Sharing and assessment
Importance of information sharing
Information sharing is important because:
- professionals have a duty to share information where doing so might protect a child or young person from risk of significant harm
- failing to share information, even regarding a low level need, may have serious consequences for the welfare of a child, if not considered together with the concerns of others
Practitioners in different agencies should therefore be encouraged to work together and share information for the safety and wellbeing of children.
It is also important to understand issues and legislation concerning the control and confidentiality of information.
Practitioners need to be confident about what they can and should do under the law.
This includes:
- how to share information
- circumstances when information can be shared even though consent has not been obtained or when seeking consent would place the child, young person or someone else at risk or harm
The exercise of professional judgement and the ability to access professional advice are critical to the process of safeguarding the welfare of children and young people.
When information sharing is permitted
In general, the law says that professionals can share information with other practitioners if:
- those likely to be affected consent
- the public interest in safeguarding a child’s welfare overrides the need to keep the information confidential
- disclosure is required as part of a formal child protection investigation (S47, Children Act 1989) or other legal obligation
Consent to sharing information
A child or young person under the age of 18 may validly consent to the sharing of information about them, so long as they have sufficient understanding to do so.
Where a child does not have the capacity to consent, the agreement of the person with parental responsibility should be sought, where this does not pose additional risk to the child.
In some situations, there may already be express consent to the exchange of information, verbally or in writing (such as the register of disabled children), or implied consent.
Public interest in safeguarding welfare
In general, it is the duty of professionals, whether they are involved with adults or children, to place the needs of the child first.
Although each case will vary, where there is an honest belief in the necessity to share information, without the consent of those affected, in order to safeguard the welfare of a child or young person information sharing is justified if the proposed disclosure is proportionate to the necessity to protect the wellbeing of the child.
Article 8 of the European Convention on Human Rights Act 1998 provides that:
- everyone has the right to respect for his or her private and family life, home and correspondence
- there shall be no interference by a public authority with exercise of this right except such as in accordance with the law and is necessary in a democratic society, public safety, or in the economic wellbeing of the country, for the prevention of disorder or crime, protection of health or morals or for the protection of the rights and freedom of others
The right is not absolute.
Article 3 of the European Convention on Human Rights 1998 provides that no one shall be subject to torture or to inhuman or degrading treatment or punishment. As a result, there are situations in which professionals may legitimately exchange information without the consent of those affected.
These include:
- to safeguard a child
- to protect his or her health or morals
- to protect the rights and freedoms of others or
- to prevent disorder or crime
Disclosure without consent is limited to that which is necessary to achieve the aim of the disclosure.
Lawful authority / statutory function
Ordinarily permission is sought in order to undertake statutory enquiries under sections 17 and 47 of the Children Act 1989, but may be dispensed with if:
- seeking permission is likely to increase the risk to the child or other individuals (e.g. by causing delay)
- a request for permission has been refused and sufficient professional concern remains to justify disclosure
- seeking permission is likely to impede a criminal investigation
The Data Protection Act 1998 regulates the handling of personal information and requires that such information be:
- obtained and processed fairly and lawfully
- processed for limited purposes
- accurate and relevant
- held for no longer than necessary
- kept secure
- only disclosed in accordance with the provisions of the Act
Schedule 2 of the Act provides conditions for the disclosure of personal information. These are:
- the person to whom the information relates has given consent
- disclosure is necessary to comply with a legal obligation
- disclosure is necessary to safeguard the vital interests of the person to whom the information relates
- it is necessary for the exercise of a statutory function or other public function exercised in the public interest (e.g. child protection)
- it is necessary for the purposes of the legitimate interest of the person sharing the information (except where disclosure would be an unwarranted prejudice to the rights and freedoms or legitimate interests of the person to whom the information relates)
Schedule 3 provides additional conditions, which must be met, if 'sensitive personal data' is to be shared - for example, ethnic or racial origin, religious beliefs, political opinions.
These are:
- the person to whom the information relates has been given consent
- disclosure is necessary to protect his or her vital interest 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
- disclosure is necessary to establish, exercise or defend legal rights
- it is necessary for the exercise of any statutory function
- 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 the legal rights of a child or young person under the Human Rights Act 1998 or within the context of functions exercised under the Children Act 1989 may well fall within this schedule.
Although consent is not necessary for the exchange of information between statutory agencies about a vulnerable child or young person, best practice requires that parents/carers, children and young people are told clearly about the way in which information may be used.
Partners will explain that basic client information may be shared between agencies and that personal or sensitive information may be shared where there are concerns and this is believed to be in the best interest of child or young person.
Practitioners will explain their policy regarding confidentiality sharing to parents/carers, children and young people in a clear, comprehensive and jargon-free manner.
Practitioners need to understand the general principles of sharing information identifiable to a child or young person.
You will need to ensure your records demonstrate:
- the purpose for using confidential information
- the need to share only that information required to assess vulnerability and deliver services
- the need to restrict access on a need to know basis
- a clear understanding of their responsibilities