Information sharing for schools - the devil is in the detail

This is part of our safeguarding insights section.  Our aim is to provide you with a broader understanding of a specific topic through a researched and referenced article that contributes towards your professional development and ensures that you can support your staff accordingly.

10 minute read

DSLs and Safeguarding Teams

Please note that this does not constitute legal advice, but is our interpretation of the law and guidance as it stands in November 2018.

Introduction

A key factor in many serious case reviews is that a good standard of practice has not been in evidence when professionals have been recording, sharing, discussing and analysing information in order to make an assessment of the needs of a child or the risks to the child. Often it is only when information from a number of sources has been shared that it becomes clear that a child has suffered, or is likely to suffer, significant harm.

When working with children and vulnerable adults, information sharing is often likened to putting the pieces of a jigsaw together.  When pieces are missing this can mean individuals having to say the same thing to multiple people, whilst agencies have an incomplete picture which impacts on the ability of services to support those who need it.

Deciding to share information

Making a decision about whether to share information can be difficult, often there are pressures from other people or agencies to share information, however you need to be sure that you have grounds for sharing the information.  There can also be added complications about knowing which information to share and whether the consents that you have in place cover additional information sharing.

Research (2016) shows that decisions about sharing of information can also be impacted on by the views of individuals and matters such as the inherent “rule of optimism”.  The impact of this may mean that the need to share information about specific incidents is rationalised out and so the information is not shared.  The same research also identifies several other barriers to information sharing:

• concern about the risk of breakdown in the relationship with the family (for example this may be couched in terms of not wanting to break a person’s trust);
• the professional concerned having a lack of confidence about their knowledge and skills in a certain area and this impacting on their decision making;
• concern about potential negative impacts on either themselves and their professional career or the organisation.

As set out in Data Protection: a toolkit for schools:

Fears about sharing information must not be allowed to stand in the way of promoting the welfare and protecting the safety of children. (p.24)

When to share information

Section 11 of the Children Act 2004 places a duty on educational providers to safeguard and promote the duties of children in their care, with this requirement being further explored in Working Together and Keeping Children Safe in Education.

Working Together states that:

Practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks or concerns about the safety and welfare of children, whether this is when problems are first emerging, or where a child is already known to local authority children’s social care (e.g. they are being supported as a child in need or have a child protection plan). Practitioners should be alert to sharing important information about any adults with whom that child has contact, which may impact the child’s safety or welfare. (Working together to safeguard children)

Working Together goes on to identify that we should never assume that someone else has passed on information but that we remain clear as to the legal basis on which we are sharing information.

Supplementary government guidance aimed at all practitioners sets out the 7 golden rules to information sharing.  This document is clear that whilst the introduction of the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 place a greater emphasis on the handling and storing of data, neither of these provisions prevent information from being shared to keep children and young people safe.

Information sharing for safeguarding purposes

Whilst education providers may have general consents in place that parents are required to review on a regular basis and policies that set out the requirement on schools to share information when there are safeguarding concerns, there is still a requirement to seek or override consent on a case by case basis.

As identified in point 4 of the seven golden rules for sharing information, where possible information should be shared with the consent of those involved, this involving working in partnership with parents which is inherently good practice.  Consent should be informed with the person understanding what they are consenting to, what the implications of consenting are and what the implications of not consenting.  This may require consideration of competence / capacity of the person being asked to give consent, and whether the consent that they are giving can be classed as true consent.

There are times where consent can be dispensed of, namely where seeking consent could:

• place the child or a member of their family at increased risk of harm (for example a child could face further physical abuse for having disclosed, a parent may face further domestic violence as a result of the perpetrator knowing that agencies have been told);
• impact on the course of a criminal investigation;
• lead to an unjustifiable delay in getting help and support to reduce potential risk to a child or adult.

This is supported by Schedule 8 (s4) of the Data Protection Act 2018 which ensures that personal data can be processed lawfully (and if necessary shared without consent) for safeguarding purposes so long as:

• it is in the substantial public interest, and
• necessary for the purpose of:
  1. protecting an individual from neglect or physical, mental or emotional harm; or
  2. protecting the physical, mental or emotional well-being of an individual

where that individual is aged under 18, or aged 18 or over and at risk.

Lawyers Farrer and Co., in discussing this section, identify that “substantial public interest” appears to set a high bar but suggest that it may reasonably “be assumed that the law intends any material or justifiable step to protect individuals at risk to be considered as being in the substantial public interest.”  They acknowledge that case law may change this over time, however this is something for the future.  The current position is, in itself, not that far removed from the requirements of the now repealed Data Protection Act 1998 and therefore appears to represent little change to the practices under which we were previously working.

Essentially the starting point must be that consent is required to share information.  If you decide to consent with consent there must be a clear rationale for doing so and this should be recorded.

Recording information sharing decisions

Whether the decision is to share information or to withhold information, you should ensure that the decision is recorded along with the rationale for the decision.  The following suggested format of what to record is based on the now archived Department for Education guidance issued in 2011:

• date and time (e.g. 03/11/18 – 13.25);
• what you were being asked to share and why (e.g. records of contacts with mother over the last two weeks – child protection enquiries);
• who was requesting the information (including professional title, who the person works for and where possible a contact number) (e.g. Pam Smith, Social worker, Anyplace Children’s Services, 01234 5678901);
• your decision, i.e. did you decide to share information or not (e.g. decision made to share information in order to safeguard child).

If you do decide to share information, then you should also record:

• whether you have shared information with consent (e.g. shared without consent);
• if sharing with consent, how this consent was obtained (e.g. consent obtained by social worker);
• if sharing without consent then why it was considered that consent was not required (e.g. child protection enquiries being made as child considered to be at risk of harm);
• what type if information was shared, but not the content (e.g. records of conversations with mother as held in school database);
• how the information was shared (e.g. sent by secure email - social worker confirmed receipt).

As shown in the examples, the detail can be minimal, however it is important that it is recorded clearly should you face a challenge later.  Challenges can come months or years later and you are not likely to be able to remember every decision you made.

Transferring information to new schools

Keeping Children Safe in Education sets out requirements in relation to transfer of child protection information to a new school or college, identifying that:

• the child protection file should transfer as soon as possible;
• the transfer should be by secure means;
• transfer should be separate to the main pupil file;
• confirmation of receipt should be obtained;
• consideration should be given as to whether information should be shared with the new setting in advance of the child moving.

Parental consent is not required to transfer this data as it is part of the work done to ensure that the child remains safe from harm.  If parents do object, then it is important to record their objection, the reasons for it and the reasons for transfer.