Only where it is considered that the issue of medical condition would be relevant to the ability of a parent to care for a child would any order be made with respect to the disclosure of medical records. Those medical records may be disclosed in court but not beyond that.

[Lord Elystan-Morgan]

My Lords, does the noble and learned Lord agree that in most cases it will be very much in the interests of the child that that child should be brought up by its natural parents, wherever possible and wherever that is consistent with the welfare of that child? Does he also agree that medical records relating to the parents should never be used as a weapon against the parents but should be used to try to see what assistance can be given to those persons so that they can bring up the child, wherever it is humanly possible for them to do so?

[Lord Keen of Elie]

I entirely concur with the observations of the noble Lord. I remind the House that the Children Act 1989 was amended by Section 11 of the Children and Families Act 2014, which determined that there would always be a presumption that a parent’s involvement in their child’s life will further the child’s welfare unless the contrary can be shown.

[Lord Rooker (Lab)]

Can we take it from one of the Minister’s earlier replies that it is the firm intention of Her Majesty’s Government to remain a signatory to and a member of the European Convention on Human Rights?

[Lord Keen of Elie]

My Lords, that is most certainly this Government’s present intention.