Appendix 4 - Information sharing legal framework

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1.1

The main sources of relevant law with respect to information sharing and confidentiality in child protection are the:

• Common Law Duty of confidence;
• Human Rights Act 1998;
• Data Protection Act 1998;
• Crime and Disorder Act 1998;
• Children Act 1989;
• The Caldicott Standards (applicable to health and LA children's social care);
• Children Act 2004.

2.1

The Common Law Duty of confidence arises when a person shares information with another in circumstances where it is reasonable to expect that the information will be kept confidential e.g. a contract or a patient-doctor relationship.

2.2

The personal information about children and families kept by professionals and agencies should not generally be disclosed without the consent of the subject. Where there is a defined overriding public interest in supplying the information, for example for the prevention and detection of crime, information can be disclosed without consent being sought.

2.3

The key factor in deciding whether or not to disclose confidential information is proportionality (i.e. is the proposed disclosure a proportionate response to the need to protect the child's welfare?). The amount of confidential 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 the health and well-being of the child.

2.4

The approach to confidential information should be the same whether any proposed disclosure is internally within an organisation e.g. within a school or LA children's social care or between agencies e.g. teacher to a social worker.

3.1

Article 8 of the Convention states that:

• Everyone has the right to respect for her / his private and family life, home and correspondence;
• There shall be no interference by a public authority with the 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 disorder or crime, protection of health or morals or for the protection of rights and freedom of others.

3.2

The right is not absolute and there are certain situations when Article 8 enables professionals to disclose information without consent e.g. to:

• Safeguard a child;
• Protect her / his health or morals;
• Protect the rights and freedoms of others or;
• Prevent disorder or crime.

3.3

Article 8 is only one of the articles of the Convention. The Convention also expressly enshrined the right of all citizens not to live in degrading or inhuman conditions for instance and children are citizens under the Act just as are adults.

3.4

As with the common law described above, the principle of 'proportionality' applies to sharing confidential information i.e. when disclosing information without consent one must limit the extent of the disclosure to that which is necessary to achieve the aim of disclosure i.e. to protect the child.

4.1

The Data Protection Act 1998 regulates the handling of information kept about an individual on a computer or in a manual filing system and requires that personal information is:

• Obtained and processed fairly and lawfully;
• Processed for limited purposes and not in any manner incompatible with those purposes;
• Accurate, up-to-date and relevant;
• Held for no longer than necessary;
• Kept secure;
• Only disclosed if specific conditions set out in the Act are satisfied.

4.2

Information can be shared on the basis of one of the legitimate conditions in Schedule 2 of the Data Protection Act 1998 for sharing information, which include:

• Disclosure is necessary to comply with a court order or legal obligation;
• It is necessary to protect the vital interests of the data subject;
• It is necessary for the exercise of a statutory function or other public function exercised in the public interest e.g. a s17 assessment or s47 enquiry; and
• It is necessary for the purposes of legitimate interests of the Data Controller or of the third party or third parties to whom the data is disclosed (except where it is unwarranted by reason of prejudice to the rights and freedoms or legitimate interests of the data subject).

4.3

If the information being shared is 'sensitive personal data' e.g. racial or ethnic origin, religious beliefs or political opinions, trade union membership, sexual life, criminal offences, one of the following additional conditions of Schedule 2 must be met:

• The subject has explicitly consented;
• It is necessary to protect her/his vital interests 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
• It is necessary to establish, exercise or defend legal rights;
• It is necessary to exercise a statutory function; and
• It is in the substantial public interest and necessary to prevent or detect an unlawful act and obtaining express consent would prejudice those purposes.

4.4

More guidance on the Data Protection Act is available from the Information Commissioner's website: www.dataprotection.gov.uk

5.1

For NHS and LA children social care, the Caldicott principles and processes provide a framework of quality standards for the management of confidentiality and access to personal information under the leadership of a Caldicott Guardian.

5.2

Health and LA children social care must ensure that their information sharing arrangements are compliant with their own local procedures based on the Caldicott Standard (see Health Service Circular / LAC circular HSC 2002/002/LAC (2002) 2 'Implementing the Caldicott Standard into Social Care').

5.3

Each health service and LA children social care will have their own Caldicott Guardian who should be able to provide advice and guidance as required.

6.1

All professionals have a duty to disclose information where failure to do so would result in a child or children or others suffering from neglect, or physical, sexual or emotional abuse.

6.2

In general, the law does not prevent individual sharing information with other practitioners to assist in safeguarding a child if:

• Those likely to be affected consent; or
• The public interest in safeguarding the child's welfare overrides the need to keep the information confidential; or
• Disclosure is required under a court order or other legal obligation.

7.1

This section provides guidance upon the extent to which sharing of information is permitted by the following provisions:

• The Children Act 1989 (s17, s27, s47 and Schedule 2);
• The Local Government Act 2000 (s2);
• The Local Government Act 1972 (s111);
• The Education Act 1996 (s13);
• The Education Act 2002 (s175);
• The Learning and Skills Act 2000 (s114 and s115);
• The Crime and Disorder Act 1998 (s115).

7.2

The other powers and duties referred to in this section, taken together, create a framework for the sharing of information between different groups of professionals an agencies including the voluntary sector and professionals working across service area and local authority boundaries. Used pro-actively, they can facilitate the collection and sharing of information in many of the situations where children are most in need of help and targeted services. These situations are not limited to those where risks have materialised or where the child is at risk of imminent or serious harm.

7.3

All of the above statutory provisions must be used in a manner that is compatible with the requirements of the Data Protection Act and the Human Rights Act and, unless the statutory provision clearly authorises disclosure, with the common law duty of confidentiality.