Hampshire Children's Trust

Obtaining, recording and sharing information

Information sharing must be done in a way that is compatible with the Data Protection Act, the Human Rights Act and the common law duty of confidentiality. However, a concern for confidentiality must never be used as a justification for withholding information when it would be in the child/young person’s best interests to share information. The Caldicott principles, set out in the Caldicott Report, December 2007, provide general principles that health and social care organisations should use when reviewing their use of client information and exemplify good practice. (NB: See Flowchart of key principles for information sharing in Appendix 3)

Obtaining information

Practitioners must explain the purpose for which information is being sought:

Information which is obtained for one purpose may not generally be used for another without first informing the child/young person of the planned change in use, and if possible obtaining their consent to this subsequent use.

The exception to this is where to do so would put that child/young person or others at increased risk of significant harm or an adult at risk of serious harm, or if it would undermine the prevention, detection or prosecution of a serious crime, including where seeking consent might lead to interference with any potential investigation.

Practitioners must make it clear to children and young people that they cannot offer unconditional confidentiality:

When talking with children and young people, it is important for practitioners to maintain their professional boundaries. Whilst being supportive where they can, distancing techniques should be used when appropriate and children/young people should be encouraged or supported to access confidential services if that is felt to be more appropriate to their needs (see penultimate bullet on next page).

Children and young people should be aware that if there is a Child Protection issue whe re they (or others) are likely to be at risk of significant harm, practitioners are under a duty to follow safeguarding procedures and cannot offer confidentiality. It is important that each practitioner deals with such occurrences sensitively and explains to the child/young person that they must inform the appropriate people who can help them, but that they will only tell those who need to know.

Practitioners can only offer confidentiality to children and young people on issues that do not involve significant illegal activities, eg: drug trafficking, arson. If the conversation begins to move to this kind of issue, the child/young person must be warned that confidentiality cannot be guaranteed.

In all cases where practitioners feel that they have to break confidentiality with the child/young person, they must inform the child/young person and reassure them that their best interests will be maintained.

In talking with children and young people, the practitioner needs to encourage them to talk to their parents/carers about the issue that may be troubling them and support them in doing this, where appropriate.

Children and young people should be made aware of the specialist confidential services that may be available, such as school nurses, counsellors, youth support workers, doctors and young people’s drop-in advice services.

All practitioners should be aware that health services (including doctors, school nurses and health drop-in) can offer confidential support and services (including contraception) to pupils under the age of 16 providing they follow the Fraser Guidelines. However, health professionals, like everyone else, must inform the appropriate services if they become aware of a Child Protection issue in discussions with a child/young person.

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Recording information

Practitioners must explain to the child/young person and, if appropriate, any adult with parental responsibility:

the purpose for which the information is being recorded

where and for how long the record will be kept

the circumstances in which it may be shared with other people

any other people and agencies who may have or may be given access to the information

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Consent to record

Good practice is for all meetings with children/young people and their families to be recorded appropriately (as mentioned in the Key points when sharing information section earlier). However, there are times when the interaction with the child/young person or their family/carer is more informal and practitioners need to decide whether they require consent to record the information obtained. If in doubt, the issue should be discussed with a line manager or supervisor.

If consent is felt to be required, practitioners will need to decide whether the child/young person is Fraser competent and can give their own consent to theinformation being recorded and potentially shared.

If the child/young person is not Fraser competent, consent to record and share information is decided by those with parental responsibility. If parental consent is required, that of one parent is sufficient. If they are separated or divorced, the consent of the parent holding parental responsibility would usually be obtained. In cases of family conflict, practitioners will need to consider which parent to approach and in most cases management or departmental advice should be sought.

Safeguarding guidance recommends that all reported cases of concern around under-16 sexual activity are documented, including detailed reasons for the decision when it is decided not to share information.

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Form of record

It should be remembered that practitioners are not legally permitted to keep any unofficial file notes. Examples of these would include records such as unofficial diaries or additional folders/notes on computers. The only notes to be recorded must be on official systems designed for that purpose or structuredfiles held within the appropriate team/service.

All records need to be relevant, brief, accurate and to the point. Facts should be recorded, not opinions or guesses. The only opinions recorded should be formal professional judgements which practitioners would be willing to share with the child/young person or their family.

Any person recording information should do so in agreement with the child/young person. They should try to agree with them a phrase with which they are both happy. For example, in a discussion with a 15-year-old boy who thinks he might be gay, but does not want anyone else to know at this stage, it might be recorded as a discussion about sex and relationship issues.

It should be remembered that children/young people (and their parents/carers in some circumstances) have a legal right of access to see their files. If working actively with a child/young person, good practice would be to share information with them appropriately without the need for such formal procedures. As a rough guide, parents/carers have the right to view educational records but not school records concerning pastoral care/counselling (see Right of access to records on page 18).

If a young person is sexually active, staff should refer to Working together to safeguard children (DfE). This states that practitioners should record information about young people under 13 who have been involved in sexual intercourse, or other sexually intimate behaviour, and should also discuss with their line manager whether there is a need to undertake a formal safeguarding investigation.

Additionally, for 13 to 17-year-olds and for under 13s, Working together to safeguard children expects all practitioners to use the local protocol for reporting under-18 sexual activity as a backdrop to inform decisions about whether an incidence of sexual activity should be treated as a safeguarding issue. There is no need to record all the details of a young person’s sexual activity, only information relevant for their welfare. Practitioners should agree with the child/young person what is recorded, where possible.

Recorded information should not be kept any longer than necessary for the purpose for which the information was originally obtained. Any destruction of records should be in accordance with each organisation’s record retention schedules.

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Right of access to records

Practitioners need to explain to children and young people that they have a right to see their files, subject to other people’s rights to keep their information private. This right to see information is known as a Subject  Access Request.

Each organisation must make their Subject Access Request process readily available to the child/young person they are working with. For most organisations, Subject Access Requests should be made to the organisation’s data protection officer. (nb: there are internal procedures for children and young people receiving services from Hampshire County Council).

Parents/carers have a right to see educational records until a young person reaches the school leaving age of 16 under the Educational Records Act 1989. This Act is specific to the curricular activity of the young person and does not cover wider records which might include pastoral care.

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Deciding to share information

Practioners must consider the welfare and safety of the child/young person and should consider the following questions:

  • Is the information confidential or particularly sensitive?

  • Has the child/young person or person with parental responsibility been told that their information may be shared in this way, why and with whom?

  • Have they agreed to sharing?

  • Should they be asked for consent? (It may not be appropriate to ask for consent if the information is to be shared anyway; in some cases it may even be dangerous to ask for consent.)

  • Is there concern that the child/young person may be suffering or at risk of significant harm?

  • Is there a risk that another person may suffer serious harm?

  • Would withholding the information undermine the prevention, detection or prosecution of a crime?

If consent is not forthcoming or cannot be obtained, practitioners should consider:

  • reasons to share, such as protection of the child/young person or another person, or for the prevention of crime and disorder

  • reasons not to share, including the public interest in maintaining public confidence in the confidentiality of information held by their organisation

  • whether the proposed sharing is a proportionate response to the need.

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Sharing

Practitioners should consider who should receive the shared information and how much information it is necessary to share. The information to be shared must be:

  • accurate – check first if necessary

  • up to date

  • necessary for the purpose for which it is being shared

  • shared only with those people who need to know

  • shared securely in line with advice from their organisation.

For example, this includes not mentioning the name of an individual in the e-mail header, phoning someone to say you are about to send them a confidential fax, double enveloping and marking the internal envelope Confidential and For the attention of xxxxxxxx.

Practitioners should not e-mail confidential information to people outside their secure networks. Many secure networks are about to be linked to the Government Connect portal, which will increase the number of secure links available.

Practitioners should establish with the recipient of the information whether they intend to pass it on to other people and ensure they understand the limits of any consent which has been given.

The subject of the information and, if different, the provider of the information should generally be told of the sharing if it is safe to do so.

The reasons for sharing or not sharing information must be recorded. If information is shared, the record must include which information was shared, when and with whom.

The decision to share or not to share information about a child/young person should always be based on professional judgement, supported by the cross-governmental guidance Information sharing: Guidance for practitioners and managers (HM Government, November 2008). The lack of an information sharing agreement between agencies should never be a reason for not sharing information that could help a practitioner deliver services to a child/young person.

Practitioners working with the Youth Offending Teams (YOTs) should also refer to the specific guidance for Wessex YOT. This is because certain data protection responsibilities fall upon the YOT manager and they are subject to separate guidance.

Take advice from your organisation’s legal department before disclosing information to the police, court officials, legal practitioners or claimants/defendants.

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Appendices >