HSE failed to deal with guardianship rights of father

The health services failed to seek consent from a parent for early intervention treatment for his child despite previously getting legal advice in this area and being told they should. Emma Browne reports

The HSE North Eastern region had no policies or procedures for dealing with non-custodial parents with guardianship rights as recently as December 2005 and no policy for managing customer complaints, according to an independent investigation published last December.

The investigation looked into complaints by a man against the North Eastern Health Board (now the HSE North Eastern region) Early Intervention Service unit (EIS). His main complaint was that the HSE had not sought his permission or involvement as a non-custodial parent when dealing with his daughter, who was being treated by the EIS.

The investigation found: there were no policies or procedures to deal with the issue of guardianship by non-custodial parents and their consent to treatment within the HSE North East region; the EIS had no knowledge of the Guardianship of Infants Act 1964 – the main legislation with regards to guardianship; the EIS were at times defensive in dealing with the man in question; the HSE Eastern region had no policy in place in relation to managing customer complaints.

In July 2003 Mr Jones (the man does not want to be named for legal reasons) discovered through a court case that his daughter had been referred to the EIS and was being treated by them. The EIS was set up in the North Eastern Health Board in 2000 and offers services to children with learning or physical disabilities or developmental problems. Jones had previously been married to his daughter's mother, so under the Guardianship of Infants Act 1964 Jones had rights as a guardian, even though he was not the custodial parent. He attempted to become involved in his daughter's case and requested that he be consulted regarding all aspects of it. He says the HSE North Eastern region was resistant to his involvement and did not know how to deal with the situation. It was the first time that the EIS had come across the issue of guardianship. After an ongoing dispute between Jones and the EIS the independent investigation was set up to look into his complaints. The independent investigation was conducted by Clive Garland, Edgeworth Organisational Consultants, Sligo; and Brendan Casey Area Manager, Cavan/Monaghan Disability Services.

The report says that the HSE did not deliberately exclude Jones, and the HSE now accept they should have sought his consent and made mistakes.

It says that Jones should have been involved in the treatment options for his daughter from the beginning, but that "the issue of including fathers in treatment options was not the norm at the time".

Although the HSE had no policies or procedures relating to non-custodial parents this was not the first time that they had sought legal advice on the matter. According to the report the "HSE solicitor finds herself 'surprised and concerned that the questions of Guardianship and Custody have come up again... I have repeatedly over many years past advised the Health Board both orally and in writing on these subjects'." The investigation team understands the legal position as: "HSE personnel need to be aware that all of a child's guardians (except in cases of emergency) give consent to any medical treatment... unless there is a court order restricting such rights."

At the time the report was concluded they said: "there is still no formal position, definitive line or sets of policies or procedures in relation to the guardianship and consent to treatment".

The report recommended that training be provided to staff to deal with non-custodial parents and guardianship issues. Other recommendations included a policy for managing complaints and seeking clarification on the legal position and implementing policies and procedures to reflect this.

When asked what recommendations and changes the HSE North Eastern region are making as result of the investigation, they said: "The recommendations for services locally are currently being implemented. Nationally the HSE is reviewing policies and procedures in this area and is considering the revision or introduction of national policy."

When the HSE Head Office was asked if there was a central policy and procedure on how to deal with non-custodial parents who have guardianship rights and if all HSE regions had policies or procedures in relation to guardianship in place, they said they were not aware of any "overarching" policy dealing with non-custodial parents and guardianship issues and said they would have to contact all regions to establish if they had policies.