Donna McEwan tackles the issue of information sharing and consent in the context of Parts 4&5 of the Children and Young People Act 2014 (CYPA), and why this presents a challenge for practitioners working with young people…
Since the Supreme Court Judgement, regarding the information sharing aspects of Parts 4&5 of the Children and Young People Act 2014 (CYPA), there seems to be a sense of limbo and questions as to what will happen next. The Scottish Government’s Information Sharing Bill has been an attempt to address the issues highlighted, but I fear this has not met its aim.
As I understand it, the Data Protection Act 1998 (DPA) and Human Rights Act 1998 (HRA) have not changed nor are they affected by the proposed implementation of the Children & Young People Act 2014 (CYPA). Adherence to this legislation is not optional and all sharing of information must be in accordance with this legislation. Simples?
Now, the reason my brain has been whirling like a Tasmanian devil is that I cannot connect how the proposed Information Sharing Bill addresses the issues raised by the Supreme Court Judgement and therefore supports implementation of Parts 4& 5 of the CYPA meeting the data sharing legislation. Let me take you through some of my thinking.
First consider the impact of sharing this information.
Wellbeing concerns do not meet the same threshold as Child Protection, so to share such concerns the requirements of the DPA Schedule 2 & 3 must be met for personal and sensitive personal data respectively. Therefore, you must be clear as to what type of information you are sharing and the appropriate criteria to be met. This is taking for granted that sharing a wellbeing concern will support, promote and safeguard a child’s wellbeing, as this is your first test as proposed by the Information Sharing Bill, which is then followed by assessing sharing this information against the legal criteria of the DPA and HRA. So, then, if you think you can satisfy the DPA, you then must consider and be clear that the sharing of this data/ information outweighs the likely impact on a child should you not share and thus justifies interfering with HRA Art 8 – the right to privacy for family life. Still following?
Then throw into the mix some issues around choice and consent…
How clearly is what is being shared, who with and why, explained to children and families? In addition, that they have a choice within this, for example in relation to the Named Person Service (NP) that involvement in NP is voluntary and they don’t need to engage with this support. My concern is that if children and their families choose not to engage with the NP service and thus do not wish for their information shared with the NP, this may result in up-tariffing children and families into systems because they are deemed non-engaging or resistant. Also, how is this choice as to whether a child and/ or family wishes for support from NP recorded, where is it recorded, for how long and what happens if consent is retracted?
There are different kinds of consent!
Then the biggie of consent, of which there are two types for purposes of the DPA as they relate to different types of data mentioned above. Personal data (Schedule 2 of DPA) is that from which an individual could be identified and is obviously about a specific individual. Therefore processing of this requires an individual to have consented to their personal data being collected and used in the manner and for the purposes in question. The Information Commissioner Office (ICO) states an individual must “signify” their agreement, which means there must be some active communication between the parties. An individual may “signify” agreement other than in writing, but organisations should not infer consent if an individual does not respond to a communication. The second type is sensitive personal data, which requires further criteria from Schedule 3 DPA as well as general criteria from Schedule 2 for personal data to be met, and requires explicit consent. The ICO states that this suggests that the individual’s consent should be absolutely clear. It should cover the specific processing details; the type of information (or even the specific information); the purposes of the processing; and any special aspects that may affect the individual, such as any disclosures that may be made. You still with me?
If consent or explicit consent is meaningfully sought and gained this would be a starting point to actually addressing some of the issues above. If the appropriate consent is sought and gained at the earliest possible stage based on children and families being clearly told what would be shared, why, with whom and possible outcomes, is this not best practice and more transparent and inclusive than sharing first and asking later? Perhaps the Scottish Government assumes this is already standard practice given that the data sharing legislation has not changed. How confident are we that we are fully complying with DPA in accordance with stipulations regarding seeking and gaining consent or explicit consent? I would query that if consent or explicit consent is gathered based on incorrect or incomplete information as to what, why and with whom it is being shared, this does not allow for informed consent.
Oh, and I nearly forgot the DPA view is that a child over 12 years may have the capacity to give consent to share information or not, based on an assessment of their age and developmental ability (and just for fun – who is making that assessment of capacity to consent?). Thus if a child, deemed to have capacity to consent, declined to have their information shared but the parents agree, then who trumps who? Keeping up?
As a trained social worker and fully recognise the limitations of my understanding in relation to the intricacies of data sharing legislation and the questions the proposed Bill presents. Reflecting on my then practice as a social worker and specifically in my previous role as an Early and Effective Intervention (EEI) Coordinator, I did not grasp the complexity of this legislation and have questioned my then compliance with it. I am not a legal professional, and I accept that my interpretation of the proposed Information Sharing Bill may be completely off the mark. However, it does raise the question (yes, another one) that most professionals being asked to make this judgement repeatedly on a daily basis will also not possess the legal knowledge or comprehensive understanding of the necessary legislation, yet are expected to make decisions that may violate individual and family rights.
So, I’m glad we got that straight. However, rather than stop all sharing of information and throwing the baby out with the bathwater, maybe we just need to start re-thinking consent and explicit consent, the significance of how we seek this and its significance for sharing wellbeing concerns. This is an opportunity to ensure more transparency to processes such as EEI and placing children’s and families contributions and views at the centre of getting it right for every child! Continuing to provide a proportionate and appropriate response at the right time, by the right people. Oh yeah – that would be GIRFEC.
About our blogger
Donna McEwan is a Practice Development Advisor with CYCJ. Find out more.