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3.3 Information Sharing and Confidentiality

RELATED GUIDANCE

Information Sharing: Advice for Practitioners Providing Safeguarding Services (March 2015)

AMENDMENT

In December 2015, this chapter was significantly updated and should be re-read throughout.


Contents

  1. Introduction
  2. The Concept of Information Sharing
  3. Key Points for Workers when Sharing Information
  4. Confidentiality and Consent
  5. Supply of Information Requested by the Rotherham LSCB
  6. National Guidance on Information Sharing


1. Introduction

Research and experience have shown repeatedly that keeping children safe from harm requires professionals and others to share information:

  • About a child's health and development, and exposure to possible harm;
  • About a parent who may need help, or may not be able, to care for a child adequately and safely; and
  • About those who may pose a risk of harm to a child.

Often, it is only when information from a number of sources has been shared and is then put together, that it becomes clear a child is at risk of suffering Significant Harm.

Those providing services to adults and children, for example GP's, will be concerned about the need to balance their duties to protect children from harm and their general duty of care towards their patient or service user, e.g. a parent. Some professionals and staff face the added dimension of being involved in caring for or supporting more than one family member - the abused child, siblings, and an alleged abuser. In English Law, where there are concerns that a child is, or may be, at risk of significant harm, the overriding consideration is to safeguard the child.

If staff are unsure whether the threshold for significant harm to a child has been met, advice can be requested from senior colleagues or the Multi-Agency Safeguarding Hub (MASH) or staff at the Safeguarding Children Advisory Service.


2. The Concept of Information Sharing

Working Together to Safeguard Children 2015 states that "Safeguarding and promoting the welfare of children, and in particular protecting them from significant harm depends upon effective joint working between agencies and professionals that have different roles and expertise. Individual children, especially some of the most vulnerable children and those at greatest risk of social exclusion, will need co-ordinated help from Health, Education, Children's Social Care and quite possibly the voluntary sector and other agencies, including youth justice services".


3. Key Points for Workers when Sharing Information

The general principle is that information will only be shared with the consent of the subject of the information.

Sharing confidential information without consent will normally be justified in the public interest in the circumstances shown in Section 4, Confidentiality and Consent.

The Seven Golden Rules for Information Sharing

  1. Remember that the Data Protection Act 1998 and human rights laws are not barriers to justified information sharing but provide a framework to ensure that personal information about living individuals is shared appropriately;
  2. Be open and honest with the individual (and/or their family where appropriate) from the outset about why, what, how and with whom information will, or could be shared, and seek their agreement, unless it is unsafe or inappropriate to do so;
  3. Seek advice from other practitioners if you are in any doubt about sharing the information concerned, without disclosing the identity of the individual where possible;
  4. Share with informed consent where appropriate and, where possible, respect the wishes of those who do not consent to share confidential information. You may still share information without consent if, in your judgement, there is good reason to do so, such as where safety may be at risk. You will need to base your judgment on the facts of the case. When you are sharing or requesting personal information from someone, be certain of the basis upon which you are doing so. Where you have consent, be mindful that an individual might not expect information to be shared;
  5. Consider safety and well-being: Base your information sharing decisions on considerations of the safety and wellbeing of the individual and others who may be affected by their actions;
  6. Necessary, proportionate, relevant, accurate, timely and secure: Ensure that the information you share is necessary for the purpose for which you are sharing it, is shared only with those people who need to have it, is accurate and up-to-date, is shared in a timely fashion, and is shared securely (Practitioners must always follow their organisation’s policy on security for handling personal information);
  7. Keep a record of your decision and the reasons for it - whether it is to share information or not. If you decide to share, then record what you have shared, with whom and for what purpose.

Source:- Information Sharing: Advice for Practitioners Providing Safeguarding Services (March 2015).

Each situation should be considered on a case-by-case basis. Professionals should always seek advice from senior colleagues, including those in legal services, where clarity is required; in the first instance practitioners should speak to their manager.

The Information sharing guidance for Practitioners makes a point which should be borne in mind. Information can be held in many different ways, in case records or electronically in a variety of IT systems with access for different professionals. The use of emails in professional communications also raises another mechanism for sharing information other than in direct person to person contact. However the information is shared, it should always be recorded in the individual’s record.


4. Confidentiality and Consent

Information Sharing: Advice for Practitioners Providing Safeguarding Services (March 2015) states that:

Wherever possible, you should seek consent or be open and honest with the individual (and/or their family, where appropriate) from the outset as to why, what, how and with whom, their information will be shared. You should seek consent where an individual may not expect their information to be passed on and they have a genuine choice about this. Consent in relation to personal information does not need to be explicit – it can be implied where to do so would be reasonable, i.e. a referral to a provider or another service. More stringent rules apply to sensitive personal information, when, if consent is necessary then it should be explicit. But even without consent, or explicit consent, it is still possible to share personal information if it is necessary in order to carry out your role, or to protect the vital interests of the individual where, for example, consent cannot be given. Also, if it is unsafe or inappropriate to do so, i.e. where there are concerns that a child is suffering, or is likely to suffer significant harm, you would not need to seek consent. A record of what has been shared should be kept.

It is also possible that an overriding public interest would justify disclosure of the information (or that sharing is required by a court order, other legal obligation or statutory exemption). To overcome the common law duty of confidence, the public interest threshold is not necessarily difficult to meet – particularly in emergency situations. Confidential health information carries a higher threshold, but it should still be possible to proceed where the circumstances are serious enough. As is the case for all personal information processing, initial thought needs to be given as to whether the objective can be achieved by limiting the amount of information shared – does all of the personal information need to be shared to achieve the objective?


5. Supply of Information Requested by the Rotherham LSCB

The Rotherham LSCB plays a strong role in supporting information sharing between and within organisations and addressing any barriers to information sharing. This includes ensuring that a culture of appropriate information sharing is developed and supported as necessary by multi-agency training. In addition, the LSCB can require an individual or body to comply with a request for information, as outlined in section 14B of the Children Act 2004. This can only take place when the information requested is for the purpose of enabling or assisting the LSCB to perform its functions, such as audits and quality assurance. Any request for information about individuals should be necessary and proportionate to the reason for the request. The RLSCB is mindful of the burden of requests and will explain why the information is needed.


6. National Guidance on Sharing Information

Working Together 2015 states that:

“… all organisations should have arrangements in place which set out clearly the processes and the principles for sharing information between each other, with other professionals and with the LSCB; and no professional should assume that someone else will pass on information which they think may be critical to keeping a child safe. If a professional has concerns about a child’s welfare and believes they are suffering, or likely to suffer, harm, then they should share the information with local authority Children’s Social Care.

Information Sharing: Advice for practitioners providing safeguarding services to children, young people, parents and carers (2015) supports frontline practitioners working in child or adult service who have to make decisions about sharing personal information on a case- by-case basis. The guidance can be used to supplement local guidance and encourage good practice in information sharing.” (Working Together 2015)

Where there is a clear risk of significant harm to a child, or serious harm to adults, the public interest test will almost certainly be satisfied. However, there will be other cases where practitioners will be justified in sharing some confidential information in order to make decisions on sharing further information or taking action. The information shared should be proportionate. Decisions in this area need to be made by, or with the advice of, people with suitable competence in Child Protection work such as named or designated professionals or Senior Managers.

Agencies can also make reference to local information sharing protocols at this point.

The Data Protection Act 1998 requires that:

Personal information is obtained and processed fairly and lawfully; only disclosed in appropriate circumstances; is accurate, relevant and not held longer than necessary; and is kept securely.

The Act balances the rights of the information subject (the individual whom the information is about) and the need to share information about them. Never assume sharing is prohibited – it is essential to consider this balance in every case. The Information Commissioner has published a statutory code of practice on information sharing to help organisations adopt good practice (see ICO website).

Caldicott Standards:

Are applicable to Children and Young People's Directorate and Health Trust. These standards have applied to NHS organisations for some time. They have more recently been extended into councils with Social Care responsibilities, in order to provide a framework for working within the Data Protection Act 1998 and to promote appropriate information sharing.

Every local Health Service and Children and Young People's Directorate has its own Caldicott Guardian, to provide advice and guidance on appropriate information sharing.

The Seven Caldicott Principles

  1. Justify the purpose(s) for using confidential information;
  2. Don't use personal confidential data unless it is absolutely necessary;
  3. Use the minimum necessary personal confidential data;
  4. Access to personal confidential data should be on a strict need-to-know basis;
  5. Everyone with access to personal confidential data should be aware of their responsibilities;
  6. Comply with the law;
  7. The duty to share information can be as important as the duty to protect patient confidentiality.

Section 115 in the Crime & Disorder Act 1998 establishes:

The power to disclose information is central to the Act's partnership approach. The Police have an important general power under common law to disclose information for the prevention, detection and reduction of crime. However, some other public bodies that collect information may not previously have had power to disclose it to the Police and others. This section puts beyond doubt the power of any organisation to disclose information to Police authorities, local authorities, Probation Service, Health Authorities, or to persons acting on their behalf, so long as such disclosure is necessary or expedient for the purposes of crime prevention. These bodies also have the power to use this information.

Article 8 in the European Convention on Human Rights states that:

  • Everyone has the right to respect for his/her private and family life, home and correspondence;
  • There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.

Safer Recruitment Guidance:

Keeping Children Safe in Education

'Statutory Guidance on Making Arrangements to Safeguard and Promote the Welfare of Children under Section 11 of the Children Act 2004' also provides guidance in relation to the duties of LSCB partners when recruiting and employing staff.

NEVER DELAY EMERGENCY ACTION TO PROTECT A CHILD FROM HARM

Child Sex Offender Disclosure Scheme

The Child Sex Offender Review (CSOR) Disclosure Scheme is designed to provide members of the public with a formal mechanism to ask for disclosure about people they are concerned about, who have unsupervised access to children and may therefore pose a risk. This scheme builds on existing, well established third-party disclosures that operate under the Multi-Agency Public Protection Arrangements (MAPPA).

Police will reveal details confidentially to the person most able to protect the child (usually parents, carers or guardians) if they think it is in the child’s interests.

The scheme has been operating in all 43 police areas in England and Wales since 2010. The scheme is managed by the Police and information can only be accessed through direct application to them.

If a disclosure is made, the information must be kept confidential and only used to keep the child in question safe. Legal action may be taken if confidentiality is breached. A disclosure is delivered in person (as opposed to in writing) with the following warning:

  • 'That the information must only be used for the purpose for which it has been shared i.e. in order to safeguard children;
  • The person to whom the disclosure is made will be asked to sign an undertaking that they agree that the information is confidential and they will not disclose this information further;
  • A warning should be given that legal proceedings could result if this confidentiality is breached. This should be explained to the person and they must sign the undertaking’ (Home Office, 2011, p16).

If the person is unwilling to sign the undertaking, the police must consider whether the disclosure should still take place.

The Domestic Violence Disclosure Scheme

The Domestic Violence Disclosure Scheme (DVDS) commenced on 8 March 2014. The DVDS gives members of the public a formal mechanism to make enquires about an individual who they are in a relationship with, or who is in a relationship with someone they know, where there is a concern that the individual may be violent towards their partner. This scheme adds a further dimension to the information sharing about children where there are concerns that domestic violence and abuse is impacting on the care and welfare of the children in the family.

Members of the public can make an application for a disclosure, known as the ‘right to ask’. Anybody can make an enquiry, but information will only be given to someone at risk or a person in a position to safeguard the victim. The scheme is for anyone in an intimate relationship regardless of gender.

Partner agencies can also request disclosure is made of an offender’s past history where it is believed someone is at risk of harm. This is known as ‘right to know’.

If a potentially violent individual is identified as having convictions for violent offences, or information is held about their behaviour which reasonably leads the police and other agencies to believe they pose a risk of harm to their partner, a disclosure will be made.

Age Assessment Information Sharing for Unaccompanied Asylum Seeking Children

The issue of age assessment in social work with asylum seeking young people remains controversial and has been something that Children’s Social Care have struggled with since the millennium. The ADCS Asylum Task Force has worked with the Home Office to provide two new jointly agreed documents, as detailed below. These documents are offered as practice guidance, by way of assistance to local authorities and their partners. The use of the proforma and consent form is voluntary. The content does not, nor does it seek to, be binding on local authorities. It is simply a recommended approach.

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