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

23 The type and extent of information to be shared Routine information sharing Peterborough Children s Trust Data and Information Sharing The information shared will be the minimum amount necessary; it will be relevant and only used for the purposes of this protocol. This is necessary to ensure compliance with the second and third principles of the Data Protection Act 1998: Principle 2: Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. Principle 3: Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. Anonymised information Whenever possible data should be anonymised. If large volumes of data is provided for Management Information (MI), research and/or planning by partner organisations, as a matter of courtesy the outcome of that research/planning should be provided to the organisation(s) supplying the data. Data Sharing Categories Aggregated/Statistical Information aggregate and management information to plan and monitor progress of the service. This information can be shared without client consent. De-Personalised/Anonymous Information Individual level information may be depersonalised/ anonymised by the removal of any client identifiable information (such as name, address, unique identifiers, etc) and therefore outside the ambit of the Data Protection Act 1998, then shared by organisations within the context of this protocol. This information can be shared without client consent. Personal Non Confidential/Non Sensitive Information Information needed to identify and maintain contact with all clients in order to provide an effective service, such as Name, Address and Date of Birth. This information may be shared with the Informed Consent of the client. Personal Confidential/Sensitive Information Information needed to provide comprehensive support to clients and can be subdivided into broad categories: Confidential This information deemed to be professionally sensitive, such as client characteristics (e.g. homeless, substance misuse, etc), assessment data or opinions. Sensitive This is information defined within the Data Protection Act 1998 as sensitive such as ethnicity, religious beliefs, criminal procedures or health related issues. Confidential and/or sensitive information cannot be shared unless the client has given their Explicit Consent. There is other overriding legislation and exceptional circumstances. 23

24 Data Quality Information held must be accurate and kept up to date. Steps must be taken to validate information, such as checking with the person who originally provided the information, if there is any doubt as to its accuracy. Sharing inaccurate information can lead to decisions being made on false information. Data owners will ensure they amend any incorrect details and inform partners of the correct information. Information discovered to be inaccurate, out-of-date or inadequate for the purpose should be notified to the Data Controller who will be responsible for correcting the data and notifying all other recipients of the information who must ensure the correction is made. Designated Officer In order to ensure compliance with the Data Protection Act, participants to this Agreement shall nominate a Designated Officer to whom all requests and from whom all disclosures of personal information will be made. Disclosure requests, disclosure decisions and the details of personal information that has been disclosed will be in writing and the designated officer will maintain a record. The identity of the data owner must also be recorded against the relevant data. No secondary use or other use may be made unless the consent of the disclosing party to that secondary use is sought and obtained. Information discovered to be inaccurate or inadequate for the purpose will be notified to the data owner who will be responsible for correcting the data. The data owner will then notify all other recipients of that data, who must ensure that the correction is applied. Decisions on disclosures reached at meetings must be minuted. The designated officer will ensure that appropriate security arrangements are in place within their respective organisations to prevent unauthorised access to and disclosure of personal data. A list of designated officers will assume responsibility for data protection, security and confidentiality issues and compliance with legislation within their respective organisations, will be made available to partner organisations as a matter of routine. Disclosures and Transfer of Information Where information is shared, disclosed or exchanged requests for information will be specific to the purpose, recorded and made on a need to know basis. When disclosing personal information, many of the data protection issues surrounding disclosure can be avoided if the consent of the individual concerned has been sought and obtained. The organisation that originally discloses personal information to another party to this Agreement always retains ownership of the data (the data owner), each organisation must therefore decide the propriety of any particular disclosure. The identity of the data owner must always be recorded against that data. A recipient of personal information must obtain the consent of the data owner before making a secondary disclosure to another party to this Agreement. For the purpose of this requirement, each council department will be treated as a separate organisation. 24

25 Partner organisations will have appropriate information systems and records about information transfers. These records should cover when information has been given, when it has been refused and what medium has been used, including paper, electronic and conversational. The records should also cover the disposal and amendment of information. Where information is exchanged on a case by case basis, it should be ensured that requests are specific and recorded. Disclosure of information should be authorised by the appropriate personnel and should be provided on a need to know basis only. This need to know principle is a fundamental part of ensuring information is shared appropriately and is in compliance with the Data Protection Act Data retention, review and disposal Partner organisations will apply relevant regulations and timescales to the retention, review and disposal of information, (electronic and paper based), only keeping information for as long as is necessary in relation to the original purpose 25

26 Appropriate Security General The partners to this agreement acknowledge the security requirements of the Data Protection Act 1998 applicable to the processing of the information subject to this agreement. Each partner will make sure they take appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. In particular, each partner must make sure they have procedures in place to do everything reasonable to: make accidental compromise or damage unlikely during storage, handling, use, processing transmission or transport deter deliberate compromise or opportunist attack dispose of or destroy the data in a way that makes reconstruction unlikely promote discretion to avoid unauthorised access. Access to information subject to this agreement will only be granted to those professionals who need to know to effectively discharge their duties. Additional arrangements To determine what security measures are appropriate in any given case, partners must consider the type of data and the harm that would arise from a breach of security. Information obtained in confidence may be regarded as requiring a higher level of security. In particular, they must consider: where the information is stored the security measures programmed into the relevant equipment the reliability of employees having access to the information. Complaints and breaches All complaints or breaches relative to this agreement will be notified to the designated Data Protection Manager of the relevant organisation in accordance with their respective policy and procedures. Partner organisations will need to have appropriate arrangements to: tackle any breach of agreement handle internal discipline monitor security incidents deal with malfunctions. Indemnity In return for the provision of any information by a partner organisation to another (the Receiving Partner) under the terms of this Agreement, the Receiving Partner undertakes to indemnify the Partner that provided the information in respect of all claims and liabilities arising from the use of the information by the Receiving Partner or it s failure to comply with its obligations under the Agreement. 26

27 Subject Access Requests All Subject Access Requests must be made in writing to the relevant data controller and the subsequent actions taken must be fully recorded within the organisation s system. Information obtained from a partner organisation without the prior consent of the data subject cannot be disclosed to that individual without the agreement of the originating organisation. This does not prevent the individual making a separate Subject Access Request to the originating partner organisation. Agencies must make sure that data will be received by the requester no later than 40 days from receipt of request. Children under 12 years of age When a child does not have the capacity to understand the request, a parent/ guardian/carer can make a Subject Access Request in respect of their child. Parent/guardian/carer Parents/guardians/carers of individuals with sufficient understanding of their rights have no automatic rights of access to the subject s data (in accordance with Data Protection Act 1998) It is considered good practice to ensure that the parent/guardian/carer of those under 16 years old is informed that the gathering, recording and possible sharing of information is taking place. Parents/guardians/carers will normally only be able to access an individual s data (if they are deemed competent) with the signed consent of the subject. All parent/guardian/carer requests to access data must be referred to the designated manager within the relevant organisation. Access may be granted in cases where the designated manager is satisfied that an individual is not capable of representing themselves and that the parent/guardian/carer constitutes the client s legitimate representative. Where a Subject Access Request has been granted to the parent/guardian/ carer the reasons for doing so must be fully recorded and clearly referenced to the evidence and information on which the decision is made General operational guidance Partner organisations must consider the staff time and resource implications that are involved for the Data Controller extracting the data. If a request is made and then the data is no longer required there should be a process for withdrawing the request. Partner organisations to this agreement will need to identify: A named individual to lead on the Agreement How they will champion training on the Agreement. Partners will work within the accompanying Operational Agreement and Arrangements governing the collection, transfer, storage and disposal of information. 27

28 Review Arrangements This Information Sharing Protocol and Agreement will be formally reviewed annually unless legislation or government guidance necessitates an earlier review. Any of the signatories to the Agreement can request an extraordinary review at any time where a joint discussion or decision is necessary to address local service developments. Closure/termination of agreement Any partner organisation can suspend the Information Sharing Agreement for 30 days, if they feel that security has been seriously breached. This should be done in writing and evidence provided. Any suspension will be subject to a risk assessment and resolution meeting, comprising of the signatories of this agreement or their nominated representative. This meeting will take place within 14 days of any suspension. 28

29 Signatories to this Agreement: All members of Peterborough Children s Trust Partnership Board Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Signature: Designation: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: Date: Agency: 29

30 Appendix 1: Consent and Fraser Competence Guidelines Peterborough Children s Trust Data and Information Sharing In many instances, you will seek consent to share information from the parent/ carer. This is particularly the case in work with younger children and in any interventions which include support work with the family. However in some cases the child/young person will be able to give consent without referral to their parent/carer. This is possible if they are judged to be Fraser Competent. Children under 16 should always be encouraged to involve their parent/carer unless to do so could put them at risk of harm. Particular care should be taken with children with a disability, who are sometimes wrongly assumed not to be able to give consent. The term, Fraser competent, arises from the case in the 1980s when Victoria Gillick attempted to set a legal precedent which would have meant that medical practitioners could not give young people under the age of 16 treatment or contraceptive services without parental permission. (Gillick vv West Norfolk and Wisbech Area Health Authority, 1985) The ruling was initially successful but then the House of Lords ruled that young people who are under 16 are competent to give valid consent to a particular intervention if they have sufficient understanding and intelligence to enable them to understand fully what is proposed and are capable of expressing their own wishes. Lord Fraser was the leading Law Lord for the review. Although the ruling was initially in regard to medical consent, it is now generally felt that the ruling applies to consent for other services. 30

31 Appendix 1.1 Express Statutory Powers to Share Information Child Protection Agency Any agency or public body Social Services Social Services Why do you want to share/request information? There is reasonable cause to suspect that a child is suffering or is likely to suffer significant harm To undertake enquiries in order to decide if action should be taken to safeguard or promote the child s welfare As a result of above enquiries it appears there are matters connected with the child s education which should be investigated Who do you want to share with or request from? Social Services Any agency who may have information Relevant Education Authority Education Social Services request for information re above Social Services Local Housing Authority Health Authority Special Health Authority Primary Care Trust NHS Trust Social Services request for information re: above Social Services Social Services Child ordinarily living in another LA Social Services of another LA Express Statutory Power Section 47 Children Act 1989 Section 47 (1) Children Act 1989 Section 47 (5) Children Act 1989 Section 47 (9) Children Act 1989 Section 47 (9) Children Act 1989 Section 47 (12) Children Act

32 Child Protection - People Unsuitable to Work with Children Agency Why do you want to share/request information? Who do you want to share with or request from? Express Statutory Power Any organisation employing a person in a child care position An individual has been found guilty of misconduct (whether or not in the course of his employment) which harmed a child or placed a child at risk of harm Department for Health Section 2A Protection of Children Act 1999 Any organisation dealing with child care The organisation wishes to offer a job to a person in a child care capacity Department for Health Section 3 Protection of Children Act 1999 Any organisation employing a person in a care of vulnerable people position A person is found to be unsuitable to work with vulnerable adults Department for Health Section 82 Care Standards Act 2000 Local Authority (LA) School Agencies or Contractors of teachers Because a teacher has ceased to be employed because of misconduct or health General Teaching Council Sections 15 and 15 A Teaching and Higher Education Act

33 Child with a Disability Agency Social Services Social Services/Local Authority Social Services (or any other LA service) Social Services/Local Authority Why do you want to share/request information? Because it is believed that a child with a disability is likely to suffer harm but lives or is moving to another LA To compile and maintain a register of disabled children There is a need for health or housing provision and Health or Housing can assist with the assessment To compile and maintain a register of blind; partially sighted; deaf with speech; deaf without speech; hard of hearing; and general classes (those whose primary handicap is neither visual nor auditory) Who do you want to share with or request from? Other LA where child lives or is moving to. When informing the other LA the LA must specify the harm that they believe he is likely to suffer and (if they can) where the child lives or proposes to live Express Statutory Power Section 17(2) Children Act 1989 Para 4(3) provides that when informing that other LA they shall specify a) the harm that they believe he is likely to suffer and b) (if they can) where the child lives or proposes to live. Harm means ill treatment or the impairment of health or development. Development means physical, intellectual, emotional, social or behavioural development. Health means physical or mental health. Ill-treatment includes sexual abuse and forms of ill treatment that are not physical Health Services Children Act 1989 Section 17 (2) Primary Care Trust, Heath Authority or Local Housing Authority Health Services Section 47 National Health Service and Community Care Act 1990 Section 29 National Assistance Act

34 Child with Special Educational Needs Agency Why do you want to share/request information? Who do you want to share with or request from? Health, Education, Social Services Also they should seek advice from: Child s parent Head teacher, the teacher who taught the child, the person who the authority are satisfied have experience of teaching children with SEN Medical advice from the Health Authority (from a fully registered medical practitioner) Psychological advice (from Educational Psychologist) Advice from Social Services Any other advice which the LA considers appropriate Express Statutory Power Education/Health To assess a child s SEN Section 322 Education Act 1996 Regulation 7(1) Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (SI 3455/2001) LA Considering making an assessment of SEN. LA under obligation to send copies of the notice stating they are considering an assessment of SEN Social Services Health Authority Head Teacher of School pupil registered with (if any). If the child receives education from an early education provider, to the head of SEN in relation to that provider Regulation 6 Education (Special Education Needs) (England) (Consolidation) Regulations 2001 (SI 3455/2001) LA Requirement to serve list of all children with statements who will be in Year 10 of compulsory education To Connexions Regulation 18 Education (Special Education Needs) (England) (Consolidation) Regulations 2001 (SI 3455/2001) Headteacher Review of SEN requirement on HT to invite Rep from LA Parent Staff who teach the child Any other person the HT considers appropriate Any other person the LA considers appropriate and who is specified in the notice Where a child is in year 10 of compulsory school age a rep from Connexions Regulation 18 Education (Special Education Needs) (England) (Consolidation) Regulations 2001 (SI 3455/2001) 34

35 Children Statutory School Age Agency Education LA request to school Why do you want to share/request information? To know details of children registered at school Who do you want to share with or request from? School to LA School Change of School New School School Headteacher Headteacher Change of Educational Establishment (school higher education) Requirement to give certain information about excluded pupils Because a Headteacher must disclose a pupil s educational record to the parent New school/higher educational establishment (responsible person eg Headteacher LA Parent Express Statutory Power Section 434 Education Act 1996, Ss (4) Section 563 Education Act 1996 Education (Pupil Information) (England) Regulations 2000 SI 2000/297, Regulation 5 plus Regulation 10 Education (Pupil Exclusions and Appeals) (Pupil Referral Units) (England) Regulations 2002 (SI 3179/2002) Section 52 Education (Pupil Exclusions and Appeals (maintained schools) (England) Regulations 2002 (SI 3178/2002) Education (Pupil Information) (England) Regulations 2000 SI 2000/297, Regulation 5 35

36 Children Missing Education Agency Why do you want to share/request information? Who do you want to share with or request from? Implied Statutory Power Section 63 Children Act 2004 Section 47 Children Act 1989 Education Welfare Service of the Local Authority with Responsibility for Children s Services (previously LEA) To ascertain the whereabouts of any child who goes missing from education and whose new location/address is not known, to a) ensure the child s safety b) ensure the child continues to receive the education to which they are entitled c) prosecute offences relating to non-school attendance Local Authority Housing and Community Services Local Authority Revenue and Benefits Service (Council Tax and Housing Benefits) (Please note Council Tax information should not be used if parents have expressed an intention to educate at home this does not apply to the Housing Benefit information) NHS Tracking Service Section 14 (1) Education Act 1996 (duty on LA) Section 437 (1) Education Act 1996 (duty on LA) Section 10 (1) and (2) Children Act 2004 (duty on local authority) Section 2 (4) Local Government Act 2000 (power to local authority) Section 22 National Health Services Act 1977 (duty of Health Service and Local Authority) 36

37 Children Missing Education (continued) Agency Why do you want to share/request information? Who do you want to share with or request from? Implied Statutory Power Education Welfare Service of the Local Authority with Responsibility for Children s Services (previously LEA) To ascertain the whereabouts of any child who goes missing from education without any details of where they are moving to, to ensure the child s safety Inland Revenue (Child Benefit Section) Section 63 Children Act 2004 Amends Schedule 5 of the Tax Credit Act 2002, meaning that the Inland Revenue now has lawful authority to provide local authorities with the limited amount of information relating to children, ie names and address(es) Section 47 Children Act 1989 This requires local authorities to make enquiries where they suspect a child is suffering or is likely to suffer significant harm. Enquiries should only be made to the Inland Revenue after all other avenues for tracing missing children have been explored Sec 175 Education Act 2002 (1) and (4) Education Welfare Service of the Local Authority with Responsibility for Children s Services (previously LEA) Requirement to list all children missing education to ensure our duty to safeguard and promote the welfare of these children of these children is carried out Any statutory, voluntary or private sector provider who may have relevant information (Please note Council Tax information should not be used if parents have expressed an intention to educate at home this does not apply to the Housing Benefit information) Sec 19(4A) Education Act 1996 Sec 10 (2) c Children Act 2004 Identifying and maintaining contact with children missing or at risk of going missing from Education, July

38 School Children/Students Aged Inclusive Agency Why do you want to share/request information? Who do you want to share with or request from? Express Statutory Power Connexions Community, foundation and voluntary schools Community or foundation special schools CTCs, city colleges for technology or the arts Academies Pupil Referral Units Further Education Institutes Those in receipt of funding from the Learning Skills Council To help a young person take part in further education or training. Information covered: Name and address of a young person Name and address of parent of a young person Information in the institution s possession about a young person From any or all of the following: Local Authority Health Authority Chief Officer of Police Police Authority Probation Committee Youth Offending Team Primary Care Trust Section 117(1) Learning and Skills Act 2000 Note a parent (if the pupil has not attained 16) or a pupil (if 16 or over) can instruct the relevant institution not to provide the information described in s117 (1)(b) / s117 (2). Otherwise this information can be shared without consent Any person or body (see above) involved in the provision of further education or training To help a young person take part in further education or training Local Authority Strategic Health Authority Learning and Skills Council Chief Officer of Police Local Probation Board Youth Offending Team Primary Care Trust Section 120 Learning and Skills Act 2000 Children and Young People Involved or likely to be involved in Crime and Disorder Agency Local Authority or LA Why do you want to share/request information? To provide the courts with information relating to home surroundings, school news, health and character of the person (unless they are of the opinion it is not necessary to do so) Any authority or agency Person has committed a crime Police Who do you want to share with or request from? The Courts or the Youth Offending Team or Probation acting on behalf of the Courts Express Statutory Power Section 9 Children and Young Persons Act 1969 Section 29 Crime and Disorder Act

39 A child or young person who is in the care of the Local Authority under a Care Order Agency Why do you want to share/request information? Who do you want to share with or request from? Express Statutory Power Social Services Because a Looked-After Child is being accommodated at an establishment at which education is provided The Local Authority of the area in which the establishment is located Section 28 Children Act 1989 Any Health Authority or Local Authority Because a child is being accommodated by them and they are obliged to inform Social Services of this fact Social Services has to ensure the child s welfare is being adequately safeguarded and promoted Social Services in area where the child is being accommodated Section 85 Children Act 1989 A child or young person who is leaving or has left care Agency Why do you want to share/request information? Who do you want to share with or request from? Express Statutory Power Social Services Because a young person is entitled to leaving care services and Social Services have a duty to keep in contact with such a young person and to provide advice and assistance A young person is eligible if he has been in care for a period of 13 weeks or more since he was 14 (not necessarily continuous) and has left care after 16 but is still under 21 years of age. It does not include children who have received respite care for this period of time or if the young person has returned home Any agency that may have any information about the young person which enables the LA to undertake its statutory duty. Most likely to be Health Services but could be any agency (GP registration) Section 23 and 24 Children Act 1989 as amended by sections 24, 24A-D of the Children (Leaving Care) Act 2000 Social Services Because a young person who is eligible for after care services (see above) is moving to or has moved to another local authority area Social Services in the new area Section 23 and 24 Children Act 1989 as amended by sections 24, 24A-D of the Children (Leaving Care) Act 2000 Voluntary Organisation As above Social Services in new area Section 24C (2) Children (Leaving Care) Act 2000 Social Services Because the responsible Local Authority (the LA that held the last Care Order) has lost contact with a relevant care leaver and has to take reasonable steps to locate a young person who they have lost touch with Any agency who has this information, most likely Health Section 2, paragraph (11) Children (Leaving Care) Act

40 Adoption Agencies Agency Why do you want to share/request information? Who do you want to share with or request from? Express Statutory Power Any adoption agency Because an inquiry is being held under Section 81 of the Children s Act 1989 Anyone who is holding the enquiry Regulation 15 (1) Adoption Agencies Regulations 1983 (SI 1983/1964) A written record must be kept by the adoption agency of any such disclosure Any adoption agency For a complaint about the adoption agency to be investigated or consideration given to any representation Any person appointed by the adoption agency to investigate complaints or consider representations Regulation 15 (1) Adoption Agencies Regulations 1983 (SI 1983/1964) A written record must be kept by the adoption agency of any such disclosure Any adoption agency Because it is felt to be in the interests of a child or prospective adopter if information is shared with another adoption agency. Any other adoption agency Regulation 16 Adoption Agencies Regulations 1983 (SI 1983/1964) A written record must be kept by the adoption agency of any such disclosure Any adoption agency Because the adoption agency intends to cease to act or exist To the local authority or other adoption agency, in the same area Regulation 16 Adoption Agencies Regulations 1983 (SI 1983/1964) 40

41 Asylum Seekers Agency Why do you want to share/request information? Who do you want to share with or request from? Police, National Criminal Intelligence Service, National Crime Squad Customs and Excise or a person providing services to them in connection with the provision of those services Any person specified, for the purposes specified in relation to that person (eg Asylum Teams within local authorities, Home Office, the National Asylum Support Service and the Refugee Council Secretary of State Secretary of State Secretary of State To provide the Secretary of State with any information held for use for immigration purposes, ie for the administration of immigration control; to detect or prevent criminal offences under Immigration Acts; provision of support for asylum seekers and their dependents and any other such purposes as may be specified For the prevention, detection, investigation of prosecution of criminal offences; safeguarding national security; such other purposes as may be specified National Criminal Intelligence Service (NCIS) purposes, ie for any functions of the NCIS mentioned in S 2 of the Police Act 1997, ie to gather, store and analyse information to provide criminal intelligence, to provide criminal intelligence to police forces in Great Britain.the National Crime Squad and other law enforcement agencies; to act in support of such police forces, the National Crime Squad and other law enforcement agencies carrying out their criminal intelligence activities NCS purposes, ie any functions of the NCS mentioned in section 48 of the Police Act 1997 Secretary of State A chief officer of police The Director General of the National Criminal Intelligence Services The Director General of the National Crime Squad Express Statutory Power Section 20 Immigration and Asylum Act 1999 Section 21 Immigration and Asylum Act 1999 Section 21 Immigration and Asylum Act 1999 Section 21 Immigration and Asylum Act

42 Agency Why do you want to share/request information? Who do you want to share with or request from? Express Statutory Power Secretary of State In order for the body or person to carry out the services they have been authorised or are obliged to do Asylum Teams within local authorities, Home Office, the National Asylum Support Service and the Refugee Council Section 21 Immigration and Asylum Act 1999 Secretary of State For any customs purposes, ie Criminal offences; Conduct which would incur a non-criminal penalty under any Act; The assessment or determination of non-criminal; Checking the accuracy of information provided for Customs and Excise matters; Legal proceedings; Safeguarding national security The Commissioners of Customs and Excise, or a person providing services to them Section 21 Immigration and Asylum Act

43 Appendix General Functions, Powers & Duties (Implied Statutory Powers) Comment - to use implied statutory powers, stronger justification is required to demonstrate that it is necessary to share sensitive data without explicit consent. For sensitive data see above. General Agency Any Local Authority Department Any Local Authority Department Any Health Service within NHS Any Health Service within NHS and Local Authority Why do you want to share/request information? Because the department has a statutory duty to carry out a particular function, eg filling in the Pupil Level Annual School Census by the LA Because the local authority considers that with the information it can: a) promote or improve the economic well-being in their area b) promote or improve the social wellbeing of their area c) promote or improve the environmental wellbeing of their area To provide a comprehensive health service in England and Wales to improve the physical and mental health of the population and to prevent and diagnose and treat illness In order for Health to exercise their Health Service functions and for the LA to exercise its functions in order to secure and advance the health and welfare of the people of England and Wales Who do you want to share with or request from? Other agencies (including voluntary agencies) that hold relevant information to enable the LA department to carry out its statutory duty. Without the information they would not be able to carry out the particular function Any other agency who holds relevant information Other NHS practitioners working within the health service and practitioners from other agencies, e.g. social services, who are carrying out health service functions that would otherwise be carried out by the NHS Implied Statutory Power Section 111 Local Government Act 1972 Gives LAs the power to do anything... which is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions Section 2 Local Government Act 2000 Gives the LA a power to do anything they consider is likely to achieve any one or more of the objectives as set out in column 2. So long as there are no restrictions or prohibitions or limitations in other enactments, ie must be compatible with the requirements of the Data Protection Act and the Human Rights Act and, unless the statutory provision clearly authorises disclosure, with the common law duty of confidentiality Section 2 National Health Service Act 1977 As above Section 22 National Health Service Act

44 A child in need Agency Why do you want to share/request information? Who do you want to share with or request from? Implied Statutory Power Any Local Authority Any Local Education Authority Any Local Housing Authority Any Health Authority (all acting on behalf of the responsible LA) Because it is felt that the child or young person or family is in need of services to safeguard and promote the welfare of a child or young person Section 17 of Children s Act states a child is in need if: (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled. Family" includes any person who has parental responsibility for the child and any other person with whom he has been living Other agencies within this partnership who are involved with the child, young person or family and with any other agency that may provide the appropriate services (including voluntary agencies) Section 17 (1) Children s Act 1989 (provision of service) This places a general duty on every LA to a) safeguard and promote the welfare of children within their area who are in need and b) so far is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children s needs Section 27 (1) (2) and (3) Children s Act 1989 (other agencies acting on behalf of the LA) Section 17 (5) Children s Act 1989 (voluntary agencies) Section 17 (10) and (11) Children s Act 1989 (definition of a child in need) Section 2 Local Government Act 2000 Health Service A child or young person has physical or mental health problems which require extra services Any agency that can provide appropriate health services (that could be voluntary agency providing a health service) National Health Service Act 1977, Section 1 Social Services Because it is felt that another organisation could assist them to provide support for children in need and or their families Any authority to whom such a request is made has a duty to co-operate provided that the request is not incompatible with the performance of its own obligations or unduly prejudice the performance of their own functions Other local authorities Any local education authority Any local housing authority Any health authority Children Act 1989, Section 27 44

45 A child or young person involved or likely to be involved in crime and disorder Agency Why do you want to share/request information? Who do you want to share with or request from? Implied Statutory Power Social Services Local Authority (any section) Local Authority Police Local Authority (all services as applicable, eg Housing) National Park Authority Broads Authority Joint Authority Health Probation Youth Offending Team To encourage children and young persons not to commit a crime To encourage children and young persons not to commit a crime Have reasonable belief that a child or young person is likely to commit a crime and therefore to prevent crime occurring Youth Offending Team Any relevant agency to act on behalf of the Local Authority to discourage a child or young person from committing a crime Any appropriate agency that can assist the child or young person to prevent them from committing a crime. For example Health, Youth Offending, Voluntary Agency if appropriate Section 40(3) Crime and Disorder Act 1998 Children s Act 1989 Schedule 3 Children s Act 1989 Schedule 3 Section 115, Section 17(1), Section 37 and Section 38. Crime and Disorder Act 1998 Please note the amount of information disclosed must be only be disclosed on a need to know basis and the minimum amount of information necessary to fulfil the statutory duty should be provided. It can only be relied upon for authorities to work together to prevent/reduce crime 45

46 Children Reaching Statutory School Age - Admission to Schools Agency Agency responsible for admissions to schools Why do you want to share/request information? The information is required annually to ensure all children are in receipt of the education to which they are entitled. Access to this education is in the best interest of the children and is their legal right. Contact details required for all children whose fourth birthday falls between the 1 September and the 31 August for the forthcoming school year Who do you want to share with or request from? The primary care trust responsible for recording and holding details of all pre-school children for the local area Implied Statutory Power Section Education Act (duty on parents) Section 14 (1) 1996 Education Act (duty on LA) Section 437 (1) 1996 Education Act (duty on LA) Section 10 (1) and (2) Children s Act 2004 (duty on local authority) Section 2 (4) Local Government Act 2000 (power to local authority) Section 22 National Health Services Act 1977 (duty of Health Service and Local Authority) 46

47 Appendix 2: Caldicott Principles In 1997, Dame Fiona Caldicott chaired a committee, which looked at how staff in the NHS, could improve the way in which patient and other information is looked after. Her report recommended the appointment of a Guardian within every NHS establishment to protect patient-identifiable information. These are the Caldicott Guardian's main responsibilities: Guardians are responsible for agreeing and reviewing internal protocols governing the protection and use of patient-identifiable information by the staff of their organisation. Guardians need to be satisfied that these protocols address the requirements of national guidance/policies and law and that their operation is monitored. Guardians are responsible for agreeing and reviewing protocols governing the disclosure of patient information across organisational boundaries, e.g. with social services and other partner organisations contributing to the local provision of care. These protocols should underpin and facilitate the development of cross boundary working, health improvement programmes and other changes relating to multi-agency and partnership working. Guardians have a strategic role, developing security and confidentiality policies, representing confidentiality requirements and issues at Board level, advising on annual improvement plans, and agreeing and presenting annual outcome reports. Local issues regarding the release of Information will inevitably arise. They should always be referred to the Caldicott Guardian or their deputy, for resolution. The six main principles of the Caldicott Report are: Justify the purpose(s) for giving or receiving information to/from others. Don t use patient-identifiable information unless it is absolutely necessary. Use the minimum necessary patient-identifiable information. Access to patient-identifiable information should be on a strict need to know basis. Everyone should be aware of their responsibilities. Understand and comply with the Law. 47

48 Appendix 3: Supplement to Part 2 - Legal Duties and Powers to Share Information in relation to Children and Young People In addition to legislation about information sharing, there are a large number of specific acts of parliament which give a duty or power to share information about children and young people for various purposes. This appendix gives further information about these statutory duties and powers. Some agencies will find relevant legislation in a number of different sections: for instance, Social Services may find relevant information under Any Agency or Public Body, More than One Designated Agency, Local Authority, and Social Services headings. Some items are noted to give implied (as opposed to explicit) statutory powers to share information. To use implied statutory powers, stronger justification is required to show that it is necessary to share sensitive data without explicit consent. (Sensitive data is defined as information about a person s physical or mental health or condition, racial or ethnic origins, political opinions, trade union membership, religious beliefs, sexual life, or criminal offences). 48

49 References This document has been produced with reference to existing protocols already in use and in line with Every Child Matters and other guidance documents including: ACPO, CENTREX: Guidance on the Management of Police Information, 2006 Connexions Cambridgeshire and Peterborough: Information sharing Protocol, 2003 DfES: Every Child Matters (ECM): Statutory guidance on inter-agency co-operation to improve the wellbeing of children: children s trusts, 2005 DfES: ECM: What to do if you re worried a child is being abused, 2006 DfES: ECM: Information sharing: guidance for practitioners, 2006 DfES: ECM: Information sharing: further guidance on legal issues, 2006 H.M. Government: The Children Act 2004 H.M. Government: Information Sharing: Guidance for Practitioners and managers Youth Justice Board: Sharing Sensitive and Sensitive Personal Information on Children and Young People at Risk of Offending A Practical Guide, 2005 For more information For help with any information in this Data and Information Sharing Protocol and Agreement, please contact: Peterborough City Council Children s Services Bayard Place Broadway Peterborough PE1 1FB Telephone: [email protected] 49