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  • Access to medical information

    Hello everyone. This is my first post, although I have been reading some very helpful posts for quite some time now.

    I was hoping someone can help clarify the rules as far as my rights to access my child's medical information. My ex currently has temporary sole, which I consented to. The judge from the CC where this was decided assured me this was only until we are able to arrive at a mutual agreement or until a permanent solution is ordered at the end of a trial. I currently have access almost every weekend, was able to have my child for the majority of summer break, and have an agreement for about 70% of the holiday break coming up. This is mostly due to my 6 year old persistently bugging my ex about wanting to live with my partner and I. Unfortunately, my daughter has been told that this is not an option because *insert any number of lies here*.

    Regardless of the issues between my ex and I, my main concern is my daughter whose behavioural issues have intensified over the last 2 years. Up until I requested my ex provide me with updated medical and school records via court order, I had been kept in the dark about any issues and doctors' appointments involving my daughter. Recently I have grown more concerned about certain symptoms my daughter has been displaying. I brought these concerns up to my ex and requested to meet my child's therapists, who started her on new medication last month. She provided me with a date and time that was impossible for me to attend. I requested either a new date or a phone interview instead, and that was completely rejected. She added that she has instructed them not to speak to me without her there. She wants all information to only go through her. I have also been in touch with my child's teachers (weekly/biweekly phone updates) and they too seem to be avoiding my phone calls lately.

    I would appreciate any advice about this topic as I seem to be finding conflicting information in my latest research. Is my ex within her rights to deny me access to the professionals dealing with my child? I simply want to share my observations with my daughter's doctors and therapists and ask them questions so I can learn more about their process and treatment plans. Do I have the right to do this, and to access their recent notes on my daughter? Or is this something I have to pursue via a new court order?

    p.s. I am self-rep (previously represented by legal aid) and I am hoping to go into trial as my ex wants to have complete control of everything.

  • #2
    I work for a medical specialist and I can tell you that no one wants to spend valuable time involved in the preparation and attendance at court. I would therefore advise you to put your questions in writing, cc your ex and go from there. You may or may not be provided information. You certainly would not be provided with doctor's clinical notes. That is something that would probably only be requested and provided at trial after you have jumped through the hoops. You can look up information online about expert witnesses and the process involved. Doctors are well aware of their patients rights as well as their legal rights and obligations.

    I think that you have to decide whether or not you want to proceed in an adversarial way (court orders) or if you can't simply find a better way to deal with your ex.

    What exactly is your daughter's medical/psychological issue?

    I'm sure Tayken can provide you with some good information and resources in this area.

    Without more information, and after a very brief search on CanLII Alberta, this case might be of interest to you as the judge believes it is important for non-custodial parents to have access to children's medical records in the case of an emergency:

    http://www.canlii.org/en/ab/abqb/doc...&resultIndex=6

    So you may need to get a court order but I hope that you can avoid this and simply get consent from the mother. One wonders if you are trying to discredit the doctor or truthfully simply trying to find out information about your child.

    Presumably you are in Ontario - the following case will probably be of relevance to you?

    http://www.canlii.org/en/on/onhparb/...&resultIndex=3
    Last edited by arabian; 12-07-2016, 08:10 PM. Reason: addition of case law

    Comment


    • #3
      On my post above I have added some case law which may or may not be of interest/relevance to you.

      Welcome to the forum!

      Comment


      • #4
        Thank you for the links and advice so far @arabian! I am specifically requesting to speak with a psychiatrist and behavioural therapist who seem to be working together on my daughter's new treatment plan. I will definitely put my questions in writing and cc my ex, and hopefully that leads to some answers. I have no intention of discrediting them - only hoping to have some questions answered as my ex has remains reluctant to provide information. I would also like to provide them with the same observations I share with my ex regarding my daughter's behavioural issues when she is at my home, so I can hear any thoughts or opinions they might have.

        My ex has claimed in her affidavits that I have mental issues (among other issues to point me out as an unfit parent) and I believe she views our daughter in the same light. I believe this has already done some damage to my daughter's self-esteem and self-confidence. My daughter has been diagnosed with ADHD and ODD, but my ex doesn't seem to believe that ADHD is to blame for all of our daughter's behavioural issues. I agree, but we both attribute it to different things. Nevertheless, my ex has consented to putting our daughter on ADHD medication. I suggested an alternative form of therapy to try first, but it wasn't considered.

        My daughter has been complaining about feeling "empty" and "gloomy" when she is at her mother's, for over a year now. She has been more vocal about her feelings in the last few months. She has also been more prone to headaches, stomach aches, sleepless nights, and outbursts at school since school resumed in September. Our visits also went back to weekends only, as opposed to alternating weeks over the summer and extra days per her request. My daughter has also been more emotional, often crying about her fear of not getting to see me more often. This seems to have been re-triggered by a few lies told to her.

        As the days pass, I worry more and more about the long-term impact everything is having on my daughter. She is far too young to be aware of and concerned about the things she has been sharing with me lately.

        Comment


        • #5
          Thanks very much for your response. I am sure others with similar experiences will respond and offer suggestions. I understand your anxiety about your daughter's diagnosis. My humble observation is that parents often like to find a "diagnosis" for a child's maladaptive behavior to custody change.... why address the real issue when one can simply label a child and treat with medication.... There are, of course, many different views on this. Your concern is credible and understandable IMO.

          Many people who contribute to this forum are in similar situation with children "diagnosed" with ADHD and ODD.

          You sound like an intelligent self-represented individual who understands the issues with medico-legal issues in family law.

          Comment


          • #6
            If your ex has sole custody (even if it's "interim" or "temporary"), she can deny you access to medical information about the child. Sole custody means that she has all the decision-making authority. Not sharing information with you is not good parenting practice, but it's completely legal. If you want the right to be involved in your child's treatment, you will need to obtain joint custody, in which both parents participate in decision-making (joint custody is possible in situations like yours where the child resides with one parent and visits the other). Doctors and therapists will not share information with you unless you have custody. You can email or contact them to share your observations, but don't expect any information in return.

            It sounds like your ex is willing to have you meet with your child's therapist as long as she is also present (but the meeting never happened because the date and time didn't work for you, from your first post). You don't say why this date and time didn't work, but I suggest you keep trying to reschedule with your ex, and make this meeting your highest priority (cancel your other commitments, phone in sick if you have to).

            Bear in mind that you see your daughter only on weekends and a few other days, and her behavior may be quite different when she is with her mother most of the time. Kids are also very good at picking up on tension or hostility between parents and acting it out (e.g. telling Dad you don't want to go back to Mom; telling Mom you don't want to visit Dad).

            I suggest you continue keeping in contact with your daughter's teachers, but do so through email. Teachers are overworked, so dealing with weekly phone calls from a noncustodial parent in a high-conflict divorce will not be high on their priorities. With email, they can respond when they have time. You can also cc your ex on these emails for maximum transparency.

            Joint custody is really the only way out of this situation. It sounds like you are moving towards it as quickly as possible. If the reason your ex was awarded sole custody was because of your alleged mental health issues, you'll need to demonstrate that these issues have either been resolved or do not interfere with your ability to parent, which means showing that you have sought psychological help, whether or not you think you need it.

            Comment


            • #7
              Originally posted by stripes View Post
              If your ex has sole custody (even if it's "interim" or "temporary"), she can deny you access to medical information about the child.
              Actually this is incorrect. Sole Custody does not automatically block a parent from accessing information about their child. The court order that currently exists would have to explicitly state that the parent does not have access to the records. Criminals locked up in jail have access to their children's medical records who do not have "sole custody".

              So if the court order is absent on the documentation the parent DOES INDEED have access to these records and information. Many people incorrectly believe they do not have access to the information.

              If you get grief from the clinicians you can request the records disclosure through their colleges of practice. The college of physicians and surgeons is the governing body for MDs as an example. Each clinical speciality has a "college" that governs their conduct.

              Many doctors do not understand the details of the federal and local jurisdictional legislation on medical records and disclosure requirements. In fact, doctors are required in every province to provide copies of their records to any patient requesting them. There are only a few finite situations where they can refuse. (If the patent may suffer a significant medical trauma if they are exposed to their records.)

              If a doctor refuses you a copy of your medical records you contact their governing college right away. All residents of Canada are permitted access to their medical records! Point blank.

              Originally posted by stripes View Post
              Sole custody means that she has all the decision-making authority. Not sharing information with you is not good parenting practice, but it's completely legal.
              Again, correct but, incorrect. Sole custody is about authority to make decisions about the children. But, it does not prevent a parent for accessing their children's school and medical records and contacting their clinicians to gather information... *unless* the court order explicitly states you are not permitted to this. By default all parents have access to the medical records of their children and school records unless explicitly ordered that they can't.

              For example, the infamous Luba has access to all of the child's medical records and educational records. Justice Pazaratz and Harper had to explicitly write that she had access to the records because she was harassing WD so much for copies and didn't believe the judges when they told her to get the records herself and that NOTHING was preventing her from getting them. So in contravention of the given advice that "sole custody" prevents access to medical records this information is incorrect.

              Case on point:

              https://www.cmpa-acpm.ca/-/respondin...edical-records

              Case scenario
              You are the physician for two children, ages four and six, who live with their mother and visit their father on weekends and some evenings. The parents communicate poorly, and the father feels his ex-wife has not kept him informed about the children's health and medications. He has requested a copy of their records. The mother would prefer that her ex-husband not be given any information because she believes he will misuse the information in an attempt to obtain custody. The children have had ear infections. Both are allergic to cats. There is a cat in the mother's home.

              Question: Is the father entitled to medical information about his children?

              Answer: Yes, as an access parent he is entitled to this information. If there is any doubt about the father's access rights, you should ask for a copy of any existing custody and access agreement or court order.

              Question: Is the mother's consent required for release of the children's information to the access parent?

              Answer: No.
              This is guidance to CLINICIANS.

              Originally posted by stripes View Post
              If you want the right to be involved in your child's treatment, you will need to obtain joint custody, in which both parents participate in decision-making (joint custody is possible in situations like yours where the child resides with one parent and visits the other).
              Again incorrect but correct. If you want to be considered when making decisions about treatment options joint (or sole) custody is required. But, not having joint custody and / or sole custody does not mean you cannot be involved in the treatment of the child.

              In fact, the doctor has a legal fiduciary duty to involve you when collecting information and observations about the child. Considering the time that the child spends with you it would be clinically negligent if they didn't involve you in some what in your child's treatment. They are also required under law to provide you access to the records unless the court order EXPLICITLY prevents you form accessing the records!


              Originally posted by stripes View Post
              Doctors and therapists will not share information with you unless you have custody. You can email or contact them to share your observations, but don't expect any information in return.
              Buzz. Incorrect. See above.

              I would advise any reader to disregard Stripes' information contained in this page. It is completely inaccurate and incorrect. Sorry Stripes generally your position is correct but, you are way off base on this situation.

              Good Luck!
              Tayken

              Comment


              • #8
                http://www.canlii.org/en/on/onhparb/...&resultIndex=3

                I thought this was quite interesting (I posted earlier on this thread).

                Comment


                • #9
                  Originally posted by arabian View Post
                  http://www.canlii.org/en/on/onhparb/...&resultIndex=3

                  I thought this was quite interesting (I posted earlier on this thread).
                  It isn't professional miss conduct though. So the reference isn't all that important. The parent in this matter should have made a request for information through the college and NOT made a complaint.

                  Complaints are for disruptive conduct and not because a clinician doesn't understand the law. A phone call does not constitute a request for information. That should have been done in writing and with the supporting documentation.

                  Angry parents make all sorts of demands. You get more when you use honey and not machine guns.

                  As well, the doctor acted in accordance with the law as noted in para 30. The parent got the information so there was no issue.

                  Key point. Provide the necessary information and don't make wild demands on the phone. In that case a doctor will always take the long way around. Had this parents sent the material (via fax) to the doctor after the phone call there wouldn't have been an issue. Angry parents do angry things... Filing a complaint after you provided the information the doctor requested is a stupid thing to do.

                  I would rely upon the CMPA's information in this case... They are the legal defence fund for most (if not all) doctors.

                  Good Luck!
                  Tayken
                  Last edited by Tayken; 12-08-2016, 11:25 AM.

                  Comment


                  • #10
                    You're right, I checked and the CMPA says that doctors can release medical records to non-custodial parents as long as that parent has some right of access to the child, but doctors must ensure that the record does not contain information about any person other than the child. However, decision-making still rests with the parent who has custody. So I was half-right, half-wrong. (And I'm not sure how this works in the case of a counselling or psychotherapeutic relationship where confidentiality is part of the therapeutic process). So I think it goes like this:

                    Custodial parent (sole or joint): Right to make decisions concerning child's health/welfare/education.
                    Non-custodial parent who has access to the child: Right to make inquiries and to access information about the child but no right to make decisions.
                    Non-custodial parent with no access to the child: No right to make inquiries or receive information.

                    (One inaccuracy in Tayken's post - a doctor or therapist does not have a legal duty to actively contact a non-custodial parent. Contacting the other parent would be up to the doctor's professional judgment. In the case of severe behavioral disturbances, contacting the non-custodial parent would be good practice; in the case of other things, not so much. Depending on how the child presented to the treating doctors, informing Dad may or may not be deemed necessary by the doctor. This doesn't prevent Dad for asking to see records if he learns that Kid is seeing a particular doctor).

                    It sounds like Mom is okay with the idea of meeting with Dad and the therapist but that scheduling gets in the way - which seems like a problem that can be solved. But ultimately, Dad really needs to work towards joint custody.

                    Comment


                    • #11
                      I agree that the non-confrontational and child-centered approach is the best way to approach a doctor for information. I would suggest that when people send written requests for information that they have someone proof-read the request prior to sending to ensure the tone of the request is not aggressive.

                      Comment


                      • #12
                        Originally posted by stripes View Post
                        If your ex has sole custody (even if it's "interim" or "temporary"), she can deny you access to medical information about the child. Sole custody means that she has all the decision-making authority. Not sharing information with you is not good parenting practice, but it's completely legal. If you want the right to be involved in your child's treatment, you will need to obtain joint custody, in which both parents participate in decision-making (joint custody is possible in situations like yours where the child resides with one parent and visits the other). Doctors and therapists will not share information with you unless you have custody. You can email or contact them to share your observations, but don't expect any information in return.
                        First off, thank you for your input stripes. I'm actually seeking joint custody while she is seeking sole. Unfortunately, she refuses to consider anything less than sole custody and sole decision making (for her of course).

                        Originally posted by stripes View Post
                        It sounds like your ex is willing to have you meet with your child's therapist as long as she is also present (but the meeting never happened because the date and time didn't work for you, from your first post). You don't say why this date and time didn't work, but I suggest you keep trying to reschedule with your ex, and make this meeting your highest priority (cancel your other commitments, phone in sick if you have to).
                        It is exam season and there are very few circumstances that would allow me to be exempted from school obligations. As of last night, my ex has rejected the option of rescheduling, but I have asked that she consider allowing a phone conference between her, our child's therapist, and myself.

                        Originally posted by stripes View Post
                        Bear in mind that you see your daughter only on weekends and a few other days, and her behavior may be quite different when she is with her mother most of the time. Kids are also very good at picking up on tension or hostility between parents and acting it out (e.g. telling Dad you don't want to go back to Mom; telling Mom you don't want to visit Dad).
                        Yes, I discovered this to be the case last year. I actually asked my ex on several occasions if she would be willing to sit down together with our daughter and speak to her about the contrasting stories being told to each of us. She ignored my requests but acknowledged the need to discourage this behaviour. This past year, however, my daughter has been more consistent and clear in both homes about where she "feels real love" and how much she wants to live with dad. My ex has begrudgingly confirmed this a few times, but is quick to offer up reasons as to why our daughter's feelings should not be taken seriously.

                        Originally posted by stripes View Post
                        I suggest you continue keeping in contact with your daughter's teachers, but do so through email. Teachers are overworked, so dealing with weekly phone calls from a noncustodial parent in a high-conflict divorce will not be high on their priorities. With email, they can respond when they have time. You can also cc your ex on these emails for maximum transparency.
                        Thank you for this suggestion. Since September of last year, the teachers (and principal) have been supportive of me calling as often as I wish. They also give my daughter the freedom to call me during class as they feel talking to me has been helpful in calming her down when she is having a difficult day. I will inquire about possible email communication though, in case it happens to be their preferred method.

                        Originally posted by stripes View Post
                        Joint custody is really the only way out of this situation. It sounds like you are moving towards it as quickly as possible. If the reason your ex was awarded sole custody was because of your alleged mental health issues, you'll need to demonstrate that these issues have either been resolved or do not interfere with your ability to parent, which means showing that you have sought psychological help, whether or not you think you need it.
                        My ex hasn't actually been awarded sole custody. This was something I consented to early on in our case. This was over 2 years ago and I have to check that order again, but I believe it had something to do with my daughter requiring medical services and my ex and I live in different municipalities. As far as my mental health issues, I have only ever been diagnosed with PTSD. I have an assessment from 2015 where a psychiatrist writes that I have recovered. I also have the psychiatrist I received treatment from confirming the same.

                        Comment


                        • #13
                          Originally posted by arabian View Post
                          Thanks very much for your response. I am sure others with similar experiences will respond and offer suggestions..
                          Thank you very much for your help so far, arabian. It is encouraging to hear/read that I am not alone in my experience. It has been slightly frustrating to deal with someone who seems more intent on keeping me out of the picture than actually helping our child. There is a considerable age gap between my ex and I, and during the course of our relationship, I always felt that I was treated more like one of her older children than a partner. I had no idea until this case began the extent that she would go to, to maintain control of everything. However, I am determined to ensure that my daughter's best interests are truly being looked after.

                          Comment


                          • #14
                            Originally posted by Tayken View Post
                            Actually this is incorrect. Sole Custody does not automatically block a parent from accessing information about their child. The court order that currently exists would have to explicitly state that the parent does not have access to the records. Criminals locked up in jail have access to their children's medical records who do not have "sole custody".
                            Thank you so much Tayken for helping clarify this issue for me. My initial research showed that this was indeed the case. There is no court order stating that I am not permitted to access my child's medical records or contact physicians to ask questions. There is an order stating that I consented to my ex having sole temporary custody, and another where she is ordered to immediately provide me with medical and educational assessments (of our daughter) as she was reluctant to provide them.

                            Originally posted by Tayken View Post
                            In fact, the doctor has a legal fiduciary duty to involve you when collecting information and observations about the child. Considering the time that the child spends with you it would be clinically negligent if they didn't involve you in some what in your child's treatment.
                            This seems logical to me as well - that sharing my observations are more likely to be helpful than harmful. I also don't see the harm in asking the doctor and therapist about their treatment plan so I can better educate myself on what my daughter will be going through over the next few months. Last year, once I learned more about what my daughter was struggling with from the medical assessments I mentioned, I immediately borrowed books to educate myself on the topic so I could adapt my parenting techniques if I needed to. With this new pharmaceutical treatment my daughter is receiving, I naturally have questions about side effects, dosages, expectations, etc, and my ex will not share any information she receives from the doctors.

                            Originally posted by Tayken View Post
                            So if the court order is absent on the documentation the parent DOES INDEED have access to these records and information. Many people incorrectly believe they do not have access to the information.
                            In response to the email in which my ex proclaims that I am not permitted to speak to our child's therapist or doctor without her, I politely reminded her that there is no order explicitly stating this to be the case. I also reminded her that there is no order requiring her to be an intermediary between the therapist and I, which she claimed was her right as the sole custodian. I also asked her to consider a phone conference between all of us since I am unable to attend the only meeting I was allowed to come to.

                            I think that regardless of her response I should call the therapist and doctor and let them know that I believe I have the right to ask them questions about their treatment plan. The therapist had offered to speak with me over the phone last week, until my ex called her and told her that she does not approve. Hopefully I get somewhere with either party tomorrow.

                            Comment


                            • #15
                              Why don't you simply request a meeting with the therapist, doctor and your ex?
                              Come armed with specific questions.... If this isn't feasible then I'd recommend faxing a letter to the therapist and doctor with your specific questions and/or a request for an appointment to meet with them to discuss your concerns.

                              Comment

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