If you work with children or vulnerable adults, there are difficult decisions regarding when to disclose sensitive information. Chris Webb-Jenkins examines the impact of the Safeguarding Vulnerable Groups Act 2006 on this issue
In autumn 2008, we should have a new vetting and barring scheme for people working with children and vulnerable adults. The Safeguarding Vulnerable Groups Act 2006 paved the way for the new scheme. Previously in Education Law Update we have explored the scheme in detail (see article Safeguarding Vulnerable Groups Act 2006: how it will affect your school). Here we will review information sharing in the light of the new provisions.
|The new provisions
The scheme will have one list of people who are barred from working with children, and another list of people who are barred from working with vulnerable adults. A new non-governmental organisation, the Independent Safeguarding Authority (ISA), will decide whether to clear people on initial application, and will then monitor them.
If, at any time, information is passed to the ISA that makes it decide that and individual poses a risk to children or vulnerable adults, the ISA will bar him or her.
Heart of the scheme
Information sharing is at the heart of the scheme. For example:
- On initial application for clearance, the police will pass information about the individual to the independent safeguarding authority.
- Employers, and various other bodies such as local authorities and professional organisations (such as the General Teaching Council), are under a continuing duty to pass to the ISA information about people working with children and vulnerable adults.
- Once the ISA makes a barring decision, this needs to be communicated to the individual concerned — and to his or her employer if the initial application for clearance was made jointly by the employer and the individual.
The risks associated with such information sharing are clear. First, the information is likely to be very sensitive and personal. Second, the size of the new scheme is mind-boggling. It is estimated that nationally 10 million people work with children or vulnerable adults in such a way as to be caught by the new scheme. The scheme will be much broader that the previous lists (such as List 99, or the POCA list), and many more people will be subject to mandatory police checks.
Large-scale data loss by government departments has attracted a lot of media attention recently, but many of the incidents happened months or even years ago. The risk of data loss is not new but concern fuelled by recent media coverage has led to the postponement of ContactPoint, the new national database for all children.
The Government's decision not to publish a report by Deloitte & Touche on information security has heightened concerns, rather than allayed them, and some argue that ContactPoint should be scrapped.
It is obvious, however, that the new vetting and barring scheme will not work without this information being stored and shared. The law on information sharing does not need
to change to allow this. The law allows information to be shared if the purpose served by the disclosure is sufficiently compelling. The proper regulation of people who work with children and vulnerable adults will be such a purpose.
Six practical steps This focus on purpose is clear from guidance that was published in 2006 — Information Sharing: Practitioner's Guide. This remains the latest guidance available. It was particularly welcome because it distilled a complex legal landscape into six practical steps.
The complexity comes from having the following different areas of law, all of which apply in some way to information sharing:
- the law of confidentiality
- the Data Protection Act 1998
- the Human Rights Act 1998
- the Freedom of Information Act 2000
|Six key points 1. Explain to children and their families at the outset, openly and honestly, what and how information will, or could be shared and why. Seek their agreement — unless to do so would place the child or others at increased risk of harm, or would interfere with the investigation of a serious crime. 2. When deciding whether to share information about a child, if there is concern that the child is exposed to a risk of serious harm, the child’s safety must be the overriding consideration. 3. If possible, you should respect the wishes of children or their families if they ask for information not to be shared. You need not respect this wish, however, if you think that the need to share the information is sufficient to override lack of consent. 4. When in doubt, seek advice — especially if you think that significant harm to a child, or serious harm to others, is a possibility. 5. Ensure that the information you share is: accurate and up-to-date; necessary for the purpose for which you are sharing it; shared only with those people who need to see it; and shared securely. 6. Always record the reasons for your decision — whether you decide to share or not to share.
As you can see, if your purpose is to protect children who, in your professional judgment, are at risk, then your decision to disclose or withhold information will be lawful.
Which information We do not know yet with certainty which information schools will need to pass to the independent safeguarding authority. The Government went out to consultation on how the scheme would work, and the guidance that will come from that consultation should cover this issue.
It is likely that the situation will be similar to the position now, where schools are meant to report to the misconduct team at the DCSF incidents that:
- have caused them to dismiss a member of staff for inappropriate behaviour, or
- would have led to this had the individual not resigned beforehand.
Robust procedure The key for schools is to have robust procedures for the investigation of allegations against staff. In the most serious cases, the staff member can be dismissed summarily. In other cases you will need to have a disciplinary hearing. Either way, the school needs to gather reliable evidence, and then reach a reasonable decision on the way forward based on that evidence. If the school does this, then an individual can raise no valid complaint about the disclosure of this information to the DCSF (or from the autumn onwards, the independent safeguarding authority).
There are, however, circumstances related to vetting and barring where the information-sharing decision is more difficult:
If an allegation is made against a member of staff, what should you tell:
- the child?
- the child's family?
- the other pupils at the school, and their parents?
- other staff?
- the individual member of staff?
If the ISA tells you that a member of staff has been barred, you will need to end his or her work with children or vulnerable adults immediately.
In most cases this will lead to dismissal, often summary. What do you tell:
- pupils and their families?
- other members of staff?
These decisions can be for very high stakes. In a recent case in Wales, a teacher was suspended without being told why. He assumed this was due to an allegation of sexual misconduct — in fact it was due to concerns of financial impropriety. Three days into his suspension he committed suicide. At the inquest the coroner was very critical of the local authority's decision not to explain the suspension. He could see no justification for not sharing the information.
Reason to withhold
The information commissioner has repeatedly said that the law relating to information is misunderstood, and seen to be a bigger barrier to disclosure than it truly is. Withholding is not the 'default' position. Information should be withheld only where there is a specific reason to do so. Such decisions will always turn on the facts of the situation. What is the level of risk of harm to a child? How will that be affected by the disclosure under consideration? What other purposes are served by the disclosure?
Agencies working together
Problems over information sharing sometimes emerge when different organisations are working together on a particular case (for example, a local authority and a primary care trust). The key assessment of the level of risk of harm to a child, and how disclosure of information will affect that level of risk, is not a black and white issue; it is a judgment call. Different agencies can have different cultures, which can lead to different decisions.
In recognition of this problem, organisations in many areas have collaborated to produce information sharing agreements (rather unhelpfully also referred to as ISAs.) These agreements are not a panacea. Where they work best is in promoting a common understanding of the general principles, and establishing procedures to help key individuals in the different agencies to contact each other. What they cannot do is extend beyond the general. They cannot provide answers to specific disclosure issues, as the precise circumstances cannot be anticipated. For this reason, the DfES (as it then was) made it clear that frontline practitioners, such as teachers, did not need to refer to an information sharing agreement when making their disclosure decisions.
Other legal rights?
As has been stated above, concerns over the welfare of a child are the paramount consideration. Where these exist, they prevail over other legal rights. However where there are no such concerns, decision-makers must respect other legal rights. Two recent court decisions are worth a mention.
|Case 1: duty owed to dead? The first case challenged the long-held view that no duty of confidence is owed to the dead. The mother of the dead woman asked a hospital to disclose the dead woman’s records under the Freedom of Information Act. The widower, who was also the dead woman’s personal representative, objected, saying the documents were confidential. The court agreed with the widower. It was concerned that the doctor-patient relationship might be undermined if a patient believed her records would be released to the public after her death. The court also looked at the purpose of the disclosure, and decided that the public interest
in maintaining confidentiality was much stronger than the countervailing public interest in disclosure.
Case 2: right to privacy
The second case was brought by author JK Rowling against a photographer who had taken a picture of her and her husband pushing their 18-month-old son in a buggy along the street. JK Rowling asserted a right to privacy. No doubt she was buoyed by a recent successful claim by Princess Caroline of Monaco against a paparazzi photographer who had taken similarly anodyne photographs of the Princess shopping, and eating in a restaurant. JK Rowling lost. The judge said that she was attempting to 'carve out a press-free zone' around her family, and the law did not permit that. Routine activity when conducted in a public place carries no guarantee of privacy. The court made it clear, however, that, in less routine circumstances, taking photographs of people in public places would be unlawful.
Key issues here were the fact that the scene recorded in the photograph was innocuous. There was nothing humiliating or degrading about the picture, and it did not show any sensitive or intimate activity.
There was also no evidence that JK Rowling's son had been harassed — it was simply that JK Rowling wished her children to be kept out of the public eye.
The Rowling decision supports schools that install CCTV cameras (where appropriate), and that take photographs for use in prospectuses or on a website. While there are obligations under the Data Protection Act to let the parents and children know about the photos and their intended use, children and their parents cannot claim that their right to privacy has been breached.
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Chris Webb-Jenkins is a partner in Browne Jacobson's education and social care team