1.4 Information Sharing and Confidentiality
‘Information sharing is vital to safeguarding and promoting the welfare of children and young people. A key factor identified in many serious case reviews (SCRs) has been a failure by practitioners to record information, to share it, to understand its significance and then take appropriate action.’
(Information sharing - Advice for Practitioners Providing Safeguarding Services to Children, Young People, Parents and Carers (March 2015))
SCOPE OF THIS CHAPTER
This chapter provides broad principles for information sharing. However, in certain situations, for example where there are criminal proceedings, or the MAPPA process is involved, advice may be required about the individual circumstances and the balance to be struck between the public interest in sharing the information and confidentiality.
AMENDMENTThis chapter was updated throughout in November 2015 in line with revised statutory guidance Information Sharing: Advice for Practitioners Providing Safeguarding Services to Children, Young People, Parents and Carers (March 2015).
- Key Points on Information Sharing
- Confidentiality, Consent and the Public Interest
- Seven Golden Rules for Information Sharing
Sharing information is vital for early intervention to ensure that children with additional needs receive the services they require. It is also essential to protect children from suffering Significant Harm.
Professionals are sometimes uncertain about when they can share information lawfully. It is important therefore that they:
- Understand and apply good practice in sharing information at an early stage as part of preventative work;
- Are clear that information can be shared where they judge that a child is at risk of Significant Harm; and
- 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.
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.
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.
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 that here.
It is important that each agency involved in providing services to children and families has a systematic approach to explain to children and families when they first access services, openly and honestly, what and how information will, or could be shared and why, and seek their agreement.The general principle is that information will only be shared with the consent of the subject of the information.
In some circumstances, however, it will not be appropriate to seek consent before sharing information with others and/or information can be shared where consent has been refused.
The exception to this is where to do so would:
- Place the child or others at increased risk of Significant Harm; or
- Place an adult at risk of serious harm; or
- Undermine the prevention, detection or prosecution of a serious crime (i.e. any crime which causes or is likely to cause significant harm to a child or serious harm to an adult) including where seeking consent might lead to interference with any potential investigation.
Professionals must also share information when they are in situations where there is a statutory duty or Court Order requiring the information to be shared. In such situations, information should be shared even if consent has not been given. However, wherever possible, the individual concerned should be informed about the information to be shared, the reasons and to whom it will be disclosed.
Professionals must always consider the safety and welfare of a child when making decisions on whether to share information about the child. 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.
Professionals should, where possible, respect the wishes of children or families who do not consent to share confidential information. However, they may still share information if in their judgement there is sufficient need to override that lack of consent.
Professionals should seek advice where they are in doubt, especially where the doubt relates to as concern about possible significant harm to a child or serious harm to others.
Professionals should ensure that the information they share is accurate and up-to-date, necessary for the purpose for which they are sharing it, shared only with those people who need to see it, and shared securely.
Professionals should always record the reasons for their decision – whether it is to share information or not.
You do not necessarily need the consent of the information subject to share their personal information.
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?
In deciding whether there is a need to share information you need to consider your legal obligations including:
- Whether the information is confidential; and
- If it is confidential, whether there is a public interest sufficient to justify sharing the information.
Not all information is confidential. Confidential information is information of some sensitivity, which is not public knowledge, 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 his/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, it may lawfully be shared 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 professional on the facts of each case. Therefore, where a professional has a concern about a child, he or she 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 response in proportion to the need to protect the public interest in question. In making the decision, the professional 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. It is possible however to identify some circumstances in which sharing confidential information without consent will normally be justified in the public interest.
- 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 or serious harm to adults, including through the prevention, detection and prosecution of serious crime, i.e. any crime which causes or is likely to cause significant harm to a child or serious harm to an adult.
- 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;
- 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;
- 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;
- 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;
- 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;
- 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);
- 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.