I have argued ceaselessly during the past decade about how vital it is to use partnership information to make better and earlier decisions concerning the identification of need, harm and risk to children and vulnerable adults.
But this has to be within the law – and the rights of every individual to privacy have to be respected by the state. Personal information should only be shared with or without consent if it is Necessary, Proportionate and Relevant to do so (I capitalise these word deliberately). All those tasked with these professional considerations would do well to always consider NP&R.
I’m nailing my colours to the mast early on in this blog because the debate around consent needs to be clear and considered among safeguarding professionals.
Information sharing within safeguarding practice
Recently, while waiting to go on as a speaker at a seminar, I was joined at my table in the breakout room by a couple who spoke about the forthcoming presentation. Mine. In short they critiqued me and what they took to be my speech on information sharing within safeguarding practice.
I heard one of them say: “There isn’t a judge in the land who is going to criticise us for sharing information anymore after all the cases in the papers and on the TV.” I took this to be a reference to the tragic lives of children such as Victoria Climbie, Baby Peter, Kyra Ishaq and Daniel Pelka whose cases were subject to Serious Case Review and some Public Enquiry. Information sharing and communication between professionals had been identified as one of the key areas.
The two professionals dismissed all the difficulties around gaining consent or ensuring good information security of data, which almost prompted me to launch a well aimed verbal salvo at them. Well almost.
The key problem with their argument is the law as it stands in respect of both national legislation and the wider European Convention on Human Rights. There is also a problem with people like me who believe in freedom of the individual.
Consent and the individual right to privacy it underpins is a safeguarding practice issue and I argue strongly that it needs to stay that way and be respected.
The judge disagrees
My two seminar attendees were wrong in their contention that the judiciary wouldn’t dare to disagree. They will be criticised heavily by the courts and their organisations will be damaged financially and in terms of their reputation should someone have the inclination to challenge their practice.
The Haringey Judgement or The Queen on the application of AB & CD v The London Borough of Haringey (2013) to identify it properly did exactly this.
Indeed, I would urge any safeguarding professional to read the judicial finding and reflect. It is interesting to note about the judgement that it changed nothing in terms of the consent issue. Absolutely nothing.
It did, however, reinforce two clear principles regarding the sharing (and gathering to share) of personal information when trying to consider need, harm and risk to children.
Consent should always be considered prior to sharing and a good record should be made of all decisions to share or not, and the reasons why it is being shared on a cases-by-case basis. Importantly, this includes why information is being shared without the consent of a suitable person in law.
It is lawful to share without consent if any professional believes:
- There are child protection concerns (think significant harm here and Section 47 Children Act 1989)
- When it is suspected that if attempts are made to seek consent from the parents or carer this may place the child or another child at risk of harm (as above).
- When the referrer has sought consent and the parent has refused permission. If this is the case and the referrer believes that by not referring the case to the local authority concerns are likely to escalate and may place the child at risk of harm or potential harm. Refusal to consent is not sufficient on its own.
Therefore, it follows that if a professional does not reasonably believe any of the above concerning a child or children consent is needed prior to sharing.
Consent should be written, informed, explicit
Consent should be written, informed and explicit. Professionals need to clearly explain the process which the information will be used within, the information that will be shared and with whom, together with a person’s rights to refuse, limit or withdraw consent and any implication that may have on service delivery.
Consideration needs to be made concerning vulnerable adults as well, but the rights of the adult involved or their independent advocate need to be considered.
The MASH model was designed to work in this way where consent should be uppermost in the minds of those handling referrals and contacts of concern. It worries and annoys me when I hear comments that “MASH did away with the need to consider consent”.
But the true MASH model did not and never intended to do way with the need to consider consent.
I delivered my hour at the seminar and as ever most of those in the room were polite and engaged having clearly attended the seminar to help them consider their daily professional practice. But it was telling that I saw only one of the two coffee time acquaintances. I reflected on the potential influence they may have on their work colleagues and especially the newly trained and qualified staff they are leading.
In the second part of this blog I will talk through the key issues and identify good practice.
Recently I co-authored and edited a book – Multiagency Safeguarding in a Public Protection World – a handbook for protecting children and vulnerable adults. This discusses consent in far more depth. Here’s the link. All purchases go to charity