Understand your obligations: treating children of separated parents

The Psychology Council of NSW receives many complaints about psychological services provided to children in separated families. In separating families, one parent usually engages the services of a psychologist for their child and accompanies them to an initial session. Most complaints are lodged by the non-accompanying parent. Sometimes the complaint is a result of significant acrimony between separated parents rather than a genuine practice issue. However, informed consent and confidentiality can be more complex in separated families. The Council often receives complaints about consent and confidentiality issues not being managed appropriately.

When working with separated families, psychologists must understand who can legally consent to psychological services, and obtain informed consent from the required parties. Psychologists must also understand their ethical and legal obligations around maintaining confidentiality and providing information.

Usually, each parent has parental responsibility regardless of their marital status. This parental responsibility can be exercised individually and it is usually sufficient for one parent to give informed consent for treatment to proceed. In separated families these principles also apply, but the Federal Circuit and Family Court of Australia may impose court orders that alter this status quo. Orders could include:

• maintaining parental responsibility for both parents but imposing a duty to inform of treatment
• requiring parental responsibility to be exercised jointly (both parents must agree for treatment to proceed)
• assigning parental responsibility to one party.

Psychologists must respect these orders when providing treatment to children of separated parents.

When children can consent

Practitioners must also consider whether a child has the capacity to consent to treatment. In Australia, there is no legislative provision setting out when a minor is capable of consent. Instead, health practitioners must assess capacity in accordance with the principles laid out in the English case of Gilickdownload (later upheld by the High Court of Australia in Marion’sdownload case). 

A minor is considered ‘Gilick competent’ – or a mature minor – if they have a “sufficient understanding and intelligence to enable him or her to understand fully what is proposed” by the treatment. Accordingly, psychologists must assess whether a minor can consent to psychological therapy or assessment on a case-by-case basis. When treating a mature minor, the minor’s consent is both necessary and sufficient for treatment to proceed. The wishes of their parent/s or guardian/s and parenting orders are not relevant.

Taken together, the rules around parental responsibility and mature minors suggest the sequence practitioners should follow when obtaining informed consent to treat the child of a separated family.

First, practitioners should determine if the child is Gilick competent to receive the psychological service. If so, only the child can consent to treatment.

If the child does not have Gilick competency, the practitioner must check whether parenting orders are in place, obtain the most recent orders, and comply with any orders relating to medical treatment. If no orders are in place, then only the consent of one parent is required.

Consent and accessing patient information

Assessing who can provide consent also has implications for who can access treatment information. The Health Records and Information Privacy Act (2002) provides a general right for individuals to access their health information held by a health practitioner. Under the Act, practitioners cannot refuse to give a patient their records unless:

• there is a threat to health or life
• the release of information would impact on third-party privacy
• there are legal restrictions on the release of information.

If a child cannot consent to treatment, the Act allows persons with parental responsibility to access the child’s health information. Parental responsibility refers to “all the duties, powers, responsibility and authority which, by law, parents have in relation to their children”. Accordingly, both parents will usually have the right to access treatment information.

A practitioner can only withhold health information if there are parenting orders clearly stating that a parent does not have parental responsibility for treatment decisions (or if another broad legal exception applies).

However, for mature minors with capacity to provide treatment consent, parents do not have the right to access their information. The minor must give permission for this access.

Beyond informed consent

Beyond obtaining informed consent and maintaining confidentiality, practitioners working with a child or children of a separated family have an ethical responsibility to offer psychological services responsibly and with care and skill.

If one parent requests treatment for their child without the other parent’s knowledge, practitioners should assess how involving or excluding the non-accompanying parent could impact the child's welfare.

Including both parents can often support treatment by ensuring parenting is consistent, that both parents reinforce learnings and skills, and treatment does not become an additional point of conflict. Further, engaging with only one parent risks developing a skewed understanding or inappropriately aligning with one parent.

 Key takeaways

• When a child is accompanied by one parent, psychologists must clarify whether the child’s parents are separated, and whether there are parenting orders in place that change parental responsibility.
• For children of separated parents, psychologists should confirm whether  parenting orders are in place, and understand the orders to ensure the accompanying parent can independently exercise their parental responsibility.
• Practitioners should determine the benefits and risks of including or excluding the non-accompanying parent at the outset of treatment.
• Psychologists must comply with any legal obligations to provide the non-accompanying parent information on request.

Ultimately, an accompanying parent may proceed with treatment without informing or including the other parent. However, practitioners should ensure the accompanying parent understands the limits of confidentiality, including limits affecting other parents or guardians when obtaining informed consent and accessing treatment information.

Understanding these principles can help practitioners manage complex confidentiality requirements with greater confidence, and improve both service delivery and patient outcomes.