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1.7 Protocol on Sharing Information in Order to Safeguard and Promote the Welfare of Children

RELEVANT GUIDANCE

DfE, Information Sharing:  Advice for practitioners providing safeguarding services to children, young people, parents and carers (2015)

RELEVANT CHAPTER

Professional Resolution and Escalation Protocol

AMENDMENT

This chapter was updated in September 2015 add a link to DfE, Information Sharing:  Advice for practitioners providing safeguarding services to children, young people, parents and carers (2015). Quotes from Working Together 2015 and DfE, Information Sharing (2015) have been added in Section 1, Purpose and Principles to emphasise the importance of sharing information in respect to safeguarding a child.


Contents

  1. Purpose and Principles
  2. The Legal Framework
  3. Professional Guidance
  4. Guidance


1. Purpose and Principles

“Effective sharing of information between professionals and local agencies is essential for effective identification, assessment and service provision.

Early sharing of information is the key to providing effective early help where there are emerging problems. At the other end of the continuum, sharing information can be essential to put in place effective child protection services. Serious Case Reviews (SCRs) have shown how poor information - sharing has contributed to the deaths or serious injuries of children.

Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children.” (Working Together 2015)

“Practitioners should use their judgement when making decisions on what information to share and when and should follow their organisation procedures or consult with their manager if in doubt. The most important consideration is whether sharing information is likely to safeguard and protect a child”. (Information sharing March 2015)

The purpose of this protocol is to clarify the principles behind, and the arrangements for sharing sensitive personal information between LSCB agencies in order to safeguard and promote the welfare of children. The protocol refers to a number of legal enactment's but is not meant to be a definitive guide to the law in what is a complex and evolving legal framework. In individual cases, professionals and/or agencies may wish to seek legal advice. Examples given are meant to be illustrative rather than exclusive.

A basic principle of the Data Protection Act 1998 is that there has to be a 'legitimate basis' for disclosing sensitive personal data. 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 not be able to care for a child adequately or safely without help;
  • About those who may pose a risk of harm to a child.

In broad terms, therefore, sharing sensitive personal information can be legitimate because it is only when information from a number of sources has been shared and put together that it becomes clear that a child is at risk of or is suffering harm. It is worth bearing in mind that enquiries following child deaths and other situations where practice has been called into question, have repeatedly identified failure to share information as a contributory factor.

All LSCB agencies have subscribed to the over-riding principle that the needs and rights of children come first, and that where those needs and rights conflict with those of adults, any conflict must be resolved in the child's favour. At the same time, professionals and agencies will be concerned to balance their duties to protect children from harm with their general duty towards their patient or service user. It is hoped that this protocol will help professionals and agencies in the task of deciding in individual cases where the proper balance lies.

LSCB strongly supports the principle of working in partnership with children, parents/carers and other family members. This means among other things seeking the consent of the child and family wherever it is possible and consistent with the child's best interests. This should include wherever possible seeking clear, explicit and informed consent from the individual(s) concerned for information about them to be shared with specified other individuals or agencies. Where such consent can be freely obtained, this is clearly the best way of resolving any potential conflict of interest. Agencies are encouraged to develop procedures for obtaining and recording such consent. However, it is recognised that frequently such consent cannot be obtained, either because it is refused, the individual concerned cannot be contacted within a reasonable time to give consent, or in exceptional cases, even seeking the consent would place a child at greater risk of harm. This protocol relates primarily to the sharing of information where such agreement is not available, although the data protection principles relate to all situations.

LSCB supports the 6 key points of information sharing outlined in the Information sharing: Practitioners' guide Integrated working to improve outcomes for children and young people which can be found on the Department for Education website:

  • 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 suffering 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 possible, 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 judgment 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 that 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.

See also: DfE, Information Sharing:  Advice for practitioners providing safeguarding services to children, young people, parents and carers (2015).


2. The Legal Framework

Referring to the Data Protection Act 1998 and the Human Rights Act 2000, a barrister practising in Human Rights law was quoted in The Times on 15 December 2000 as saying "It is a question of balance and proportionality. The Acts require a new way of thinking. It will take a while for public bodies to get their heads around it. At the moment people are panicking unduly"

The two Acts together have significant legislative implications for the sharing of information between the partner agencies in child protection.

The Data Protection Act 1998

Beyond the principle of a 'legitimate basis' for disclosing sensitive personal information, discussed in Section 1, Purpose and Principles, the Act requires that personal information:

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

The Data Protection Registrar recommends that any information sharing agreement should address the following issues.

Will it be necessary to share personal information to fulfil the purpose of the agreement?

If depersonalised information can be used, there are no data protection implications. However, given the purpose of this protocol as set out in Section 1, Introduction, it is clear that only personal information, which is likely to be of a sensitive nature, will fulfil the requirements.

Do the parties to the arrangement have the power to disclose personal information for that purpose?

This is a particular issue for public sector bodies or agencies whose powers and responsibilities are defined by statute or administrative law. If a public body acts ultra vires or outside its powers, then it may break the lawfulness requirement set out in The Data Protection Act 1998 itself states that personal information may be disclosed for the purposes of the prevention or detection of crime, or the apprehension or prosecution of offenders, in cases where failure to disclose would be likely to prejudice those objectives. This may be relevant in serious cases of abuse or likelihood of suffering significant harm.

How much personal information will need to be shared in order to achieve the objectives of the arrangement?

Some agencies may hold a lot of personal information on individuals but not all of this may be relevant to the purpose of safeguarding and promoting the welfare of children. It would not be right to disclose irrelevant information.

What is relevant is a matter of judgement in individual cases, but research-based evidence should be taken into account. For example, much of a parent's medical history may well be irrelevant in this context, but research shows that parental psychiatric problems and/or a history of chronic or chaotic substance misuse can be highly relevant, and even crucial, to a child's safety and well-being. The amount of information shared should be proportional to the circumstances of the case.

The Human Rights Act 2000

The Human Rights Act has the effect of enacting in the law in England and Wales the provisions of the European Convention on Human Rights.

It has been suggested that, regardless of the restrictions on the sharing of information within the Data Protection Act, Article 8 of the Convention may prevent it altogether, as it states that 'everyone has the right to respect for his private and family life, his home and his correspondence'. However, it should be recognised that Article 8 does not create an absolute right to privacy - the right is to 'respect' for private and family life. Moreover, the Article goes on to describe the circumstances in which a public authority can interfere with the exercise of this right. These circumstances are:

'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 the rights and freedoms of others.'

It seems clear that a number of these circumstances are highly relevant in a child protection context.

Furthermore, Article 3 which states that 'No one shall be subjected to torture or to inhuman or degrading treatment' has paramountcy over Article 8. This has already been clarified within a leading judgement (Re F, 2000) which states 'It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well intentioned, to create or perpetuate situations which jeopardise their welfare'.

The Children Act 1989

There are a number of provisions within the Children Act which are relevant to information sharing, and specifically to the legal power to disclose personal information.

It is well known that children's social care have a duty under Section 47 of the Act to 'make enquiries' where there is 'reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm'. The statutory guidance in 'Working Together' makes it clear that these enquiries should be carried out in a way which is consistent with 'The Framework for the Assessment of Children in Need and Their Families', which specifically requires relevant information to be sought from other agencies.

It is less well known that Section 47 also places a duty on the other agencies represented within LSCB 'to assist them (the local authority) with those enquiries (in particular by providing relevant information and advice) if called upon by the authority to do so'. Section 47 therefore provides both a right and a duty firstly on social care to seek relevant information and secondly on other agencies to provide such information.

Increasingly, as recommended by 'Working Together', it is the practice to carry out a social work assessment using the Assessment Framework in order to decide, among other things, whether further enquiries are necessary under Section 47. It should be remembered that such assessments are equally a statutory duty of social care, under Section 17 of the Children Act. Section 27 of the Act requires other agencies to help social care carry out its duties under Section 17, as long as to do so is compatible with their own statutory duties and that by doing so they would not unduly prejudice the discharge of their own functions. Consequently social care may seek information about a child in need in relation to any assessment, or ongoing casework, and not just in relation to child protection enquiries. For their part, other agencies may have a duty to provide the information unless they can show how this is not compatible with their own statutory duties.

CAFCASS: Children & Family Reporters (Family Court Welfare Officers)

Children & Family Reporters and local authority social workers working under Sect. 7 of the Children Act 1989, request information about people involved in private law proceedings. The release of this information is authorised under paragraph 23 of the Appendix to LAC (88) 17. Conversely, workers conducting investigations in connection with child protection will often seek information from Children & Family Reporters. Such information will have been gathered in the context of private law enquiries as above, and its release will always require the permission of the court. If social care propose to release information from a file containing comments made by a Children & Family Reporter either verbally or in writing, then the Children & Family Reporter, or local CAFCASS manager, must be consulted first.

The Crime and Disorder Act 1998

Section 115 of the Crime and Disorder Act 1998 may provide agencies and professionals with the power to disclose personal information referred to in The Data Protection Act 1998. It provides that any person can lawfully disclose information, where necessary or expedient for the purpose of any provision of the Act, to a Chief Officer of Police, a Police Authority, Local Authorities, Probation Provider or Health Authority (or to a person acting on behalf of any of these bodies), even if they do not otherwise have this power. The 'purposes' of the Act referred to are wide and include a range of measures such as local crime audits, youth offending teams, Anti-Social Behaviour Injunctions, sex offender orders and local child curfew schemes.

Criminal Justice Act 2003 (inserted by s. 140 Criminal Justice and Immigration Act 2008)

Child Sex Offender Disclosure Scheme

The Child Sex Offender Review (CSOR) Disclosure Scheme (ss 327A and 327B) 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.

Crime and Security Act 2010

The Domestic Violence Disclosure Scheme

The Domestic Violence Disclosure Scheme (DVDS) (ss 24 – 33) 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. 


3. Professional Guidance

Medical

The General Medical Council (GMC) has produced guidance entitled Confidentiality (1995). It emphasises the importance in most circumstances of obtaining a patient's consent to the disclosure of personal information, but makes clear that information may be released to third parties - if necessary without consent - in certain circumstances. Those circumstances include the following.

Disclosure in the Patient's Medical Interests

"Problems may arise if you consider that a patient is incapable of giving consent to treatment because of immaturity, illness, or mental incapacity, and you have tried unsuccessfully to persuade the patient to allow an appropriate person to be involved in the consultation. If you are convinced that it is essential in the patient's medical interests, you may disclose relevant information to an appropriate person or authority. You must tell the patient before disclosing any information. You should remember that the judgement of whether patients are capable of giving or withholding consent to treatment or disclosure must be based on an assessment of their ability to appreciate what the treatment or advice being sought may involve, and not solely on their age;" (para 10).

"If you believe a patient to be a victim of neglect or physical or sexual abuse, and unable to give or withhold consent to disclosure, you should usually give this information to an appropriate responsible person or statutory agency, in order to prevent further harm to the patient. In these and similar circumstances, you may release information without the patient's consent, but only if you consider that the patient is unable to give consent, and that the disclosure is in the patient's best medical interests." (para 11).

Disclosure in the Interests of Others

"Disclosure may be necessary in the public interest where a failure to disclose information may expose the patient, or others, to risk of death or serious harm. In such circumstances you should disclose the information promptly to an appropriate person or authority." (para 18).

The GMC has confirmed that its guidance on the disclosure of information which may assist in the prevention or detection of abuse, applies both to information about third parties (e.g. adults who may pose a risk of harm to a child), and about children who may be the subject of abuse.

Nursing

The Nursing and Midwifery Council has produced Guidelines for professional practice (1996), which contains the following advice on providing information.

"Disclosure of information occurs":

  • With the consent of the patient or client;
  • Without the consent of the patient or client when the disclosure is required by law or by order of a court; and
  • Without the consent of the patient or client when the disclosure is considered to be necessary in the public interest.

The public interest means the interests of an individual, or groups of individuals or of society as a whole and would, for example, cover matters such as serious crime, child abuse, drug trafficking or other activities which place others at serious risk (paras 55-56).


4. Guidance

Sharing information is essential to enable early intervention to help children, young people and families who need additional services to achieve positive outcomes, thus reducing inequalities between disadvantaged children and others. These services could include additional help with learning, specialist health services, help and support to move away from criminal or anti-social behaviour, or support for parents in developing parenting skills. As Lincolnshire moves towards integrated children's services, professional and confident sharing of information is becoming more important to realising the potential of these new arrangements to deliver benefits for children, young people and families.

Information sharing is also vital to safeguarding and promoting the welfare of children and young people. A key factor in many serious case reviews has been a failure to record information, to share it, to understand the significance of the information shared, and to take appropriate action in relation to known or suspected abuse or neglect.

We know that practitioners recognise the importance of information sharing and that there is much good practice. But practitioners also tell us that in some situations they feel constrained from sharing information by their uncertainty about when they can do so lawfully. This guidance aims to provide clarity on that issue. It is important that practitioners:

  • Are supported by their employers in working through these issues;
  • Understand what information is and is not confidential, and the need in some circumstances to make a judgment about whether confidential information can be shared, in the public interest, without consent;
  • Understand and apply good practice in sharing information at an early stage as part of preventative work;
  • Are clear that information can normally be shared where you judge that a child or young person is at risk of suffering significant harm or that an adult is at risk of serious harm.

All agencies should have:

  • A systematic approach within their agency to explaining to children, young people and families when they first access the service how and why information may be shared, which will build the confidence of all involved;
  • Clear systems, standards and protocols for sharing information. These may derive from their agency's policies, any local protocols in place, or from their professional code of conduct;
  • Access to training where they can discuss issues which concern them and explore case examples with other practitioners;
  • A source of advice and support on information sharing issues.
  • The statutory guidance on section 11 of the Children Act 2004 states that in order to safeguard and promote children's welfare, the agencies covered by section 11 should make arrangements to fulfil these duties.

In deciding whether there is a need to share information you need to consider your

legal obligations including:

  1. Whether the information is confidential; and
  2. If it is confidential, whether there is a public interest sufficient to justify sharing.

Not all information is confidential. Confidential information is information of some sensitivity, which is not already lawfully in the public domain or readily available from another public source, and which has been shared in a relationship where the person giving the information understood that it would not be shared with others. For example, a teacher may know that one of her pupils has a parent who misuses drugs. That is information of some sensitivity, but may not be confidential if it is widely known or it has been shared with the teacher in circumstances where the person understood it would be shared with others. If however it is shared with the teacher by the pupil in a counselling session, for example, it would be confidential.

Confidence is only breached where the sharing of confidential information is not authorised by the person who provided it or to whom it relates. If the information was provided on the understanding that it would be shared with a limited range of people or for limited purposes, then sharing in accordance with that understanding will not be a breach of confidence. Similarly, there will not be a breach of confidence where there is explicit consent to the sharing.

Even where sharing of confidential information is not authorised, you may lawfully share it if this can be justified in the public interest. Seeking consent should be the first option, if appropriate. Where consent cannot be obtained to the sharing of the information or is refused, or where seeking it is likely to undermine the prevention, detection or prosecution of a crime, the question of whether there is a sufficient public interest must be judged by the practitioner on the facts of each case. Therefore, where you have a concern about a child or young person, you should not regard refusal of consent as necessarily precluding the sharing of confidential information.

A public interest can arise in a wide range of circumstances, for example, to protect children or other people from harm, to promote the welfare of children or to prevent crime and disorder. There are also public interests, which in some circumstances may weigh against sharing, including the public interest in maintaining public confidence in the confidentiality of certain services. The key factor in deciding whether or not to share confidential information is proportionality, i.e. whether the proposed sharing is a proportionate response to the need to protect the public interest in question. In making the decision you must weigh up what might happen if the information is shared against what might happen if it is not, and make a decision based on a reasonable judgment.

It is not possible to give guidance to cover every circumstance in which sharing of confidential information without consent will be justified. Practitioners must make a judgment on the facts of the individual case. 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.

It is possible however to identify some circumstances in which sharing confidential information without consent will normally be justified in the public interest. These are:

  • When there is evidence that the child is suffering or is at risk of suffering significant harm; or
  • Where 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 and young people or serious harm to adults, including through the prevention, detection and prosecution of serious crime.
  • For the purposes of this guidance, serious crime means any crime which causes or is likely to cause significant harm to a child or young person or serious harm to an adult.

There is an increasing emphasis on integrated working across children's services so that support for children, young people and families is provided in response to their needs. The aim is to deliver more effective intervention at an earlier stage to prevent problems escalating and to increase the chances of a child or young person achieving positive outcomes. In some areas there is increased use of multi-agency services, for example in children's centres to support child health development; or through youth inclusion and support panels (YISPs) to support young people to help them move away from involvement in crime and disorder.

Whether the integrated working is across existing services or through specific multi-agency structures, success depends upon effective partnership working between universal services (such as education and primary health care) and targeted and specialist services for those children, young people and families at risk of poor outcomes. Preventative services working in this way will be more effective in identifying concerns about suffering significant harm, for example as a result of abuse or neglect. However, in most situations children, young people and family members will require additional services in relation to education, health, behaviour, parenting, or family support, rather than intervention to protect the child or young person from harm or to prevent or detect serious crime.

Effective preventative services of this type will usually require active processes for identifying children and young people at risk of poor outcomes, and passing information to those delivering targeted support. Practitioners sometimes express concern about how this can be done lawfully.

Seeking consent should be the first option. Practitioners in universal, targeted and specialist services, including multi-agency services, should proactively inform children, young people and families, when they first engage with the service, about their service's policy on how information will be shared, and seek their consent. The approach to sharing information should be explained openly and honestly. Where this is done, young people and families will be aware how their information may be shared, and experience shows that most will give consent.

Information which is not confidential may generally be shared where that is necessary for the legitimate purposes of preventative work. Where information is confidential, however, and consent is refused, that should be respected, unless in the practitioner's professional judgment on the facts of the case, the public interest justifies the sharing of information.

It is critical that all practitioners working with children and young people are in no doubt that where they have reasonable cause to suspect that a child or young person may be suffering or may be at risk of suffering significant harm, they should always consider referring their concerns to children's social care. While, in general, you should seek to discuss any concerns with the family and, where possible, seek their agreement to making referrals to children's social care, this should only be done where such discussion and agreement-seeking will not place a child at increased risk of suffering significant harm or lead to interference with any potential investigation. The child's interests must be the overriding consideration in making any such decisions.

In some situations there may be a concern that a child or young person may be suffering or at risk of significant harm or of causing serious harm to others, but you may be unsure whether what has given rise to your concern constitutes 'a reasonable cause to believe'. In these situations, the concern must not be ignored. You should always talk to someone to help you decide what to do - a lead person on child protection, a Caldicott guardian, or a discussion with a trusted colleague or another practitioner who knows the child. The decision, to share information or not, should be recorded.

Agencies requesting information from others should clarify the purpose of seeking the information, and what is the legal basis of the requests. For example, social workers seeking information should clarify whether they are acting under Section 17 or Section 47 of the Children Act 1989, or under some other statutory duty.

When considering sharing information, professionals will need to consider the issues addressed above concerning:

  • The power to disclose;
  • The duty to disclose;
  • Issues of consent.

The interests of accuracy and of recording the reasons for sharing information will normally be best served by putting the information in writing. It will also be helpful to indicate whether the party sharing the information feels it should not be disclosed to the service user, or parent, as most records are now accessible to service users unless exempted for a specific reason, such as the likelihood of causing serious harm. In urgent situations, information will need to be shared verbally, but should then if possible be followed up and confirmed in writing.

Agencies should have clear and public policies covering the storage and retention of information, and access by service users and others acting on their behalf to such records. Particular attention must be paid to the security of information which has been obtained from other agencies or professionals.

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