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1.8 Information Sharing and Confidentiality Protocol

AMENDMENT

This chapter was revised in September 2009 to take account of Information Sharing: Guidance for practitioners and managers - published by the DCSF in October 2008. In January 2014, updated links were added to government guidance.


Contents

  1. Introduction
  2. Confidential Information and the Public Interest
  3. Consent to Information Sharing
  4. Where Information may be Shared Without Consent
  5. Disclosure of Information With Consent
  6. Disclosure of Information Without Consent
  7. Seven Golden Rules of Information Sharing
  8. Further Detailed Guidance


1. Introduction

1.1 Sharing information is vital for safeguarding and promoting the welfare of children to facilitate early intervention to ensure that children with additional needs receive the services they require and that children are protected from abuse and neglect.
1.2 Often, it is only when information from a number of sources has been shared and is then put together that it becomes clear that a child is at risk of suffering Significant Harm.
1.3 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.
1.4 Practitioners are often concerned about sharing information and uncertain about when they can do so lawfully. This chapter provides a summary of the general principles to be followed by all practitioners on this issue. The general principle is that consent should be obtained from children (depending on their age and understanding) and their families before information about them is shared with others. There are exceptions, however, and these are set out in Section 4, Where Information may be Shared Without Consent.


2. Confidential Information and the Public Interest

2.1 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.
2.2 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.
2.3 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 practitioner on the facts of each case. Therefore, where a practitioner has a concern about possible Significant Harm to a child, he or she should not regard refusal of consent as necessarily precluding the sharing of confidential information.
2.4 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. 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 practitioner 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 judgement.


3. Consent to Information Sharing

3.1 When any agency considers that it will need to share information in order to promote the wellbeing of a child under 16, consent should be obtained from a parent or other person with Parental Responsibility.
3.2 In relation to young people of 16 and over, they have the right to give and withhold consent independently of their parents views. 
3.3 Where a child is under 16, he or she may wish to give or withhold consent independently of and in contradiction to their parents views. This wish should be upheld where the child is considered to be of sufficient understanding to give informed consent. It is for the practitioner working with the child to make this judgement as to whether the child can appreciate what is being proposed, having regard to the child’s age and level of understanding. The practitioner should also seek advice from his or her line manager or other relevant person in the organisation or agency. Further guidance can be found at Information Sharing: Guidance for practitioners and managers.
3.4 Therefore, practitioners should explain to children and families when they first receive services, openly and honestly, what and how information will, or could be shared and why, and seek their consent about with whom and when information can be shared.
3.5 Consent must also specify with whom information will be shared. It cannot be assumed that a person is willing for information to be shared simply because they have not stated to the contrary.
3.6 This must be informed consent and practitioners must check that children, young people and parents have understood their explanation.
3.7 The person giving consent may decide to put restrictions on with whom personal information may be shared and if so, this should be recorded on the Consent Form.
3.8 Their consent should be obtained in writing and exemplar consent forms are provided in the Common Assessment Framework procedures. 
3.9 The Consent Form should be securely retained on the individuals file/record and relevant information recorded on any electronic systems to ensure that other members of staff are made aware of the consent and any limitations. Copies of completed and signed Consent Forms should also be left with the individuals concerned.
3.10 Consent must be obtained every time an episode of working with a family begins. It should also be regarded as good practice to seek “fresh” consent where there are significant changes in the circumstances of the person or the work being undertaken.


4. Where Information may be Shared Without Consent

4.1 In some circumstances, it is not appropriate to seek consent before sharing information with others and/or information can be shared where consent has been refused. This may be the case where making a referral to Children’s Social Work Services under the Referrals Procedure.
4.2 Information cannot be shared without the consent of the parent, young person of 16 or over or a child unless one or more of the following circumstances apply:
  • Where failure to share information may result in harm to the child or young person;
  • Where failure to share information may result in serious harm to an adult;
  • Where failure to share information may result in a crime being committed;
  • Where failure to share information may result in a crime not being detected, including where seeking consent might lead to interference with any potential investigation;
  • Where the young person is deemed to have insufficient understanding to withhold consent and therefore cannot override parental consent;
  • Where the young person is deemed to have sufficient understanding to override the parental refusal to give consent;
  • Where there is a statutory duty or Court Order requiring information to be shared.
4.3 Practitioners must always consider the safety and welfare of a child as the overriding consideration when making decisions on whether to share information about the child without consent. 
4.4 Practitioners should seek advice and consultation when in doubt. Advice must be sought and consultation must take place within a time frame which is not detrimental to the child’s interests.
4.5 Practitioners must 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.


5. Disclosure of Information With Consent

5.1 Information should only be shared on a “need to know” basis, i.e. necessary for the purpose for which they are sharing it and shared only with those people who need it.
5.2 Practitioners should ensure that the information they share is accurate, factual and up-to-date; where opinion is given, this should be made clear to the recipient.
5.3 Practitioners should always record the disclosure to include:
  • When the disclosure was made;
  • Who made the disclosure;
  • Who the disclosure was made to;
  • How the disclosure was made;
  • What was disclosed.


6. Disclosure of Information Without Consent

6.1 Disclosure of information without consent must be justifiable as set out in Section 4, Where Information may be Shared Without Consent.
6.2 Where information is disclosed without consent, the decision and the reasons for it must be recorded, as well as the matters listed in paragraph 4.2.
6.3 In addition, the person making the disclosure must advise the recipient that consent has been refused or has not been sought.
6.4 The recipient of information that has been disclosed without consent should record:
  • The details of the information received;
  • Who provided it;
  • That it was provided without consent and the reasons given (if known);
  • Any restrictions placed on the information that has been given, for example “Not to be disclosed to service user”.


7. Seven Golden Rules of Information Sharing

These are taken from 'Information Sharing: Guidance for practitioners and managers (2008)':

  1. Remember that the Data Protection Act is not a barrier to sharing information but provides a framework to ensure that personal information about living persons is shared appropriately;
  2. Be open and honest with the person (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;
  3. Seek advice if you are in any doubt, without disclosing the identity of the person where possible;
  4. Share with 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, that lack of consent can be overridden in the public interest. You will need to base your judgment on the facts of the case;
  5. Consider safety and well-being: Base your information sharing decisions on considerations of the safety and wellbeing of the person and others who may be affected by their actions;
  6. 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;
  7. 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.


8. Further Detailed Guidance

See also General Protocol for Inter Agency Information Sharing within Solihull, which is available on the Solihull MBC Intranet.

For further detailed guidance, see the 'Information Sharing: Guidance for practitioners and managers (2008)'.

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