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Contents

1. Is the Information Confidential?
2. Maintaining Confidentiality
3. Disclosure by Consent
4. Disclosure in the Absence of Consent
5. Information Sharing Checklist

1. Is the Information Confidential?

Some kinds of information, such as medical records and communications between doctor and patient, are generally recognised as being subject to a duty of confidence. Other information may not be, particularly if it is readily available from other sources or if the person to whom it relates would not have an interest in keeping it secret. For example, a Social Worker who was concerned about a child or young person's whereabouts might telephone the school to establish whether the child or young person was in school that day.

2. Maintaining Confidentiality

As a general rule you should treat all personal information you acquire or hold in the course of working with children and families as confidential and take particular care with sensitive information. Confidentiality should not be interpreted as secrecy; it is concerned with the confidence in the relationship and the handling of information.

3. Disclosure by Consent

Consent to share information can be explicit (that is orally or in writing) or can be inferred from the circumstances in which information was given (implied consent), but must always be 'informed'. The person giving consent needs to understand who will see their information and the purpose to which it will be put.

Whose consent is required?

The duty of confidence is owed to the person who has provided the information on the understanding it is to be kept confidential and, in the case of medical or other records, the person to whom the information relates.

What if the duty is to a child or young person?

A duty of confidence may be owed to a child or young person in their own right. A young person aged 16 or over, or a child under 16 who has the capacity to understand and make their own decisions, may give (or refuse) consent to a disclosure. Otherwise a person with Parental responsibility should consent on their behalf. Every effort should be made to include the Parents/Carers with young people under 16 unless this would increase the risk to a child or young person.

Has consent been given?

You do not need explicit consent if you have reasonable grounds to believe that the person to whom the duty is owed understands and accepts that the information will be disclosed. For example, a person who refers an allegation of abuse to a Social Worker would expect that information to be shared on a 'need to know' basis with those responsible for following up the allegation. Anyone who receives information, knowing it is confidential, is also subject to a duty of confidence. Whenever you give or receive information in confidence you should ensure there is a clear understanding as to how it may be used or shared.

Should you seek consent?

If you are in doubt as to whether a disclosure is authorised it is best to obtain explicit consent. But you should not do so if you think this would be contrary to a child or young person's welfare. For example, if the information is needed urgently, the delay in obtaining consent may not be justified. Seeking consent may prejudice a police investigation or may increase the risk of harm to the child or young person.

In situations where family members are in conflict careful consideration will need to be given to whose consent should be sought. It will be important to consider:

• For children who are not capable of giving consent themselves, the consent of one person with Parental responsibility is sufficient;
• Are the Parents separated?  The consent of the resident Parent would usually be sought (if they have Parental responsibility), unless there is a risk to the child or young person;
• What is in the best interests of the child or young person?
• Can the child or young person give consent?
• Are there risks to the child or young person if one Parent's consent is overridden?

If you think a person is not capable of giving consent due to a mental impairmentyou should consider sharing information in the best interests of the person concerned without their consent. You will need to make reasonable efforts to establish what their best interests are, by taking into account the views of friends and family about what the person might have wanted. If the person concerned is over 18 years of age then no-one else can give consent on that person's behalf unless they have enduring 'power of attorney'. If the person is less than 18 years old, the person with Parental responsibility for them should be approached to give consent on their behalf.

Consent cannot be inferred from any non-response to a communication requesting it or from any failure to object to such disclosure. It is important that any request is worded in language that is easily understood by the child or young person and their Parents/guardian, and that no misleading statements or coercion takes place.

Consent can also be withdrawn at any time during the process.

Does consent once given continue to be valid throughout the course of the agency involvement?

If you use a consent form ensure that there is a section to specify the timescales for which the information will be held and when consent will be reviewed. Renewed consent should always be recorded.

Consent should be sought again if there is a significant change in the child or young person's circumstances. But the lack of renewed consent should not automatically be used as a reason for not continuing to share important information.

What if consent is refused?

You will need to decide whether your concerns about the child or young person's circumstances justify the disclosure, taking into account what is being disclosed, for what purposes and to whom.

4. Disclosure in the Absence of Consent

The law recognises that disclosure of personal or sensitive information without consent or a Court order can be justified in the public interest to prevent harm to others. However, as a matter of good practice every attempt should be made to obtain the explicit consent of the person involved except where this is likely to affect the purpose of sharing the information.

The key factor in deciding whether or not to disclose personal or sensitive information is proportionality: is the proposed disclosure a proportionate response to the need to protect or promote the welfare of the child or young person?

The amount of information disclosed, and the number of people to whom it is disclosed, should be no more than is necessary to meet the public interest in protecting or promoting the health and welfare of a child or young person. The more sensitive the information is, the greater the child-focused need must be to justify the disclosure and the greater the need to ensure that only those professionals who have to be informed receive the material ('the need to know basis').

The 'Need to Know' Basis

Relevant factors:

• What is the purpose of the disclosure?
• What are the nature and the extent of the information to be disclosed?
• To whom is the disclosure to be made (and is the recipient under a duty to treat the material as confidential)?
• Is the proposed disclosure a proportionate response to the need to protect the welfare of a child to whom the confidential information relates?

Sharing information where there may be long term agency involvement.

Children who are a subjecto of a Child Protection Plan always have an allocated Social Worker who is their 'key worker' and a multi-agency 'Core Group' of practitioners will be identified to share information for the whole time that the child remains a child subject to a Child Protection Plan. You will have a statutory or moral duty to share information in circumstances where children need to be safeguarded.

In other circumstances when a number of agencies or practitioners are involved with a child or young person, for instance, connexions personal advisor, school Staff, Social Worker it is now common practice to identify a lead professional who will act as the coordinating point for information sharing. This should be done in discussion with the young person and their consent obtained as appropriate. The Government issued guidance on the   role of the Lead Professional and a Toolkit to support Multi-Agency working in July 2005.

Whenever there are concerns about a child or young person's safety any new information should be shared as it arises.

Is there a difference between disclosing information within your own organisation or another organisation?

The approach to personal or sensitive information should be the same whether any proposed disclosure is internally within one organisation (e.g. within a school, or within children's social care services) or between agencies (e.g. a Social Worker to a teacher).

The need to disclose personal or sensitive information to others within your own organisation will arise more frequently than will be the case for inter-agency disclosure. For example, a teacher will need to discuss personal information with the Year Head and the Head Teacher more frequently than with a Social Worker. Pupils and their Parents would expect such discussions to take place within a school, so there will usually be implied consent.

How can you be sure the information you share with other practitioners or agencies will be kept safe and not shared inappropriately with others?

Practitioners are increasingly working in a multi-agency setting. It is important for practitioners to build up trust across agencies and to understand the statutory responsibilities each has in relation to safeguarding and promoting the welfare of children and young people. (See Appendix 2) This will enable practitioners to share information with confidence knowing that it will be treated confidentially and only shared with those who need to know.

When sharing information make sure you identify by name the person you are giving the information to, inform them that the information you are sharing is confidential and confirm what they are going to do with it.

Record what has been shared, why, when and with whom, including the name, job title and contact details, and why the information was shared.

Make sure any correspondence, electronic or written, is marked 'private and confidential - for addressee only' or similar. N.B. not all email is confidential.

Ask the recipient to confirm receipt of the information.

If asked for information by telephone, confirm the name, job title, department and organisation of the person making the request and the reason.

Take a main switchboard telephone number and call back the operator

Only give the information to the named enquirer who requested it

Record details of above

What if a young person or Parent/Carer wants to see the information which another agency has shared with you?

This should be treated as an 'Access to Records' request under the Data Protection Act 1998. You should follow your agency's Policy and Procedures in this respect, this will usually involve contacting the practitioner or agency who shared the information with you, to see if there is a valid reason why the information on the records cannot be made available. For children and young people of sufficient maturity (which for the vast majority of children and young people is taken to be 12 or over) the right to access information will belong to the child or young person rather than the Parent.

What about requests for information under the Freedom of Information Act?

The Freedom of Information Act interacts with other areas of law such as the Data Protection Act 1988 and the Human Rights Act. Freedom of Information requests potentially relate to a request for information recorded in any form held by any of the wide range of public authorities covered by the Act. However, the Act and accompanying Code of Practice issued by the Department for Constitutional Affairs make it clear that the Data Protection Act will remain the key legislation for the regulation of personal information held by authorities and other bodies. Personal information relating to the person requesting information is exempt from Freedom of Information requests and subject access provisions of the Data Protection Act will apply. 

What if information sharing might affect the safety of Staff or another person?

If you have information that suggests that, as a consequence of sharing information, a Staff member or another service user may be at risk, this must be shared between agencies as appropriate. A risk assessment and management strategy must be put in place as soon as possible.

Conversely, you need to recognise that a failure to share information may put someone in danger. 

5. Information Sharing Checklist

If a practitioner tells you that they are concerned about a child or young person and asks for any information you have about them, there are some questions you need to ask yourself before you share the information. You also need to be familiar with the key principles set out in this guidance.

About the request

• Why do they want this information?
• Is there a sufficient 'need to know'?
• Is the request 'proportionate' to the purpose for which the disclosure is sought?  (If the purpose is clear, then what information is needed will be clear)
• Have you got a legal duty or power to share the information?

About the information

• Is the information sensitive personal information?
• Do you need to seek consent? 
• Whose consent is needed?
• Do you already have informed consent to share the information?
• Would seeking consent or informing the person to whom the information relates, place someone at risk, prejudice a police investigation or lead to unjustified delay?
• Would sharing information without consent cause less harm than not sharing the information?
• Is the information up to date and accurate?
• Does the information distinguish between fact and opinion?
• Do you need to check with an originating agency that they give permission to share the information?

About the recipient

• Are you giving the information to the right person?
• Are you sharing it in a secure way?
• Does the person you are giving it to know that it is confidential?
• What will they do with it? Will there be secondary disclosure? E.g. if a doctor provides information to a school and the school passes it on to social care services.

After sharing information

• Is the person to whom the information relates, aware that the information has been shared?
• If telling the person now might prejudice the purpose for sharing the information or might put someone at risk of harm, when can you tell them?
• Have you recorded it?

End