Data and Information Sharing Protocol and Agreement for Agencies Working with Children and Young People

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1 Data and Information Sharing Protocol and Agreement for Agencies Working with Children and Young People to March 2014 Growing the right way for a bigger, better Peterborough

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3 Contents Executive Summary: Purpose of Protocol and Agreement Introduction: Information sharing within Peterborough s services for children, young people and families 6 5 PART 1: Principles of Information Sharing 7 Key Principles for Information Sharing 7 Six Key Points on Information Sharing 8 Confidentiality 8 Sharing information as part of preventative services 9 Consent 10 PART 2: Legal Context of Information Sharing 13 The Human Rights Act 1998 and the European Convention of Human Rights 13 Common law duty of confidentiality 14 Data Protection Act The Children Act The Children Act Education Act Education Act Learning and Skills Act Education (SEN) Regulations Children (Leaving Care) Act Protection of Children Act Immigration and Asylum Act Local Government Act Criminal Justice Act Crime and Disorder Act National Health Service Act Health Act The Adoption and Children Act

4 PART 3: Information Sharing Agreement 21 Partners 21 Implementing the Agreement 21 Purpose of this information sharing agreement 22 Relevant legislation 22 The type and extent of information to be shared 23 Data Sharing Categories 23 Data Quality 24 Designated Officer 24 Disclosures and Transfer of Information 24 Data retention, review and disposal 25 Appropriate Security 26 Complaints and breaches 26 Indemnity 26 Subject Access Requests 27 General operational guidance 27 Review Arrangements 28 Closure/termination of agreement 28 Signatories to this Agreement 29 APPENDICES: 30 Appendix 1: Consent and Fraser Competence Guidelines 30 Appendix 1.1 Express Statutory Powers to Share Information 31 Appendix General Functions, Powers & Duties (Implied Statutory Powers) 43 Appendix 2: Caldicott Principles 47 Appendix 3: Supplement to Part 2 - Legal Duties and Powers to Share 48 References 49 More information 49 4

5 Executive Summary: Purpose of Protocol and Agreement Peterborough Children s Trust Data and Information Sharing Agencies supplying services to children, young people and their families resident within Peterborough, are continually processing information about them. It is often necessary for agencies to share information so that children and young people can receive the services they need. Sometimes, it is only when information held by different agencies is put together that a child or young person is seen to be in need of additional or alternative services. Clarity about when and what information can be shared is fundamental to the implementation of the Common Assessment Framework, safeguarding arrangements and the integration of children s services. This Protocol and Agreement sets out to provide all organisations with this clarity through a commonly understood set of principles and responsibilities: Part 1 sets out the principles underlying and informing decision making about information sharing, in particular the complexities relating to confidentiality of, and consent to share children, young people s and families information. Part 2 provides information on the legal framework for information sharing between agencies working with children, young people, their families and parents/carers in Peterborough. Part 3 lays out the details of the Agreement between, and responsibilities of agencies signing up to it and provides an agreed basis for sharing information between these agencies in Peterborough. The Agreement forms an integral part of the overarching Information Management Policy and Strategy agreed by the Greater Peterborough Partnership which aims to facilitate sharing of information between the public, private and voluntary sectors. 5

6 Introduction: Information sharing within Peterborough s services for children, young people and families Lots of organisations some big, some very small work with children and young people in Peterborough. To bring about long-lasting change, we know we have to work together our plan helps us to do this by setting out an agreed way forward Our vision for Peterborough is simple: to create an environment where children and young people are safe and healthy, can enjoy what life has to offer and have ambition and aspirations, where they achieve their goals and make a positive contribution for themselves, their family and their community. In order to achieve this vision, we have to do a number of things. We need to make sure that children, young people and their families are at the centre of the work we do and that we deliver services in the way that they need and want them. This requires that some of our services join up to work more effectively and become more accessible. Our vision is for all children and young people and we need to make sure that those who aren t doing so well are supported to achieve their potential. We need to work together to make sure that the most vulnerable are kept safe and that we tackle problems early so that they don t become more serious. Sharing information is vital for early intervention to ensure that children and young people with additional needs get the services they require. It is also essential to protect children and young people from suffering harm from abuse or neglect and to prevent them from offending. The enquiry into the death of Victoria Climbé highlighted significant shortfalls in the practice and process of sharing information between agencies. It recommended that systems were put in place in every local authority area to ensure that information about children and young people can be shared appropriately within and between agencies and that it is more easily transferred across local authority boundaries. This Information Sharing Protocol & Agreement is a key element in ensuring we work more effectively together to meet our vision. It provides a framework for agencies to share information about children and young people who are receiving services or for whom they have a concern. The Information Sharing Protocol and Agreement sets out the principles for sharing information and give the legal context in which we share information. Some partners to this agreement already have internal information sharing principles, policies and protocols planned or in place. We see these as complimentary and believe that the expertise and experience our partners offer will strengthen effective implementation of this Protocol and Agreement. Together we will contribute to improved assessments of children and young people s needs and better sharing of information across agencies - contributing to improving the protection, opportunities and life chances of children and young people living in our city. 6

7 PART 1: Principles underlying Decision Making about Information Sharing Key Principles for Information Sharing The Key Principles for Information Sharing are: Safeguarding and promoting the welfare of a child or young person is the prime consideration in all decision making about information sharing. Professionals can only work together to effectively safeguard and promote the welfare of children if there is an exchange of relevant information between them. Every proposal to share service user identifiable information between organisations must have a defined and justifiable purpose. Any service user s identifiable information must be accurate and objective and the minimum information required for the stated purpose. All suppliers of information, whether employees, contractors or agents of partner organisations must only supply sufficient information which is relevant and necessary to achieve the purpose of the request. Access to a service user s identifiable information will be restricted on a need to know basis. Where a child has a need for services from a number of agencies, ongoing appropriate information sharing is likely to be needed between these agencies. Article 8 of the European Convention on Human Rights gives everyone the right to respect for family life, home and correspondence. Authorities can only interfere with this if they are acting lawfully, are pursuing a legitimate aim (including protection of health and the rights of others) and the action is no more than is needed. Sometimes this may mean a worker has to balance one individual s rights against another s (e.g. a child s rights against the parents) or the different rights of the one individual (e.g. a young person s right to privacy against their right to protection). It is important to work in partnership with children, young people and families, especially people with parental responsibility, whenever possible. Information belongs to the child, young person, or adult to which it refers, and should generally be kept confidential. Individuals should generally be kept aware of what is happening to their information and have the right of access to it. Unless the professional has a duty to share the information, it is good practice to obtain an individual s consent, subject to his or her age and understanding, wherever possible, except where this would put someone at risk of harm or prejudice a police investigation into a serious offence, or lead to unjustifiable delay in protecting a child. Where consent has not been sought or refusal to give consent has been overruled, the individual should be kept informed where possible, unless this would place someone at risk of harm or prejudice a police investigation into a serious offence. (For guidance on sharing data about large numbers of service users between agencies, please see Data Sharing Categories section in Part 3) People working with children need to take professional decisions based on understanding of the guidance, and the particular situation, and record their decisions about and reasons for sharing specific information. 7

8 Good information sharing is based on good information keeping. Records should be accurate, relevant, kept up to date, and kept for no longer than is necessary for their purpose. An audit trail of requests made and disclosures given will provide a record of events if required in the case of investigations or local inspections Six Key Points on Information Sharing 1. You must explain to children, young people and families at the onset, openly and honestly, what and how information will, or could be shared and why, and seek their agreement. The exception to this is where to do so would put that child, young person or others at risk of significant harm or an adult at risk of significant 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. 2. You must always consider the safety and welfare of a child or young person when making decisions on whether to share information about them. Where there is concern that the child may be suffering or is at risk of suffering significant harm, the child s safety and welfare must be the overriding consideration. 3. You should, where possible, respect the wishes of children, young people or families who do not consent to share confidential information. You may still share information if, in your judgement based on the facts of the case, there is sufficient need to override that lack of consent. 4. You should seek advice where you are in doubt, especially where your doubt relates to a concern about possible significant harm to a child or serious harm to others. 5. You should ensure that the information you share is relevant, 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. You should always record the reasons for the decision, whether it is to share information or not. Confidentiality (see also Part 3: Agreement, Data sharing categories) In deciding whether there is a need to share information you will have to consider your legal obligations including: a) Whether the information is confidential b) If it is confidential, whether there is sufficient public interest to justify sharing. Not all information is confidential. Confidential information is information of some sensitivity, which is not already lawfully in the public domain or readily available from another public source, and which has been shared in a relationship where the person giving the information understood that it would not be shared with others e.g. a teacher may know that one of her pupils has a parent who misuses drugs. That is information of some sensitivity, but may not be confidential if it is widely known or it has been shared with the teacher in circumstances where the person understood it would be shared with others. If however it is shared with the teacher by the pupil in a counselling session for example, it would be confidential. 8

9 Confidentiality is only breached where the sharing of confidential information is not authorised by the person who provided it or to whom it relates. If the information was provided on the understanding that it would be shared with a limited range of people or for limited purposes, then sharing in accordance with that understanding will not be in breach of confidence. Similarly, there will not be a breach of confidence where there is explicit consent to the sharing. Where sharing of confidential information is not authorised, you may lawfully share it if this can be justified in the public interest. Seeking consent should be the first option, if appropriate. Where consent cannot be obtained to the sharing of the information or is refused, or where seeking it is likely to undermine the prevention, detection or prosecution of a crime, the question of whether there is sufficient public interest must be judged by the practitioner on the facts of each case. Therefore, where you have a concern about a child or young person, you should not regard refusal of consent as necessarily precluding the sharing of confidential information. A public interest can arise in a wide range of circumstances, for example, to protect children or other people from harm, to promote the welfare of children or to prevent crime and disorder. The key factor in deciding whether or not to share confidential information is proportionality, i.e. whether the proposed sharing is a proportionate response to the need to protect the public interest in question. In making the decision you must weigh up what might happen if the information is shared against what might happen if it is not, to make a decision based on a reasonable judgement. In cases where it is not reasonably practical to obtain consent (e.g. if someone is ill or lacks capacity) a risk assessment and proportionality test should be conducted between the individual s right to confidentiality and the need for reasonable intrusion. It is not possible to give guidance to cover every circumstance in which sharing of confidential information without consent will be justified. Practitioners must make a judgement on the facts of the individual case. Where there is a clear risk of significant harm to a child, or serious harm to adults, the public interest test will almost certainly be satisfied. However, there will be other cases where practitioners will be justified in sharing some confidential information in order to make decisions on sharing further information or taking action - the information shared in these cases should be appropriate. There are some circumstances in which sharing confidential information without consent will normally be justified in the public interest. These are: where there is evidence that a child may be suffering or at risk of significant harm where there is reasonable cause to believe that a child may be suffering or at risk of significant harm to prevent significant harm arising to children and young people or serious harm to adults, including through the prevention, detection and prosecution of serious crime. (For these purposes, serious crime means any crime which causes or is likely to cause significant harm to a child or young person or serious harm to an adult.) Sharing information as part of preventative services There is an increasing emphasis on integrated working across children s services so that support for children, young people and families is provided in response to their needs. The aim is to deliver more effective intervention at an earlier stage to prevent problems escalating and to increase the chances of a child or young person achieving positive outcomes. Whether the integrated working is across existing services or through specific multi-agency structures e.g. based in the Locality Teams, success depends on effective partnership 9

10 working between universal services (such as education and primary health care) and targeted and specialist services for those children, young people and families at risk of poor outcomes. Preventative services working in this way will be more effective in identifying concerns about significant harm, for example, as a result of abuse or neglect. However, in most situations children, young people and family members will require additional services in relation to education, health, behaviour, parenting or family support, rather than intervention to protect the child or young person from harm or to prevent or detect serious crime. Effective preventative services of this type will usually require active processes for identifying children and young people at risk of poor outcomes, and passing information to those delivering targeted support. Practitioners sometimes express concern about how this can be done lawfully. Seeking consent should be the first option. Practitioners in universal, targeted and specialist services, including multi-agency services, should proactively inform children, young people and families when they first engage with the service, about their service s policy on how information will be shared, and seek their consent. The approach to sharing information should be explained openly and honestly. Where this is done, young people and families will be aware how their information may be shared in these circumstances most will give consent. Information which is not confidential may generally be shared where that is necessary for the legitimate purposes of preventative work. Where information is confidential, however, and consent is refused, that should be respected, unless in the practitioner s professional judgement on the facts of the case, the public interest justifies the sharing of information. See bullet points above for guidance on cases where practitioners are justified in sharing confidential information without consent in order to make decisions on whether to share further information or take action. Consent What constitutes consent? Consent must be informed this means that the person giving consent needs to understand why information needs to be shared, who will see their information, the purpose to which it will be put and the implications of sharing that information. Consent can be explicit or implicit. Obtaining explicit consent is good practice and it can be expressed either orally or in writing, although written consent is preferable since that reduces the scope for subsequent dispute. Implicit consent can also be valid in many circumstances. Consent can legitimately be implied if the context is such that information sharing is intrinsic to the activity, and especially if that has been explained at the outset, for example when conducting a common assessment. A further example is where a GP refers a patient to a hospital specialist and the patient agrees to the referral; in this situation the GP can assume the patient has given implied consent to share information with the hospital specialist. The approach to securing consent should be transparent and respect the individual. For example, it is good practice to set out clearly your agency s policy on sharing information to children, young people and families, when they first access the service. Consent should not be secured through coercion, or inferred from a lack of response to a request for consent. If there is a significant change in the use to which the information will be put to that which has previously been explained, or in the relationship between the agency and the individual, consent should be sought again. Individuals have the right to withdraw consent after they have given it, although in practice this is rarely exercised. 10

11 Whose consent should be sought? You may also need to consider whose consent should be sought. Where there is a duty of confidence it is owed to a person who has provided the information on the understanding it is to be kept confidential and, in the case of medical or other records, the person to whom the information relates. A young person aged 16 or 17, or a child under 16 who has the capacity to understand and make their own decisions, i.e. deemed to be Fraser competent, may give (or refuse) consent to sharing. (see Appendix 1 for an explanation of the Fraser Competence). Young people aged 12 or over may generally be expected to have sufficient understanding. Younger children may also have sufficient understanding. When assessing a child or young person s understanding you should explain the issues in a way that is suitable for their age, language and likely understanding. Where applicable, you should use their preferred mode of communication. The following criteria should be considered in assessing whether a particular child on a particular occasion has sufficient understanding to consent, or refuse consent, to sharing of information about them: Can the child or young person understand the question being asked of them? Does the child or young person have a reasonable understanding of: - what information might be shared? - the main reason or reasons for sharing the information? - the implications of sharing that information, and of not sharing it? Can the child or young person: - appreciate and consider the alternative courses of action open to them? - weigh up one aspect of the situation against another? - express a clear personal view on the matter, as distinct from repeating what someone else thinks they should do? - be reasonably consistent in their view on the matter, or are they constantly changing their mind? In most cases, where a child or young person cannot consent or where you have judged that they are not competent to consent, a person with parental responsibility should be asked to consent on their behalf. Where parental consent is required, the consent of one such person is sufficient. In situations where family members are in conflict you will need to consider carefully whose consent should be sought. If the parents are separated, the consent of the resident parent would usually be sought. If you judge a child or young person to be competent to give consent, then their consent or refusal to consent is the one to consider even if a parent or carer disagrees. Consent issues can raise difficult dilemmas. You must always act in accordance with your professional code of practice and in the best interests of the child, even where that means overriding refusal to consent. 11

12 When not to seek consent? There will be some circumstances where you should not seek consent, for example where to do so would: place a child or young person at increased risk of significant harm; or place an adult at risk of serious harm; or prejudice the prevention or detection of a serious crime; or lead to unjustified delay in making enquiries about allegations of significant harm. 12

13 PART 2: Legal Context of Information Sharing Peterborough Children s Trust Data and Information Sharing There is no general statutory power to share information, just as there is no general power to obtain, hold or process data. The Data Protection Act governs the obtaining, holding and processing of personal information while some Acts of Parliament give public bodies express statutory powers to share information. These are often referred to as statutory gateways and are enacted to provide for the sharing of information for particular purposes. These gateways may be permissive or mandatory. An example of a permissive statutory gateway is section 115 of the Crime and Disorder Act 1998, this permits people to share information to help prevent or detect crime. An example of a mandatory statutory gateway is section 8 of the National Audit Act 1983, which imposes a legal obligation on public bodies to provide relevant information to the National Audit Office. Where there is no express statutory power to share information it may still be possible to imply such a power from the other duties and powers public bodies have. Many activities of statutory bodies will be carried out as a result of implied statutory powers, particularly as it may be difficult to expressly define all the numerous activities that a public body may carry out to deliver its main duties and powers. Having express or implied statutory powers in any particular case does not mean that the Human Rights Act 1998, the common law duty of confidentiality, and the Data Protection Act 1998 can be disregarded. Having a mandatory statutory gateway does however mean that confidential information can be shared without either consent or the public interest test needing to be applied, but this will be rare and generally in limited circumstances. This section describes the main terms and impact of: the Human Rights Act 1998; the common law duty of confidentiality; the Data Protection Act It also sets out the main pieces of legislation relevant to agencies and practitioners in children s services which either contain express or implied powers to share information. The Human Rights Act 1998 and the European Convention of Human Rights The European Convention on Human Rights has been interpreted to confer positive obligations on public authorities to take reasonable action within their powers (which would include information sharing) to safeguard the Convention rights of children. These rights include the right to life (Article 2), the right not to be subjected to torture or inhuman or degrading treatment (Article 3) and the right to liberty and security (Article 5). Article 8 of the European Convention on Human Rights was incorporated into UK law by the Human Rights Act 1998 and recognises a right to respect for private and family life: Article 8.1: Everyone has the right to respect for his private and family life, his home and his correspondence. Article 8.2: There shall be no interference by a public authority with exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, protection of health and morals or for the protection of rights and freedoms of others. 13

14 Sharing confidential information may be a breach of an individual s Article 8 right: the question is whether sharing information would be justified under Article 8.2 and proportionate. The right to a private life can be legitimately interfered with where it is in accordance with the law and, for example, is necessary for the prevention of crime or disorder, for public safety or for the protection of health or morals, or for the protection of the rights and freedoms of others. You need to consider the pressing social need and whether sharing the information is a proportionate response to this need and whether these considerations can override the individual s right to privacy. If a child or young person is at risk of significant harm, or sharing is necessary to prevent crime or disorder, breach of the child or young person s right would probably be justified under Article 8. Common law duty of confidentiality The common law duty of confidentiality requires that unless there is a statutory requirement to use information that has been provided in confidence, it should only be used for purposes that the subject has been informed about and consented to. In certain circumstances, this also applies to the deceased. The duty is not absolute and information can be shared without breaching the common law duty if: the information is not confidential in nature; or the person to whom the duty is owed has given explicit consent; or there is an overriding public interest in disclosure; or sharing is required by a court order or other legal obligation. Data Protection Act 1998 This Act deals with the processing of personal (i.e. sensitive and non-sensitive) data. Personal data is data which relates to a living person, including the expression of any opinion or any indication about the intentions in respect of the child or young person is considered personal data. Sensitive personal data is personal data relating to racial or ethnic origin, religious or other similar beliefs, physical or mental health or condition, sexual life, political opinions, membership of a trade union, the commission or alleged commission of any offence, any proceedings for any offence committed or alleged to have been committed, the disposal of proceedings or the sentence of any court in proceedings. Organisations which process personal data must comply with the data protection principles set out in schedule 1 of the Act. These require data to be: fairly and lawfully processed; able to meet a schedule 2 condition, and if sensitive personal data, a schedule 3 condition; processed for limited specified purposes; adequate, relevant and not excessive for those purposes; accurate and up to date; kept for no longer than necessary; processed in accordance with individuals rights; kept secure; not transferred to non-eea (European Economic Areas) without adequate protection. The Data Protection Act only stipulates that records should be kept no longer than is necessary for the purposes for which the records are being processed. 14

15 There are no actual timescales imposed. It is a matter for individual judgement, taking account of the nature and purpose of the records. It is advisable for all organisations to retain information on children and young people to agreed timescales. Six years is a commonly used benchmark and is generally compatible with limitation periods for the commencement of legal proceedings. (Though it should be noted that the Children Act 2004 Information Databases Regulations 2007, paragraph 7 makes provision for the retention of information longer than six years in cases where it may be required for section 47 of the Children Act 1989 (duty to investigate) or functions of the LSCB relating to serious case reviews or child deaths.) If the information enables a person to be identified, then a Schedule 2 condition should be met. These are: subject has given consent to share information; sharing information is necessary to protect the person s vital interests; or to comply with a Court Order; or to fulfil a legal duty; or to perform a statutory function; or to perform a public function in the public interest; or sharing is necessary for the legitimate interests of the data controller, or of the third party or parties to whom the data is disclosed, unless the rights or interests of the data subject preclude sharing. When information is sensitive then a schedule 3 condition must be met. These are: individual has given explicit consent to share information sharing information is necessary to establish, exercise or defend legal rights; or is necessary for the purpose of, or in connection with any legal proceedings; or to protect someone s vital interests and the person to whom the information relates cannot consent, is unreasonably withholding consent, or consent cannot reasonably be obtained; or to perform a statutory function; or it is in the substantial public interest and necessary to prevent or detect a crime and consent would prejudice that purpose; or processing is necessary for medical purposes and is undertaken by a health professional. Page 13 of the HM Government Information Sharing: Guidance for practitioners and managers contains a flowchart illustrating the decision-making process for testing compliance with the Act. See also Appendix 1 for explanation of the Fraser Competence and Appendix 2 for explanation of the Caldicott Principles. Specific legislation containing express powers or which imply powers to share information (see also Supplement to Part 2 at Appendix 3) The Children Act 1989 Sections 17 and 47 of the Children Act 1989 place a duty on local authorities to provide services for children in need and make enquiries about any child in their area who they have reason to believe may be at risk of significant harm. Sections 17 and 47 also enable the local authority to request help from other local authorities, education and housing authorities and NHS bodies and places an obligation on these authorities to co-operate. You may be approached by Children s Services and asked to: 15

16 provide information about a child, young person or their family where there are concerns about a child s well-being, or to contribute to an assessment under section 17 or a child protection enquiry; undertake specific types of assessments as part of a core assessment or to provide a service for a child in need; provide a report and attend a child protection case conference. The Act does not require information to be shared in breach of confidence, but an authority should not refuse a request without considering the relative risks of sharing information, if necessary without consent, against the potential risk to a child if information is not shared. Section 27 says that the local authority, for assistance in the exercise of its statutory functions (which include the provision of services for children in need and the sharing of information for these purposes) request the help of: any local authority; any local education authority (LEA); any health authority; any person authorised by the Secretary of State. The Children Act 2004 Section 10 of the Act places a duty on each children s services authority to make arrangements to promote co-operation between itself and relevant partner agencies to improve the well-being of children and young people from pre-birth to 19 years (25 in case of those with disabilities) in their area in relation to the five key outcomes: Being Healthy - physical and mental health, and emotional well-being Staying Safe - protection from harm and neglect Enjoying and Achieving - education, training and recreation Making a Positive Contribution Achieving Economic Well-Being The relevant partners must cooperate with the local authority to make arrangements to improve children s wellbeing. The relevant partners are: district councils the police the Probation Service youth offending teams (YOTs) strategic health authorities and primary care trusts Connexions This statutory guidance for section 10 states that good information sharing is key to successful collaborative working and that arrangements under section 10 of the Act should ensure that information is shared for strategic planning purposes and to support effective service delivery. It also states that these arrangements should cover issues such as improving the understanding of the legal framework and developing better information sharing practice between and within organisations. Section 11 of the Act places a duty on key people and bodies to make arrangements to ensure that their functions are discharged with regard to the need to safeguard and promote the welfare of children. The key people and bodies are: 16

17 local authorities (including district councils) the police the Probation Service bodies within the National Health Service (NHS) Connexions Youth Offending Teams governors/directors of prisons and young offender institutions directors of secure training centres the British Transport Police The section 11 duty does not give agencies any new functions, nor does it override their existing functions, it simply requires them to: carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children; ensure that the services they contract out to others are provided having regard to that need. In order to safeguard and promote the welfare of children, arrangements should ensure that: all staff in contact with children understand what to do and the most effective ways of sharing information if they believe a child and family may require targeted or specialist services in order to achieve their optimal outcomes; all staff in contact with children understand what to do and when to share information if they believe that a child may be in need, including those children suffering or at risk of significant harm. Education Act 2002 The section 11 duty of the Children Act 2004 mirrors the duty placed by section 175 of the Education Act 2002 on LAs and the governing bodies of both maintained schools and further education institutions to make arrangements to carry out their functions with a view to safeguarding and promoting the welfare of children and follow the guidance in Safeguarding Children in Education (DfES 2004). The guidance applies to proprietors of independent schools by virtue of section 157 of the Education Act 2002 and the Education (Independent Schools Standards) Regulations Education Act 1996 Section 13 of the Education Act 1996 provides that an LA shall (so far as their powers enable them to do so) contribute towards the spiritual, moral, mental and physical development of the community, by securing that efficient primary and secondary education is available to meet the needs of the population of the area. Details of the number of children in the local authority s area and an analysis of their needs is required in order to fulfil this duty so there may be an implied power to collect and use information for this purpose. Section 434 (4) of the Act requires LAs to request schools to provide details of children registered at a school. Learning and Skills Act 2000 Section 117 provides for help to a young person to enable them to take part in further education and training. Section 119 enables Connexions services to share information with the Benefits Agency and Jobcentre Plus to support young people to obtain appropriate benefits under the Social Security Contributions and Benefits Act 1992 and Social Security Administration Act

18 Education (SEN) Regulations 2001 Regulation 6 provides that when the LEA are considering making an assessment of a child s special educational needs, they are obliged to send copies of the notice to social services, health authorities and the head teacher of the school (if any) asking for relevant information. Regulation 18 provides that all schools must provide Connexions Services with information regarding all Year 10 children who have a statement of special educational needs. Children (Leaving Care) Act 2000 The main purpose of the Act is to help young people who have been looked after by a local authority move from care into living independently in as stable a fashion as possible. To do this it amends the Children Act 1989 (c.41) to place a duty on local authorities to assess and meet need. The responsible local authority is to be under a duty to assess and meet the care and support needs of eligible and relevant children and young people and to assist former relevant children, in particular in respect of their employment, education and training. Sharing information with other agencies will enable the local authority to fulfil the statutory duty to provide after care services to young people leaving public care. Protection of Children Act 1999 The Act creates a system for identifying persons considered to be unsuitable to work with children. It introduces a one stop shop to compel employers designated under the Act (and allows other employers) to access a single point for checking people they propose to employ in a child care position. This will be achieved by checks being made of criminal records with the National Criminal Records Bureau and two lists maintained by the Department for Children, Schools and Families. Immigration and Asylum Act 1999 Section 20 provides for a range of information sharing for the purposes of the Secretary of State: to undertake the administration of immigration controls to detect or prevent criminal offences under the Immigration Act; to undertake the provision of support for asylum seekers and their dependents. Local Government Act 2000 Part 1 of the Local Government Act 2000 gives local authorities powers to take any steps which they consider are likely to promote the wellbeing of their area or the inhabitants of it. Section 2 gives local authorities a power to do anything which they consider is likely to achieve any one or more of the following objectives : the promotion or improvement of the economic wellbeing of their area; the promotion or improvement of the social wellbeing of their area; the promotion or improvement of the environmental wellbeing of their area. Section 2 (5) makes it clear that a local authority may do anything for the benefit of a person or an area outside their area, if the local authority considers that it is likely to achieve one of the objectives of Section 2(1). Section 3 is clear that local authorities are unable to do anything (including sharing information) for the purposes of the wellbeing of people including children and young people - where they are restricted or prevented from doing so in the face of any relevant legislation, for example, the Human Rights Act and the Data Protection Act or by the common law duty of confidentiality. 18

19 Criminal Justice Act 2003 Section 325 of this Act details the arrangements for assessing risk posed by different offenders: The responsible authority in relation to any area, means the chief officer of police, the local probation board and the Minister of the Crown exercising functions in relation to prisons, acting jointly. The responsible authority must establish arrangements for the purpose of assessing and managing the risks posed in that area by: a. relevant sexual and violent offenders; and b. other persons who, by reason of offences committed by them are considered by the responsible authority to be persons who may cause serious harm to the public (this includes children) In establishing those arrangements, the responsible authority must act in co-operation with the persons identified below. Co-operation may include the exchange of information. The following agencies have a duty to co-operate with these arrangements: a. every youth offending team established for an area b. the Ministers of the Crown, exercising functions in relation to social security, child support, war pensions, employment and training c. every local education authority d. every local housing authority or children s services authority e. every registered social landlord which provides or manages residential accommodation f. every health authority or strategic health authority g. every primary care trust or local health board h. every NHS trust i. every person who is designated by the Secretary of State as a provider of electronic monitoring services. Crime and Disorder Act 1998 Section 17 applies to a local authority (as defined by the Local Government Act 1972); a joint authority; a police authority; a national park authority; and the Broads Authority. As amended by the Greater London Authority Act 1999 it applies to the London Fire and Emergency Planning Authority from July 2000 and to all fire and rescue authorities with effect from April 2003, by virtue of an amendment in the Police Reform Act It recognises that these key authorities have responsibility for the provision of a wide and varied range of services to and within the community. In carrying out these functions, section 17 places a duty on them to do all they can to reasonably prevent crime and disorder in their area. The purpose of this section is simple: the level of crime and its impact is influenced by the decisions and activities taken in the day to day business of local bodies and organisations. Section 17 is aimed at giving the vital work of crime and disorder reduction a focus across a wide range of local services that influence and impact upon community safety and putting it at the heart of local decision making. Section 17 is a key consideration for these agencies in their work in crime and disorder reduction partnerships, drug action teams, Youth Offending Teams, children s trusts and local safeguarding children boards. 19

20 Section 37 sets out that the principal aim of the youth justice system is to prevent offending by children and young people and requires everyone carrying out youth justice functions to have regard to that aim. Section 39(5) sets out the statutory membership of YOTs reflecting their responsibilities both as a criminal justice agency and a children s service. The membership consists of the following: at least one probation officer; at least one police officer; at least one person nominated by a health authority; at least one person with experience in education; at least one person with experience of social work in relation to children. Youth Offending Teams have a statutory duty to coordinate the provision of youth justice services including advising courts, supervising community interventions and sentences, and working with secure establishments in respect of young people serving custodial sentences and also in the latter category of a children s service. As Youth Offending Teams are multi-agency teams, members will also need to be aware of the need to safeguard and promote the welfare of children that relates to their constituent agency. Section 115 provides any person with a power but not an obligation to disclose information to responsible public bodies (e.g. police, local and health authorities) and with cooperating bodies (e.g. domestic violence support groups, victim support groups) participating in the formulation and implementation of the local crime and disorder strategy. The police have an important and general common law power to share information to prevent, detect and reduce crime. However, some other public organisations that collect information may not have had the power previously to share it with the police and others. Section 115 clearly sets out the power of any organisation to share information with the police authorities, local authority (including parish and community councils), Probation Service and health authority (or anyone acting on their behalf) for the purposes of the Act. This ensures that information may be shared for a range of purposes covered by the Act, for example for the functions of the crime and disorder reduction partnerships and Youth Offending Teams, the compilation of reports on parenting orders, anti-social behaviour orders, sex offender orders and drug testing orders. National Health Service Act 1977 The Act provides for a comprehensive health service to England and Wales to improve the physical and mental health of the population and to prevent, diagnose and treat illness. Section 2 provides for sharing information with other NHS professionals and practitioners from other agencies carrying out health service functions that would otherwise be carried out by the NHS. Health Act 1999 Section 27 of the Health Act replaces section 22 of the NHS Act Section 27 states that NHS bodies and local authorities shall cooperate with one another (this allows for practitioners to share information) in order to secure the health and welfare of people. The Adoption and Children Act 2002 For further information about the Adoption and Children Act 2002 and Regulations see 20

21 PART 3: Information Sharing Agreement Partners to this Agreement This Information Sharing Agreement has been agreed by all members of Peterborough s Children s Trust Partnership Board. Implementing the Agreement It will be the responsibility of these organisations to make sure that they: have realistic expectations from the outset; maintain ethical standards; have a process by which the flow of information can be controlled; provide appropriate training; have adequate arrangements to test compliance with the agreement; meet Data Protection and other relevant legislative requirements. The Agreement will be implemented by these organisations through their induction process, training and supervision of staff. Each agency will be responsible for ensuring that staff are informed of the relevance and importance of the Agreement and ensure staff have access to it. It can be accessed online at 21

22 Purpose of this information sharing agreement Peterborough Children s Trust Data and Information Sharing The aim of this agreement is to facilitate the lawful exchange of personal and sensitive data in any form, within and between organisations for notified and defined purposes, respecting the rights of individuals set out in legal acts and common law. When the records of deceased people are required by their relatives or other parties, ethical and confidentiality issues will be safeguarded in the same way as if the person was living. The public expects and the Data Protection Act 1998 requires that personal information held by statutory agencies will be properly protected. However, there is also a public expectation that there will be an appropriate sharing of information in working in partnerships for specific pieces of work with statutory obligations. The purpose of sharing information between partner organisations is to: Ensure the provision of appropriate services for children and young people in need or at risk or likely to be at risk of suffering significant harm: sections 17 (10) and 47 (1) of the Children Act or who otherwise are considered to be at risk of social or educational exclusion Obtain the assistance for the local authority from other local authorities, in order for the local authority to perform its functions of providing services to children, young people and families under Part 111, Section 27, Children s Act Promote or improve the economic, social or environmental well being of children, young people and families in need within Peterborough. This will include the provision of improvements to health and/or educational opportunity as well as the reduction or elimination of risk factors for children and young people within the city. Prevent or reduce crime and identify and apprehend offenders or suspected offenders Section 115, Crime and Disorder Act Ensure that children and young people who are missing education or at risk of going missing from education, are identified and supported. Provide information to assist in the planning and development of services for children and young people. Provide information for statistical analysis. Relevant legislation Children Act 1989 (sections 17, 27 and 47) Local Government Act 2000 (section 2) Crime and Disorder Act (section 115) Data Protection Act By sharing information, partner organisations will be able to identify children and young people considered to be in need or at risk of social or educational exclusion at an early stage of concern and provide effective multi-agency intervention in order to promote their health and well-being. Nominated representatives from organisations which are signatories to this agreement will be engaging in regular, multi-agency discussions in order to secure services for identified children, young people and their families. 22