CHAPTER 4: Information Sharing & Confidentiality

Please adhere to the following Pan-Berkshire process, when sharing information:

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

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 website, 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, p. 43-44)

Further information is available at the Department for Education website.

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 & 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' - SECTION 17 & SECTION 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