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Information Sharing


Contents

  1. Introduction
  2. The Concept of Information Sharing
  3. Key Points for Workers when Sharing Information
  4. Government Guidance

    Amendments to this Chapter


1. Introduction

Information sharing agreements are being developed for each of the multi-agency groups concerned with Safeguarding children and adults at risk for example the Multi-Agency Safeguarding Hub (MASH). These will be made available as they are completed on the Safeguarding Partnership Board Website.

Effective information-sharing underpins integrated working and is a vital element of both early intervention and safeguarding. Research and experience have shown repeatedly that keeping children safe from harm requires professionals and others to share information:

  • About a child's health and development, and exposure to possible harm;
  • About a parent or carer who may need help, or may not be able to care for a child adequately and safely; and
  • About those who may pose a risk of harm to a child.

Often, it is only when information from a number of sources has been shared and is then put together, that it becomes clear a child is suffering, or at risk of suffering, significant harm. However, when professionals share information at an early stage, this should reduce the likelihood of a child suffering significant harm.

Information sharing is key to the goal of delivering better, more efficient services that are coordinated around the needs of the individual. It is essential to enable early intervention and preventative work, for safeguarding and promoting welfare and for wider public protection. Information sharing is a vital element in improving outcomes for all.

It is also important that people remain confident that their personal information is kept safe and secure and that professionals maintain the privacy of the individual, whilst sharing information to deliver better services. It is therefore important that professionals share information appropriately as part of their day-to-day practice and do so confidently.

Professionals recognise the importance of information sharing and there is already much good practice. However, in some situations they feel constrained from sharing information by uncertainty about when they can do so lawfully, especially in early intervention and preventative work where information sharing decisions may be less clear than in safeguarding or child protection situations. For those who have to make decisions about information sharing on a case-by-case basis, the document, Protocol for Information Exchange between States Departments, Revised 2008 (see references Chapter 18) seeks to give clear practical guidance, drawing on experience and consultation from across a spectrum of adult and children’s services. There is also a flowchart in Section 3.8 which can assist with decision-making.

Disclosure of any personal data must be bound to both common and statute law and professional ethics and codes of conduct. The data protection principles require that such information is obtained and processed fairly and lawfully; is only disclosed in appropriate circumstances and for the purpose(s) it was obtained; is accurate, relevant, and not held longer than necessary; and is kept securely. Each agency must be clear about their legal gateway to the proactive sharing of information. Each agency is responsible for maintaining their own records of work with child protection cases. The agency should have a policy stating the purpose and format for keeping the records and for their destruction.

Those providing services to adults and children, for example GP's, will be concerned about the need to balance their duties to protect children from harm and their general duty of care towards their patient or service user, e.g. a parent. Some professionals and staff face the added dimension of being involved in caring for or supporting more than one family member - the abused child, siblings, and an alleged abuser. The overriding consideration must be to safeguard the child.


2. The Concept of Information Sharing

Working Together to Safeguard Children 2015 states that:

“Effective sharing of information between professionals and local agencies is essential for effective identification, assessment and service provision.

Early sharing of information is the key to providing effective early help where there are emerging problems. At the other end of the continuum, sharing information can be essential to put in place effective child protection services. Serious Case Reviews (SCRs) have shown how poor information - sharing has contributed to the deaths or serious injuries of children.

Fears about sharing information cannot be allowed to stand in the way of the need to promote the welfare and protect the safety of children.” (Working Together 2015, Chapter 1, 24).


3. Key Points for Workers when Sharing Information

Consent

The general principle is that information will only be shared with the consent of the subject of the information. Consent must be freely given after the alternatives and consequences are made clear to the person from whom permission is being sought. If the data is classified as sensitive data the consent must be explicit. In any case the specific detail of the processing should be explained to the individual. This should include:

  • Precisely who is processing the data;
  • The particular types of data to be processed;
  • The purpose of the processing;
  • Any special aspects of the processing which may affect the individual, e.g. disclosures;
  • The persons/agencies to whom the information will be made available.

In the absence of consent, the professional must balance the duty of care, the public duty of confidentiality and Human Rights of the individual against the need to prevent and detect crime and disorder, and serve the public interest, in order to make a positive decision whether or not to release the information.

If informed consent has not been sought, or has been sought and withheld, the professional must consider if there is any other overriding factor for the justification for the disclosure. In making this decision the following should be considered:

  • Is the disclosure necessary for the prevention or detection of crime, prevention of disorder, to protect public safety, or to protect the freedoms of others?
  • Is the disclosure necessary for the protection of a child or young person or a vulnerable adult?
  • What risk is posed to others by this individual?
  • What is the vulnerability of those who may be at risk?
  • What will be the impact of the disclosure on the subject and on others?
  • Is the disclosure proportionate to the intended aim?
  • Is there an equally effective but less intrusive alternative means of achieving that aim?

If consent is not sought, or is sought and not / partially obtained, the reasons for not seeking consent or otherwise breaching confidentiality must be recorded. The reasons must be explained to the subject as soon as this can be done without negating the purpose of the original information enquiry.

Disclosure for Purpose of Protecting Children

Child protection enquiries, investigations and conferences can only be successful if professionals share and exchange all relevant information. Those with such information must treat the information as confidential at all times but ethical and statutory codes that cover confidentiality and data protection are not intended to prevent the exchange of information between different professional staff which has the purpose of ensuring the protection of children. Sometimes concerns will arise within an agency as information comes to light about a child or family with whom the service already is in contact. Whilst professionals should, in general, seek to discuss any concerns with the family and where possible seek their agreement to share the information with other agencies, this should not be done where this will place a child at increased risk of significant harm.

Professionals who attend meetings about children or young people should have given thought to their contribution and have prepared a written report of the relevant information they hold and which they wish to discuss with others. It is good practice for professionals to discuss their contribution to a Child Protection Conference with the child/family before the conference/meeting where time permits so that the issue of data protection and human rights are addressed. On occasions, however, it may be essential that the information to be disclosed will only be given to other professionals. In all cases where the Police are involved, the decision on when to inform the parents (about referrals from third parties) must be discussed with the Police officer leading the investigation, and be one of the decisions made by those taking part in the Strategy Discussion/Meeting.

Good record keeping is an important part of the accountability of professionals to those who use their service. Clear and accurate records ensure that there is a documented account of an agency’s or professional’s involvement with a child/family. To serve these purposes, records should use clear, straightforward language, should be concise, and should be accurate not only in fact, but also in differentiating between opinion, judgement and hypothesis.

Those providing services to both adults and children will be concerned about the need to balance their duties to protect children from harm and their general duty of care towards patient or service user. Some will face the added responsibility of supporting the child, the parent/s and the abuser. Where there are concerns about a child, however, the child must come first in respect of information exchange. In such cases a decision should be taken about whether a different worker should be allocated to support the parent and/or the alleged abuser.

Medical Disclosure

Children of sufficient age and understanding should be kept fully informed of processes involving them, should be consulted sensitively, and decisions about their future should take account of their views.

If it is believed that a child is a victim of neglect or physical, sexual or emotional abuse and the child cannot give or withhold consent to disclosure:

  • Information must be given promptly to an appropriate, responsible person or statutory agency, where it is believed that disclosure is in the patient’s best interests. All Health and Social Care Services and Family Nursing and Home Care staff must follow the joint Child Protection Policy;
  • The child should usually be informed about the intention to disclose before doing so, with due consideration to their age and understanding;
  • Circumstances may arise in relation to children, where concerns about possible abuse need to be shared with other agencies, such as the Children's Service;
  • Where appropriate, those with parental responsibility should be informed about the disclosure unless to do so would jeopardise the safety of the child or any consequential investigation against that person. If this occurs the reasons for not seeking agreement of the parent or child to disclose confidential information must be recorded;
  • If for any reason it is believed that disclosure of information is not in the best interests of child, the decision not to disclose may have to be justified and reasons must be recorded.

Disclosure may on occasions be required by law or by Court Order. Disclosure in the public interest means the interests of an individual, or group of individuals or of society as a whole. For example society’s interest in avoiding child abuse or preventing serious crime would outweigh the individual’s right to confidentiality.

Disclosure to Guardians ad Litem (GaL)

In certain circumstances involving legal proceedings relating to a child the court appoints a Guardian ad Litem (GaL) to act on behalf of the child. The GaL is considered an officer of the court and represents the interests of the child in court and legal matters.

A GaL has the right at all reasonable times to examine and take copies of records from Children’s Service with respect to child protection concerns in relation to a child they have been appointed to represent. Such information may then be admissible as evidence on any matter referred to in a GAL’s report or statement in Court proceedings. The GAL is personally responsible for ensuring the confidentiality of such information including its security and destruction.

GaL’s have undertaken not to disclose such information in the course of their other professional duties. Where any professional is concerned as to whether a GaL should have access to records kept by them, they should initially contact their Line Manager.

Disclosure to Therapists for Offenders

General - Children’s Statements / Videos made in Cases of Abuse

  • The right to refuse disclosure of a statement or video to a therapist for an offender remains the prerogative of the Police in consultation with the agencies involved in the process of making the video. The majority of videos are made jointly by the Police and Children’s Service;
  • Any requests to view a statement or video made by a child witness for the purposes of therapy connected with the offender must be put in writing;
  • All criminal and civil proceedings will have been completed before any request to view videos will be considered.

Written Statements

  • The victim’s consent and consent from the parent/guardian, dependent upon the age of the victim, will be sought in writing by the Police prior to any viewing of a written statement by another agency/professional;
  • It is essential that the victim’s details are kept confidential (identity removed);
  • Viewing will only take place at a Police station and no copying will be allowed.

Videos

  • No copy will be made and the video will only be viewed on Police premises;
  • Where a request is made to view the video, the victim’s consent must be obtained in writing by the Police, where practicable, or from the parent/guardian, dependent upon the age of the victim;
  • The video must relate to an offence for which the offender has admitted guilt;
  • Videos to be shown will be carefully ‘screened’ to ensure that the identity of the child’s whereabouts is not compromised.

Professionals Meetings

Professionals’ meetings may be held when deemed necessary by all partners, following the protocols in use by States employees. Information exchanged at such a meeting will be minuted and given in accordance with the confidentiality agreement at Appendix E, of the Protocol for Information Exchange between States Departments, (see reference Chapter 18) which must be noted by all present prior to the commencement of the meeting. Personal data should not be made available unless the consent of the subject has been obtained, or the reasons why this is not possible or not appropriate are recorded and explained to the meeting.


4. Government Guidance

'Information Sharing: Guidance for Practitioners and Managers' states that:

“Even where you do not have consent to share confidential information, you may lawfully share it if this can be justified in the public interest. Seeking consent should be the first option. However, where consent cannot be obtained or is refused, or where seeking it is inappropriate or unsafe…., the question of whether there is a sufficient public interest must be judged by the practitioner on the facts of each case. Therefore, where you have a concern about a person, you 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 from significant harm, protect adults from serious harm, promote the welfare of children or 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.” (Information Sharing: Guidance for practitioners and managers DoH 2008 P21)

Working Together 2015 states that:

“… all organisations should have arrangements in place which set out clearly the processes and the principles for sharing information between each other, with other professionals and with the LSCB; and no professional should assume that someone else will pass on information which they think may be critical to keeping a child safe. If a professional has concerns about a child’s welfare and believes they are suffering, or likely to suffer, harm, then they should share the information with local authority children’s social care.

Information Sharing: Guidance for practitioners and managers (2015) supports frontline practitioners working in child or adult service who have to make decisions about sharing personal information on a case-by-case basis. The guidance can be used to supplement local guidance and encourage good practice in information sharing.” (Working Together 2015)

Where there is a clear risk of significant harm to a child, or serious harm to adults, the public interest test will almost certainly be satisfied. However, there will be other cases where practitioners will be justified in sharing some confidential information in order to make decisions on sharing further information or taking action. The information shared should be proportionate. Decisions in this area need to be made by, or with the advice of, people with suitable competence in Child Protection work such as named or designated professionals or senior managers.

In Jersey, the legal framework relating to the protection of personal information is set out in:

  • The Human Rights (Jersey) Law 2000 (“HRL 2000”), which incorporates the European Convention on Human Rights (“ECHR”) into Jersey law, including the Article 8 right to a private and family life;
  • The customary law duty of confidentiality; and
  • The Data Protection (Jersey) Law 2005 (“the DPL 2005”).

For public authorities, the first point they need to consider with regard to this framework, is whether they have the legal authority to share data for the purposes of this agreement. In the UK, legal powers and functions have been placed on public authorities, in particular in The Children Act 2004, that authorise them to co-operate with one another promote the welfare and safeguard children, including by means of data sharing. Jersey has not yet enacted the same overarching powers. The Law Officers Department have provided advice on the application of the existing powers of the Children’s Service, Police, Probation Service and participating Ministerial Departments to share data for the purposes of the MASH. Those powers may be used to share information proactively with the Children’s Service, which is responsible for administering the MASH and in response to requests from the Children’s service or the Police. However, information may only be shared where doing so is, in all other relevant respects, compatible with the requirements of the DPL 2005, HRL 2000 and the customary law duty of confidence. Further details of those requirements are set out below.

The HRL 2000

The HRL 2000 incorporates the European Convention on Human Rights (“the ECHR”) into Jersey’s domestic law. Article 7 of the HRL 2000 requires that public authorities act compatibly with the ECHR. With regard to the disclosure of personal information for the purposes of the MASH, the right that needs to be taken most earnestly into account by public authorities is Article 8 of the ECHR. Article 8(1) ECHR recognises that everyone has the right to respect for their private and family life, their home and their correspondence. However, Article 8(2) then qualifies this right by providing that:

There shall be no interference by a public authority with exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of crime or disorder, protection of health and morals or for the protection of rights and freedoms of others.

Sharing personal and confidential information held about a person may interfere with a person’s rights under Article 8(1). Therefore, those public authorities sharing information with the MASH and responsible for running the MASH hub itself, should satisfy themselves, in each case, that sharing personal information is a justified interference with the right to private life for the purpose of Article 8(2). Where information sharing takes place in accordance with the informed consent of the subject of the information, the risk of an unjustified interference with the right in Article 8(1) ECHR will be very low. It must be remembered that the data subject has the right to withdraw their consent at any time.

It will also sometimes be necessary to share information under the MASH arrangements without consent. Where that is the case it will be important to ensure that any interference with the Article 8(1) ECHR right is “necessary in a democratic society” and in pursuit of one of the legitimate aims set out in Article 8(2) ECHR. Where a child or young person is at risk of significant harm or sharing information is necessary to prevent crime or disorder, interference with the individual’s rights may be justified under Article 8(2) ECHR, provided that the amount of information shared is proportionate to the purpose and that sharing takes place in accordance with the law.

Duty of Confidence

In Jersey a duty of confidence will arise where a person receives information that has the necessary quality of confidence about it in circumstances that expressly or impliedly give rise to an expectation that the information will be kept confidential. Much of the information that will be shared with or held in the MASH will be subject to a duty of confidence owed to the subjects of that information.

Where a duty of confidence arises it will usually be unlawful to disclose the information subject to that duty to a third party. However, the existence of a duty of confidence is not an absolute bar on the disclosure. Confidential information can be lawfully disclosed where the person to whom the duty is owed has given their informed consent. Further, even where it is not possible or appropriate to obtain consent to disclose, it may still be possible to share the information lawfully where there is either an overriding public interest in disclosure or sharing is required by a court order or other legal obligation.

The Data Protection Law (DPL) 2005

The DPL 2005 regulates the “processing” of “personal data”. Personal data is data which relates to a living person, including the expression of any opinion or indication about the intentions in respect of the individual [1]. Processing of personal data includes anything which may be done to personal data, such as obtaining, holding, using, disclosing or destroying it. Therefore, the requirements of the DPL 2005 are almost certain to apply to the sharing of information with or by the MASH.

Under the DPL 2005 a person or organisation that determines the purposes for which and the manner in which any personal data are, or are to be, processed is a “data controller” and must comply with the eight data protection principles set out in Schedule 1 to the DPL 2005. The data controller will also be responsible for handing request for access to personal data from the data subjects.

In relation to the MASH, the signatories to this agreement supplying personal data to the MASH and receiving personal data from the MASH will be data controllers in relation to the version of the data that they process for their own purposes. As the Children’s Service will be solely responsible for determining the purposes and the manner in which personal data are processed within the MASH, the Children’s Service will be the data controller for that personal data, even though the information may be processed electronically on the MASH IT system and copies of the information may also be held by the organisation from which it originated.

With regard to the substantive requirements of the DPL 2005, all eight of the data protection principles must usually be complied with by the data controller. Annex A to this memo briefly describes the requirements of the most relevant data protection principles for these purposes.

[1] Article 1(1) of the DPL 2005.

The Children (Jersey) Law 2002

An express power to share information arises from Article 42 of the 2002 Law, which creates an obligation for the Minister to make enquiries where he or she is informed that a child is the subject of an emergency protection order or is in Police protection, or where the Minister has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm. In such circumstances the Minister is required to make or cause to be made, such enquiries as the Minister considers necessary to enable the Minister to decide whether he or she should take any action to safeguard or promote the child’s welfare. Where the Minister is conducting enquiries under this Article, it is the duty of any administration of the States to assist the Minister with his or her enquiries (in particular by providing relevant information and advice) if called upon by the Minister to do so, unless it would be unreasonable to do so in all the circumstances of the case.

Article 42 is a potential source of powers for both the Children’s Service (which exercises these functions on behalf of the Minister) and all other administrations of the States responding to enquiries from the Children’s Service, to share personal data.

Implied powers for the Minister (and their officials) to share information may arise from several functions under this Law, particularly those functions in Part 3, which contain provisions concerning Ministerial support for children and families. For example, Article 17 of the Law contains obligations for the Minister to provide accommodation to any child in need who appears to the Minister to require accommodation. Article 24 of the Law makes provision for the Minister to apply for a care order or supervision order where he or she is satisfied of certain matters. I expect that it can properly be said that information sharing is necessary in order for the Minister to fulfil these duties and functions.

Express and Implied powers for the Police to share information arise from Article 41 of this law which empower a Police officer, who has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, to take the child into Police protection.

The Adoption (Jersey) Law 1961

Powers to share information for the purposes of the MASH potentially arise under the 1961 Law. For example, at a general level, Article 3 places a duty on the Court and the Minister when making adoption decisions to have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the infant throughout the infant’s childhood. Some information sharing by and with the Minister or their officials might be expected if that duty is to be fulfilled.

The Education (Jersey) Law 1999

Article 14 makes provision for the Minister to apply for an education supervision order, in specified circumstances, placing a child under the supervision of an officer in an administration of the States. Under Schedule 3 of that Law, where a supervision order is in force, the supervisor may give directions to the child and the parents of the child and, where any directions he gives to the child or parent are not complied with, the supervisor may consider what further steps to take. It might be implied from these powers that the Minister and the supervisor have the power to collect and share personal information to fulfil these responsibilities.

Police Force (Jersey) Law 1974 and States of Jersey Police Force Law 2012

The States of Jersey Police and Honorary Police have express and implied powers to share information. In general, Article 2 of the Police Force (Jersey) Law 1974 and Article 16 of the States of Jersey Police Force Law 2012, place a general duty on a Police officer to the best of his or her ability to cause the peace to be kept, prevent all offences and to take all such lawful measures as may be necessary for the purposes of bringing offenders with all due speed to justice. Some proportionate information sharing, including in the context of the MASH will necessarily be ancillary to the performance of this duty.

Mental Health (Jersey) Law 1969

At a general level, Article 3 of the 1969 Law gives the Minister the power to make arrangements for the purpose of the care of persons suffering from mental disorder or addiction or for the after-care of persons who have been so suffering, and for persons requiring special care. A power to share information where necessary for the purposes of fulfilling this function can be implied.

Sex Offenders (Jersey) Law 2010

Among other things, Article 28 of the 2010 Law requires that arrangements be put in place between Ministers and the Police for the assessment and management of persons who pose a risk of sexual harm. Article 28(8) of the 2010 Law makes it clear that the co-operation that is required to fulfil these arrangements may in practice include the exchange of information.

The States of Jersey Law 2005

Article 26 of the 2005 Law provides that each Minister shall be a corporation sole with the power to enter into agreements, acquire, hold and dispose of movable property, do any other thing which the Minister can do by virtue of his or her office, and do anything “reasonably necessary or expedient for or incidental to” any of those matters. The power to do anything necessary, expedient or incidental to any other thing the Minister can do in my view ensures that where the sharing of personal information is necessary to fulfill an identifiable statutory function there will be a power to do so. Further, by virtue of Article 28 the Minister can delegate powers conferred upon or vested in them by or under the 2005 Law or any other enactment to an officer, subject to some restrictions. This could include powers to do things that are necessary, expedient or incidental to the Ministers other functions such as sharing personal information.

Amendments to this Chapter

In March 2016, Section 1, Introduction was updated to include that Information Sharing Agreements are being developed for each of the multi-agency groups concerned with Safeguarding children and adults at risk for example the Multi-Agency Safeguarding Hub (MASH). These will be made available as they are completed on the Safeguarding Partnership Board Website.

End.