COMMENTARY
THE ADOPTION (DISCLOSURE OF MEDICAL INFORMATION ABOUT NATURAL PARENTS) (SCOTLAND) REGULATIONS 2009
Regulations 1-3
1. Citation and commencement
These Regulations may be cited as the Adoption (Disclosure of Medical Information about Natural Parents) (Scotland) Regulations 2009 and come into force on 2009.
2. Interpretation
In these regulations-
"the Act" means the Adoption and Children (Scotland) Act 2007; and
"adoptive parents" means persons who are to or may adopt, or have adopted, the relevant child.
3. Application
These regulations apply subject to-
(a) the Adoption Agencies (Scotland) Regulations 2009;
(b) the Adoption Information (Scotland) Regulations 2009; and
(c) the Adoption (Disclosure of Information) (Scotland) Regulations 2009.
Regulations 1 and 2 provide for the commencement date and definitions to be used throughout the following Regulations. Where an expression is used in these Regulations it will have the same definition as in the Act unless a separate definition is provided.
Regulation 3 makes this set of regulations subsequent to the
The regulation will be updated if these regulations are combined. The purpose of this regulation is to ensure that the Adoption (Disclosure of Medical Information about Natural Parents) (Scotland) Regulations are not the first and only route used by adoption agencies to access medical information. In the first instance adoption agencies should attempt to collect this information with the consent of the natural parents when preparing the adoption case. Where consent is withheld and no other attempt to collect this information has been successful these regulations will place a duty on GP's to disclose only the information indicated in these regulations.
These regulations specifically deal with the disclosure of medical information while an adoption agency is gathering this information. It is our view that the regulations that deal specifically with the collection of information (the Adoption Information (Scotland) Regulations), the processes of adoption (the Adoption Agencies (Scotland) Regulations) and the disclosure of information on an adoption record (the Adoption (Disclosure of Information) (Scotland) Regulations) address the more general provisions relating to adoption information.
As an example, the draft Adoption Agencies (Scotland) Regulations currently indicates that an
"adoption agency must provide the prospective adopter with-
(a) written information about the child's background, parentage, health and mental and emotional development;
[…]
(c) a copy of the report as to the health of the child obtained under regulation 7(1)(d)(i)"
As Regulation 3 indicates that these regulations operate subject to the three sets of regulations indicated, we consider that provisions for disclosing information prior to an adoption, as is the case currently, is covered sufficiently. Your views on our interpretation are appreciated.
Q1 - Given the interaction with other relevant regulations, have these regulations addressed all the issues currently being experienced by adoption agencies and adoptive parents with regard to medical information?
Regulation 4
4. No automatic right of access to information
Neither the relevant child nor the adoptive parents have an automatic right to access information about the health of the natural parents of the relevant child.
Regulation 4 ensures that neither the child nor any potential adoptive parent has an automatic right to information collected under these regulations. The APRG report recommended that "professionals should consider carefully the need to disclose such information to adopted people and adopters". The release of information about the natural parent should only occur where this is necessary to plan properly for children who cannot live with their birth parents. Representations from various medical organisations, as well as other interested organisations and individuals, indicated that this information should only be disclosed by and to those with a duty of confidentiality to the information. As indicated above access to this information is regulated by provisions in other sets of regulations.
Regulation 5
5. Disclosure of medical information about natural parents
(1) Where an adoption agency has not been able to obtain the information specified in paragraph 32 of schedule 1 to the Adoption Agencies (Scotland) Regulations 2009, (whether there is any history of genetically transmissible or other significant disease in the family history of either the father's or mother's family) a registered medical practitioner holding any such information must disclose it to the adoption agency when requested to do so.
(2) Any information disclosed to an adoption agency under this regulation must be placed on the case record relating to an adopted child created under regulation 2 of the Adoption Information (Scotland) Regulations 2009.
(3) Any information disclosed to an adoption agency under this regulation must be treated by that agency as confidential.
Regulation 5 places a duty on any medical practitioner holding information indicated in these regulations to disclose that when all other attempts to get this information have been unsuccessful. Currently the information being sought is that at paragraph 32 of Schedule 1 of the draft Adoption Agencies (Scotland) Regulations that were published for consultation on 7 July 2008. This numbering will be addressed in the redrafting of the regulations and any reference will be updated accordingly. The information collected at paragraph 32 of Schedule 1 is "Whether there is any history of genetically transmissible or other significant disease in the family history of either the father's or mother's family". In drafting these regulations we have discussed this provision with various medical organisations who all indicated a desire that a decision on the extent of the information being disclosed remains with the Scottish Ministers. We are seeking views on whether there may be any other medical conditions which those involved in the process would like to see considered for inclusion as they would have a bearing on the welfare of the child. We propose either to indicate these in the regulations or make a Code of Practice.
Q2 - It is our intention to reserve the decision on the extent of the medical information sought under these regulations to Scottish Ministers. With that in mind, we would be interested in what information would be useful, and is sometimes not forthcoming, when collecting information to help in the planning for the child.