The government’s guidance is helping different agencies to share information but problems persist, as Dai Durbridge reports
We all know that sharing relevant information about children is essential, not only to protect them from harm, but also to promote their welfare and to ensure that children and young people with additional needs get the services they require. The government appreciated the importance of information sharing and made it the cornerstone of its Every Child Matters strategy.
Information Sharing: Practitioners’ Guide came out in April 2006. Representatives from a wide range of professional and regulatory bodies including health, education, social care and police, and both statutory and voluntary agencies, were invited to share their views on the guidance prior to its release.
A public consultation attracted over 250 responses from practitioners and managers. The views of children and young people were also sought. As a result of this consultation, the government found that the key factor in many serious case reviews was a failure to record and share information and a failure to understand its significance. There was also clear evidence that practitioners felt constrained from sharing information by the uncertainty of the law. As a result, information sharing practices across agencies and across the country varied enormously, potentially to the detriment of the child.
The guidance on best practice for sharing information has been with us for just over a year now. It aimed to cut through the fog of uncertainty surrounding the Data Protection Act and its Schedule 1 and 2 exceptions and provide simple guidance that told everyone working with children exactly what information you could share and in what circumstances to share it.
In fact, the information commissioner himself, Richard Thomas, says in the introduction to the guidance that ‘ensuring that children and young people are kept safe and receive the support they need when they need it is vital. Where information sharing is necessary to achieve this objective it is important that practitioners have a clear understanding of when information can be shared. It is also important for them to understand the circumstances when sharing is inappropriate. The Data Protection Act is not a barrier to sharing information but is in place to ensure that personal information is shared appropriately. This guidance is welcome as it sets out a framework to help practitioners share information both professionally and lawfully.’
This was praise indeed. However, at this point the guidance had not been introduced so its success or failure in practical terms was still an issue. Would it be workable? Would it finally lay to rest the difficulties of inter-agency information sharing? Would further guidance or information sharing agreements be required? In summary, has it stood the test of time one year on?
Is it workable?
Information Sharing: Practitioners’ Guide aimed to improve practice by giving practitioners across children’s services clear guidance on when and how they can share information. It also sought to provide clarity on the legal framework for practitioners sharing information about children, young people and families.
It presented information simply and succinctly. For example, the six key points on information sharing should be on every practitioner’s notice board. This helpful summary breaks down everything one needs to know about sharing information into six simple steps that can be applied to every information sharing situation.
It should be remembered that the law underpinning information sharing is not the friendliest. The numerous court decisions that form the basis of the law of confidentiality coupled with the dense and complex Data Protection Act 1998 are enough to stop any practitioner in their tracks. This guidance succeeded where others failed by cutting through the legal web to provide simple, straightforward guidance on the dos and don’ts of information sharing.
There is little doubt that for most practitioners, the guidance is workable. If this were the case for practitioners across all agencies and across the country it would be mission accomplished. However, problems persist.
Information Sharing: Practitioners’ Guide was the first cross-government guidance for practitioners across the whole of the children’s workforce. The guidance was intended to complement and support wider policies to improve information sharing across children’s services.
Even before April 2006 there was plenty of guidance available which was specific to sharing information within particular settings. However, as children’s services were moving towards more multi-agency working, practitioners needed clear guidance in order to support this integrated approach.
In the introduction it specifically states that the guidance should be used ‘by everyone who works with children and young people, whether they are employed or volunteers, in the public, private or voluntary sectors. It is for staff working in health; education; early years and childcare; social care; youth offending; police; advisory and support services, and leisure’.
Indeed in March 2007, the DfES published a list of endorsements from, among others, the Local Government Association, the General Medical Council, the Royal College of General Practitioners, the Royal College of Paediatrics and Child Heath and the police. So with all these endorsements from every sector, why are practitioners still experiencing difficulties with inter-agency sharing?
It simply comes down to a different interpretation of the guidance, an issue that most likely stems from the interpretation of the law that the various professionals have relied on in the past.
It can be summed up like this: Children’s services and other agencies whose only role is to work with children interpret the information sharing guidance from a positive viewpoint. Their decision-making process is phrased thus – ‘I need to share this information. What steps do I need to take to ensure I share it correctly?’ The emphasis is on sharing. Historically, professionals whose role happens to include working with children (as opposed to it being their only focus) have taken a different approach – ‘I have this information. The law stops me from sharing it.’ The flow of information dries up. This different approach to the same guidance leads to practitioners finding that the information sharing process can be one-sided and perhaps better defined as an information gathering process by other agencies.
A further problem is the interpretation of law covering information sharing by governing bodies or professional associations. For example, one professional body has offered the following advice: ‘Disclosure of confidential information without consent or ethical or lawful justification carries the risk of legal action by the patient and/or investigation by the relevant regulatory body which may lead to a finding of impaired fitness to practise.’ It is not surprising that when faced with this advice, some practitioners are less confident to pass on potentially vital information.
So is the guidance helping? A year on and the answer seems to be positive. The guidance is being followed and, slowly but surely, most if not all agencies across the country are taking the open, but professional approach to information sharing between agencies that the government hoped to promote. The recently publicised endorsements should help forge closer multi-agency links and the passage of time and experience of relying on the guidance will give confidence to those unsure of their position.
Information sharing agreements
Would additional guidance or the creation of information sharing agreements (ISAs) or protocols (ISPs) iron out the remaining creases?
Further guidance would probably not solve the problem. The current guidance does not suffer from a lack of clarity, or ambiguity. There is not a feeling among practitioners that the guidance is difficult, cumbersome, or incomplete. What there is, is a different approach to the interpretation of the guidance among different agencies and to some extent in different locations across the country.
Recently some local authorities have questioned whether ISAs and ISPs are required to further assist frontline practitioners sharing information about a specific child. The view of the DfES is that ISAs are not the answer. The decision whether or not to share information about a child should always be based on professional judgment, supported by the guidance.
ISPs (generally at strategic level) and ISAs (generally at managerial and operational level) are about business processes, the law and understanding what other agencies are doing. ISAs are primarily about agreeing and establishing processes, roles and responsibilities, and are particularly relevant to the supply of data from one organisation to another by electronic means.
The key point here is that neither ISAs or ISPs are about practitioners sharing information on individual children who may have needs to be addressed. Therefore, the lack of an ISA between agencies should never be a reason for not sharing information that could help a practitioner deliver services to a child, and their creation is unlikely to foster better information sharing practices.
Has it stood the test of time?
One year will not have been the benchmark by which the government would have sought to measure the impact of the guidance, and rightly so. However, many positives can already be taken even though we are only 12 months down the line. The guidance was consulted upon, well received, positively viewed and most importantly, regularly and consistently applied.
Practitioners are starting to feel confident that the Data Protection Act 1998 will not trip them up, that the law of confidentiality is not unduly troublesome and that, perhaps for the first time, all practitioners who work with children are singing from the same hymn sheet in terms of information sharing. There’s still some distance to go before the multi-agency information sharing process is smooth and trouble free, but Information Sharing: Practitioners’ Guide has taken those who work with children down the right road.
The next 12 months and beyond will be the key period. The focus will fall sharply on multi-agency information sharing and this will be the true test of the guidance going forward and of the government’s attempts to promote a harmonised multi-agency children’s workforce.
Dai Durbridge is a solicitor with Browne Jacobson, specialising in child protection and education