Guidance from HM Government document: Information Sharing – Advice for Practitioners providing Safeguarding Services to Children, Young People, Parents & Carers: March 2015.
This article sets out some of the key points from the above Guidance as well as considers some of the information sharing conditions of the Data Protection Act 1998.
The Guidance indicates that "if a practitioner has concerns about a child's welfare, or believes they are at risk of harm, they should share the information with the Local Authority, and/or the police or any organisation which is required. Security of information sharing must always be considered and should be proportionate to the sensitivity of the information and the circumstances. If it is thought that a crime has been committed and / or a child is at immediate risk, the police should be notified without delay".
Further the Guidance explains that "where there are concerns about the safety of a child, the sharing of information in a timely and effective manner between organisations can reduce the risk of harm. Whilst the Data Protection Act 1998 places duties on organisations and individuals to process personal information fairly and lawfully, it is not a barrier to sharing information where the failure to do so would result in a child or vulnerable adult being placed at risk of harm. Similarly human rights would not prevent sharing information where there are real safeguarding concerns".
The Guidance reiterates that the "DPA 1998 does not prohibit the collection and sharing of personal information. It does, however, provide a framework to ensure that personal information about a living individual is shared appropriately. In particular, the DPA balances the rights of the information (data) subject and the need to share information about that individual. It is essential to consider the balance in every case".
In terms of that balance, you should consider whether or not it is possible to obtain consent in every case. The Guidance emphasizes "you do not necessarily need the consent of the information subject to share their personal information, although wherever possible, consent should be sought. However there are times when this may not be possible, for example, where it is unsafe to do so. Even without consent, it is still possible to share personal information about a living individual" in line with the DPA conditions contained within Schedules 2 and 3 of the Act.
Schedules 2 and 3 of the DPA set out conditions which should be fulfilled before disclosure is deemed to be lawful. Before sensitive personal data (1) is disclosed it must meet one of the conditions from Schedule 2 and one of the conditions from Schedule 3 of the DPA. The key conditions which are likely to be encountered include:
As you can see, even where the information / data subject does not provide consent to information being disclosed, there are a raft of other conditions which would allow disclosure so long they are applicable to the information requested.
The Guidance reaffirms the legal position that "if the information is confidential, and the consent of the information subject is not gained, then the data controller needs to satisfy themselves that there are grounds to override the duty of confidentiality in the circumstances. This can be because it is overwhelmingly in the information subject's interests for the information to be disclosed". Again disclosure should tie in with the Data Protection conditions indicated.
It is also possible that an overriding public interest would justify disclosure of the information even where the DPA conditions do not apply. You should consider the balancing exercise again weighing up the rights of the individual verses the public interest element to reach a conclusion as to whether disclosure should occur on this basis.
You must only share sufficient information to achieve the objective.
The Local Safeguarding Children Board can request that a person or body supply information which it requests to the Board or to another person or body specified in the request. This is on the basis that the request is for the purpose of assisting the Board to perform its function, and that the request is made to a person or body who is likely to have relevant information because it relates to that person or body, and / or its functions (Children Act 2004, section 14B).
The Guidance suggests that information should be:
The Guidance also reinforces '7 Golden Rules of Information Sharing' (see document) which are worth considering not just in relation to children, but also more widely.
Overall, it is possible to share information in connection with an individual, be they an adult or child where there are concerns about safety, vulnerability or risk. In every case you should consider whether it is appropriate or possible to obtain consent. However, even where it is not possible to obtain consent, it is still possible to share information if there is good reason. The disclosure should tie in with the conditions of the DPA or be in the public interest. Any information disclosed should be deemed necessary, and should be relevant and proportionate for the purpose. At all times a record of the decision making process should be kept, and should include a balance between the rights of the data subject verses the rationale for disclosure and non-disclosure. This is what potentially offers a defence or shows the decision making rationale should there be any claim or issue arising in the future.
(1) Data Protection Act 1998: Sensitive personal data.
In this Act “sensitive personal data” means personal data consisting of information as to—
(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c) his religious beliefs or other beliefs of a similar nature,
(d) whether he is a member of a trade union
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of any offence, or
(h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.