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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION
Chapter 5. Medical Issues
There are a number of concerns about the current nature and understanding of the law in relation to medical matters, including consent, and particularly in adoption. While the Review is not charged with a wholesale enquiry into this complex area, it would be inappropriate for this Paper to ignore it.
Particular concerns are:
(a) Medical information about children and consent thereto.
A medical assessment is required, in terms of regs.8(a) and (b), 9(1)(a) and (b) and Schedule 2 of the 1996 Regs, for a child's adoption/freeing medical report. Difficulties occur when the child is too young to consent to the assessment and the birth parent does not do so. Where the long-term plans for a child are disputed, a birth parent may jeopardise planning for a child by refusing to consent; or, if absent, by being unavailable to do so. There are ways round the situation where the parent is absent (s.5 of the 1995 Act) but these are not totally satisfactory. If duties are laid on local authorities and adoption agencies to obtain medical information and reports on a child for whom they are making plans, there needs to be some consideration of how this can be done, with or without the birth parent's consent. In England and Wales, where a child is subject to a care order, this problem does not arise, as the local authority, sharing parental responsibility, can consent.
(b) Medical information about birth parents and consent thereto
There needs to be consideration of the issue of obtaining information about a birth parent's health from his or her medical practitioner, where there is no consent from the birth parent. In practice, there are difficulties for local authorities and adoption agencies in obtaining information in three types of situation. These are where:
- there is no consent because the birth parent has never been asked;
- there is no consent because the birth parent has disappeared or is otherwise absent and therefore cannot be asked;
- there is no consent because there is a positive refusal to agree.
There are serious issues here about medical confidentiality, particularly in the third situation. However, it is increasingly clear, particularly with current developments in genetics, that the more available information there is about a child's and birth family's health during planning and placement, the easier it will be to deal with ongoing health issues for the child, through into adulthood. In the past, a certain amount of information was usually available, even without the consent of the birth parent, but birth parents' doctors are, quite rightly, increasingly concerned about requests for information when there is no explicit consent from their patients. The fact that the authorities/agencies and their medical advisers see a need for such information, putting a child's welfare as paramount, does not mean that the parents' doctors can release information without their patients' consent.
There needs to be some discussion about what processes might be available in the three different situations mentioned, balancing the interests of children and birth parents. In particular, consideration needs to be given to a system to ensure that birth parents are actually asked about consent. Another possibility is having a system which allows blood tests on children in certain cases.
(c) Medical reports on prospective adopters
When prospective adopters are being assessed, agencies are charged with obtaining comprehensive medical reports on them, in terms of regs.9(1)(a) and (b) and Schedule 2, Part IV, of the 1996 Regs. Obviously, such reports and information can only be obtained with the consent of the prospective adopters. If they refuse to consent, the necessary investigation cannot be completed on them, and agencies would be justified in not approving them. However, even when prospective adopters do consent, questions sometimes arise as to how much information is put into reports, and made available to agencies through a medical advisor. General practitioners are sometimes reluctant to include written information which they think might be unhelpful to their patients' application, but often disclose such information verbally if contacted directly by medical advisors. This is not particularly helpful to any of the parties. Consideration needs to be given to clearer guidance for general practitioners and consultants dealing with prospective adopters, possibly requiring doctors to disclose all information. Consent forms signed by prospective adopters should reflect this clearly.
(d) Disclosure of medical information about prospective adopters
There can be issues about the disclosure of medical information obtained on prospective adopters in disputed cases, where a child is already placed for adoption. Agents for birth parents can and do call for production of the medical and other reports made available to adoption panels and minutes from adoption panels. If these papers include confidential medical information about prospective adopters, which information might or might not assist disputing birth parents, should this automatically be disclosed to the other parties in the application? Consideration needs to be given to a clear and simple system for ensuring that there is no inappropriate disclosure of confidential medical information, without prejudicing the rights of any of the parties in a disputed case.
(e) 'Registered medical practitioner' to include a registered nurse
Regulation 13(1) of the LA Regs requires an examination and a report and by 'a registered medical practitioner' for a 'looked after' child who is placed away from home. Similarly, regs.8(b) and 9(1)(b) of the 1996 Regs require a report by a 'fully registered medical practitioner', about a child for whom the plan is adoption, with or without freeing. There is an increasing trend to involve registered nurses in assessments and examinations of all patients, including children. Nurse practitioners do carry out these tasks, but it would be useful to have definitions of the phrases in the regulations for the avoidance of doubt, to make it clear that they are included as well as doctors.
(f) Access by adoptees to medical information and records of birth families
There are problems for adult adoptees and adopters of younger adoptees, who need access to medical information about the adoptees' birth family. In most families, this sort of information is informally available and easily accessed, but this is usually not possible after an adoption. Consideration needs to be given to whether a system can be developed to allow access to this information after adoption, without unnecessarily compromising confidentiality.
QUESTIONS:
9. What are views on the issues raised, (a) to (f)?
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