Under s12 of the Homelessness Act 2002, housing authorities are required to refer homeless persons with dependent children who are ineligible for homelessness assistance or are intentionally homeless to social services as long as the person consents. If homelessness persists, any child in the family could be in need. In such cases, if social services decide the child’s needs would be best met by helping the family to obtain accommodation, they can ask the housing authority for reasonable assistance in this and the housing authority must respond.
Recording
The exemplars (Department of Health, 2002b and 2002c) produced to support the implementation of the Integrated Children’s System illustrate how social services and other agencies can record information about children in need and their families. The appropriate record to use at the different stages of working with children and families has been referenced throughout this guidance.
Information sharing
This guidance is about sharing information for the purposes of safeguarding and promoting the welfare of children. Sharing of information amongst practitioners working with children and their families is essential. In many cases it is only when information from a range of sources is put together that a child can be seen to be in need or at risk of harm.
You may be anxious about the legal or ethical restrictions on sharing information, particularly with other agencies. You should be aware of the law and should comply with the code of conduct or other guidance applicable to your profession. These rarely provide an absolute barrier to disclosure. You should be prepared to exercise your judgement. A failure to pass on information that might prevent a tragedy could expose you to criticism in the same way as an unjustified disclosure
A decision whether to disclose information may be particularly difficult if you think it may damage the trust between you and your patient or client. Wherever possible you should explain the problem, seek agreement and explain the reasons if you decide to act against a parent or child’s wishes. It is often helpful to discuss such concerns with a senior colleague, designated professional, or, if you are working in the NHS or local authority social services, your Caldicott Guardian.
What are the legal restrictions?
The decision whether to disclose information may arise in various contexts. You may have a niggling concern about a child that might be allayed or confirmed if shared with another agency. You may be asked for information in connection with an assessment of a child’s needs under s17 of the Children Act 1989 or and enquiry under s47 of that Act or in connection with court proceedings. In all cases the main restrictions on disclosure of information are:
Each of these has to be considered separately. Other statutory provisions may also be relevant. But in general, the law will not prevent you from sharing information with other practitioners if:
Common law duty of confidence
The circumstances in which a common law duty of confidence arises have been built up in case law over time. The duty arises when a person shares information with another in circumstances where it is reasonable to expect that the information will be kept confidential.
The courts have found a duty of confidence to exist where -
The duty is not absolute. Disclosure can be justified if:
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 trivial or 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’s whereabouts might telephone the school to establish whether the child was in school that day.
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.
Disclosure by consent
There will be no breach of confidence if the person to whom a duty of confidence is owed consents to the disclosure. Consent can be express (that is orally or in writing) or can be inferred from the circumstances in which the information was given (implied consent).
Disclosure in the absence of consent
The law recognises that disclosure of confidential information without consent or a court order may be justified in the public interest to prevent harm to others.
The key factor in deciding whether or not to disclose confidential information is proportionality: is the proposed disclosure a proportionate response to the need to protect the welfare of the child. The amount of confidential information disclosed, and the number of people to whom it is disclosed, should be no more than strictly necessary to meet the public interest in protecting the health and wellbeing of a child. The more sensitive the information is, the greater the child-focused need must be to justify 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:
Is there a difference between disclosing information within your own organisation or to another organisation?
The approach to confidential information should be the same whether any proposed disclosure is internally within one organisation (for example within a school, or within social services) or between agencies (for example from a teacher to a social worker).
The need to disclose confidential 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 confidential 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 the school, so there will usually be implied consent. But if not (for example if you disclose information that a child has asked you to keep secret) you will have to decide whether the circumstances justify the disclosure.
What if the duty is to a child or a young person?
A duty of confidence may be owed to a child or a 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 decisions, may give (or refuse) consent to a disclosure. Otherwise a person with parental responsibility should consent on their behalf.
Local authorities have a corporate responsibility to address the needs of children and young people living in their area.
The Local Government Act 2000 sets out a broad cross-government expectation that there should be a concerted aim to improve the wellbeing of people and communities.
To achieve this, there should be effective joint working by education, social services, housing and leisure, in partnership with health, police and other statutory services and the independent sector.