CHAPTER 4: Information Sharing & Confidentiality

Information relevant to child protection will be about:

• Health and development of a child and her/his exposure to possible harm
• A parent / carer who is unable to care adequately for a child
• Other individuals who may present a risk of harm to the child

The main sources of law and other relevant requirements with respect to information sharing and confidentiality in child protection are the:

• Common law duty of confidence
• European Convention on Human Rights (via its introduction into English law in the Human Rights Act 1998)
• Data Protection Act 1998
• Crime and Disorder Act 1998
• Children Act 1989
• Children Act 2004
• Caldicott Standards (Health and Children's Services)
• Non statutory government guidance on information sharing 2006
• Working Together to Safeguard Children 2010.

Please see the national Department for Education for a more detailed explanation of the national context for information sharing.

The 'Common Law Duty of Confidence' arises when a person shares information with another in circumstances where it is reasonable to expect that the information will be kept confidential e.g. a contract, a patient-doctor, solicitor-client, pupil-teacher relationship.

Personal information about children and families kept by professionals and agencies should not generally be disclosed without the consent of the subject.

The duty of confidence is not absolute and disclosure can be justified if:

• The information is not confidential in nature e.g. it is trivial or readily available elsewhere e.g. a social worker seeking confirmation from a school of a child's attendance that day
• The person to whom the duty of confidence is owed has 'expressly' authorised disclosure (orally or in writing) or 'implicitly' authorised it (a referrer of an allegation of abuse to Children's Social Care would expect the information to be shared on a 'need to know' basis)
• There is an overriding public interest in disclosure
• Disclosure is required by a court order or other legal obligation

The disclosure of information should not be an obstacle if an individual has particular concerns about the welfare of a child, the information is disclosed to another professional and the disclosure is justified under the common law duty of confidence.

The key factor in deciding whether or not to disclose confidential information is 'proportionality' i.e. is the proposed disclosure a proportionate response to the need to protect the child's welfare? The amount of confidential information disclosed and the number of people to whom it is disclosed should be no more than is necessary to meet the public interest in protecting the health and well-being of the child.

The approach to confidential information should be the same whether any proposed disclosure is internally within an organisation e.g. within a school or Children's Social Care or between agencies e.g. a teacher to a social worker.

Article 8 of the above Convention states that:

• Everyone has the right to respect for her/his 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, protection of health or morals or for the protection of rights and freedom of others

The right is not absolute and in certain situations Article 8 enables professionals to disclose information without consent - e.g. to:

• Safeguard a child
• Protect her/his health or morals
• Protect the rights and freedoms of others or
• Prevent disorder or crime

As with the common law described above, the principle of 'proportionality' applies to sharing confidential information i.e. when disclosing information without consent one must limit the extent of the disclosure to that which is absolutely necessary to achieve the aim of disclosure e.g. child protection.

The Data Protection Act 1998 (as amended) regulates the handling of information kept about an individual on a computer or in a manual filing system and requires of public authorities that any personal information is:

• Obtained and processed fairly and lawfully
• Processed for limited purposes and not in any manner incompatible with those purposes
• Accurate and relevant
• Held for no longer than necessary
• Kept secure
• Only disclosed if specific conditions set out in the Act are satisfied

The amendments to the Data Protection Act 1998 introduced by the Freedom of Information Act 2000 mean that any incidental personal information held in loose papers etc (as opposed to a structured filing system) is now also covered by subject access and accuracy obligations.

Legitimate conditions (in Schedule 2 of the Data Protection Act 1998) for sharing information include that:

• Consent of the person to whom the data relates has been obtained
• Disclosure is necessary to comply with a legal obligation
• It is necessary to protect the vital interests of the data subject
• It is necessary for the exercise of a statutory function or other public function exercised in the public interest eg a s17 assessment or s47 enquiries and
• It is necessary for the purposes of legitimate interests pursued by the person sharing the information (except where it is unwarranted by reason of prejudice to the rights and freedoms or legitimate interests of the data subject)

Many of the above conditions, especially the latter one offer a justification for sharing information (mindful of the proportionality principle).

If the information being shared is 'sensitive personal data' eg racial or ethnic origin, religious beliefs or political opinions, trade union membership, sexual life, criminal offences, one of the following additional conditions of Schedule 3 must be met:

• The subject has explicitly consented
• It is necessary to protect her/his vital interests or those of another person where the subject's consent cannot be given or is unreasonably withheld or cannot reasonably be expected to be obtained
• It is necessary to establish, exercise or defend legal rights
• It is necessary for the exercise of any statutory function and
• It is in the substantial public interest and necessary to prevent or detect an unlawful act and obtaining express consent would prejudice those purposes.

Defence of a child's 'legal rights' under the Human Rights Act 1998 or exercise of a statutory function in connection with a s17 assessment or s47 enquiries may offer justification for information sharing.

For more detailed information see Information Commissioner's Office website

For the NHS and councils with social services responsibilities, the Caldicott principles and processes provide a framework of quality standards for the management of confidentiality and access to personal information under the leadership of a Caldicott Guardian.

This includes 'Safe Haven' principles on the secure storage and transfer of confidential information.

These Standards apply to NHS organisations and Councils with Social Services Responsibilities in order to provide an effective framework to operationalise the Data Protection Act 1998 and underpin appropriate information sharing.

Health and Children's Social Care must ensure that their information sharing arrangements are compliant with their own local procedures based on the Caldicott Standard (see Health Service Circular/LAC circular HSC 2002/003/LAC (2002) 2 'Implementing the Caldicott Standard into Social Care').

Non Statutory Government Guidance

The latest government view of best professional practice is detailed in the Information Sharing booklet, available at the Department for Education, which includes:

• A practitioners' guide
• Further guidance on legal issues and
• A set of case exemplars

The above practitioners' guide Information Sharing: Practitioners' Guide (modified by the authors of these procedures at the italicised section of the 3rd bullet point) may be summarised as follows:

• 'You should explain to children / young people and families at the outset, openly and honestly, what and how information will, or could be shared and why, and seek their agreement -the exception to this is where to do so would put that child, young person or others at increased risk of Significant Harm or an adult at risk of serious harm, or if it would undermine the prevention, detection or prosecution of a serious crime including where seeking consent might lead to interference with any potential investigation
• You must always consider the safety and welfare of a child or young person when making decisions on whether to share information about them -where there is concern that the child may be suffering or is at risk of suffering significant harm, the child's safety and welfare must be the overriding consideration
• You should, where it is consistent with your view of the needs of the child, respect the wishes of children, young people or families who do not consent to share confidential information -you may still share information, if in your judgement on the facts of the case, there is sufficient need to override that lack of consent
• You should seek advice where you are in doubt, especially where your doubt relates to a concern about possible significant harm to a child or serious harm to others
• You should ensure the information you share is accurate and up-to-date, necessary for the purpose for which you are sharing it, shared only with those people who need to see it, and shared securely
• You should always record the reasons for your decision - whether it is to share information or not'

The above guidance indicates that in the following circumstances, sharing confidential information without consent will normally be justified in the public interest:

• 'There is evidence that the child is suffering or at risk of suffering significant harm or
• There is reasonable cause to believe that a child may be suffering or at risk of significant harm or
• To prevent significant harm arising to children / young people or serious harm to adults, including through the prevention, detection and prosecution of serious crime'

Overall Legal & Best Professional Practice

Thus, in general, the law does not prevent an individual sharing information with other practitioners if:

• Those likely to be affected, consent
• The public interest in safeguarding the child's welfare overrides the need to keep the information confidential
• Disclosure is required by court order or other legal obligation

'To fulfil their commitment to safeguard and promote the welfare of children, all organisations that provide services for, or work with, children must have: ... arrangements to work effectively with other organisations to safeguard and promote the welfare of children, including arrangements for sharing information.' (Working Together to Safeguard Children, 2010, paragraph 2.12)

Further information is available at the Department for Education.

This includes:

• Information Sharing: Guidance for practitioners and managers
• Information Sharing: Pocket guide
• Information Sharing: Case examples
• Information Sharing: Further guidance on legal issues
• Information Sharing: Posters
• Information Sharing: Endorsements and statements

Doctors

Updated General Medical Council (GMC) guidance - 'Confidentiality: Protecting and Providing Information'  (2004) emphasises the importance generally of obtaining a patient's consent to disclosure of personal information but makes it clear it may be released without consent to 3rd parties e.g. statutory agencies such as Children's Social Care and police, in exceptional circumstances if:

• A failure to disclose information may expose the patient, or others, to risk of death or serious harm

The GMC has confirmed that its guidance refers to information about:

• 3rd parties who are of direct relevance to child protection, e.g. adults who may pose a risk to a child
• Children who may be the subject of abuse

Nurses and Other Health Staff

The Nursing and Midwifery Council (NMC) has produced a code of professional conduct which contains the advice that disclosure of information may occur:

• With the informed consent of the patient or client
• Without the informed consent of the patient or client when the disclosure is required by law or by order of a court
• Without the informed consent of the patient or client when the disclosure is considered to be necessary in the public interest (public interest is defined to include child protection)

Police

The 6 categories of request for information which police CAIUs can lawfully respond to are those in which:

• A child protection referral is made in relation to a Section 47 Enquiry (e.g. during a Strategy Discussion)
• Information is requested as part of an inter-agency risk management meeting set up under the Sexual Offences Act 2003
• Children's Social Care is carrying out an Initial Assessment in order to inform a decision as to the justification for a Section 47 Enquiry
• Children's Social Care is carrying out a 'Child in Need' assessment under s.17 Children Act 1989 and written consent from the subject/s has been obtained or the need to safeguard a child overrides the duty of confidence
• The request relates to a child who is the subject of a Child Protection Plan
• Children's Social Care is faced with the immediate need to place a child with a family member or friend in an emergency and has obtained the necessary consents

'Management of Police Information' (MOPI)

Education Staff

Social Workers

The net result of legislation and professional guidance as summarised above is that professionals may share information for a child protection purpose without the consent of the subject:

• To protect the vital interests of the person
• Where seeking permission might place the child or another person at serious risk of Significant Harm
• Where such action might reasonably assist in the prevention or detection of serious crime

Routine 'Checks' - s.17 & 47 Enquiries

The permission of the subject (child or parent) must ordinarily be sought on those occasions when there is a need to gather further information via checks with other agencies, in order to:

• Progress an assessment of need (s.17 Children Act 1989)
• Decide whether to re-designate an assessment of need to a Section 47 Enquiry or
• Inform such a Section 47 Enquiry

Such checks may be completed without such permission if:

• Seeking permission is likely to increase risk to children concerned or other individuals e.g. by causing a substantial delay to the Section 47 Enquiry
• A request for permission has been refused, the reason for refusal has been considered and sufficient professional concern remains to justify disclosure
• Seeking permission is likely to impede a criminal investigation

Recording of Information Sought & Shared

Confidentiality of Exchanges of Information