1.1.2 Confidentiality Policy

RELATED NATIONAL GUIDANCE

Information Sharing: Advice For Practitioners Providing Safeguarding Services To Children, Young People, Parents And Carers (GOV.UK) 

AMENDMENT

In March 2020, links were updated to local guidance.

1. Children's Services Confidentiality Policy

1.1 Introduction

Sheffield Children's Services recognises its common law duties to safeguard the confidentiality of all personal information. Wherever disclosure of confidential information to another person or organisation is being considered, a check will always be made to ensure that such disclosure is lawful.

All Sheffield City Council staff are made aware that the UK General Data Protection Regulations (UK GDPR) and Data Protection Act 2018 apply to the processing of all personal data, both in paper and electronic records. Where disclosure is proposed, and there is any doubt as to whether the Data Protection Act / UK GDPR apply or whether only the common law of confidentiality applies, advice can be sought from the Information Management Team at: Information management.

Sheffield City Council will always record its reasons for deciding not to observe any duty of confidence it owes to a person who is the subject of information disclosed.

Email messages sent via the Internet can be intercepted, read and changed relatively easily. Consequently, Council staff will not use the Internet to pass on personal identifiable information about service users unless a secure or encrypted connection is in place.

1.2 Staff Obligations

Sheffield City Council's conditions of employment, issued as part of every employee's contract, detail the obligations placed upon the Council staff (Code of Conduct).

Staff employed with the Council will come into contact with confidential information/data relating to the work of the Council, its service users and other staff. Staff are bound by their conditions of service to respect the confidentiality of any information that they may come into contact with and under no circumstances should such information be divulged or passed to any persons or organisation in any form unless such disclosure is authorised under this policy.

Any unauthorised disclosure of confidential information by Council staff may result in disciplinary action. Staff may also face prosecution under the Data Protection Act 2018 / UK General Data Protection Regulation.

Where Council staff misuse confidential information, e.g. disclose their password to someone else or use someone else's password to gain access to systems, they could face disciplinary action that could lead to dismissal. They may also be prosecuted under the Computer Misuse Act 1990.

Managers must ensure that confidentiality is discussed with all new employees, as part of their induction. Staff acknowledge that they have taken note of the contents of this policy, as part of the induction process and within supervision.

Volunteers and work experience students must also have their role in maintaining confidentiality made clear by the member of staff responsible for them and must be aware of and adhere to this policy.

All Sheffield City Council staff are required to complete the mandated Information Governance e-learning module at least every 12 months.

All information security incidents must be immediately reported to a manager in the Information Management Team. Please see local intranet for further information: Report an information security incident.

Document Seizure

Occasionally it will be necessary for a young person's record to be seized and secured as part of an investigation where there is a need to establish what actions have been taken regarding a case and what has been recorded.

Document seizure will only occur in situations where there is a requirement to undertake a significant review of actions (e.g. Child Safeguarding Practice Review, judicial review or disciplinary processes). This process will only be enacted in exceptional circumstances and can only be triggered by an Assistant Director or higher. Further details can be found in the Local Resources.

1.3 Commercial Confidentiality

Some Council staff may have access to commercial information, agreements or contracts. This information must be treated as confidential, and only discussed/disclosed where this forms part of the employee's remit within the organisation. Staff should consult their manager if they are in any doubt. Any external requests should follow the Freedom of Information procedure. Please see local intranet for further information: Handling Freedom of Information requests.

1.4 Research, Audit and Monitoring

Access to confidential information or anonymous data may be sought for research, audit or monitoring purposes, either by other Council areas or by outside organisations or public bodies.

All requests (both internal and external) relating to conducting research with our services will be subject to our Research Governance Process. This is a two stage process which involves an outline application for an 'in principle decision'. If agreed, a detailed application submitted on the research governance project plan is then requested, see Social Care Research.

1.5 Press Interest, Police and Legal Enquiries

For all Press enquiries contact the Press Team - see Dealing with the Media.

The Police do not have automatic rights to personal information held by the Council about service users. The matter should always be referred to a manager and/or Legal Services, and/or the Information Management Team (Information Management).

Any requests for access to confidential information held by the Council for the purpose of any legal proceedings must be referred to the Council's Legal Services. A Court Order is required in order to release such information for legal proceedings. Verbal or written requests from lawyers are not sufficient. Staff should also seek advice from their manager and, where advised, the Data Protection Officer to ensure that correct action is taken.

2. Confidentiality Values and Principles

The following guidance should be read along with the government publication Information Sharing Advice for Practitioners Providing Safeguarding Services to Children, Young People, Parents and Carers (March 2015).

2.1 Personal information is subject to a legal duty of confidence

Personal information held about children is subject to a legal duty of confidence and should not normally be disclosed without the consent of the subject. The exceptions to this are set out in Section 2.2, Disclosure of confidential information is permitted in exceptional circumstances.

The legal framework for confidentiality is contained in the common law duty of confidence, the Children Act 1989, the Human Rights Act 1998, the UK General Data Protection Regulations (UK GDPR) and the Data Protection Act 2018.

Privacy Notices are documents which local authorities are required by law to issue to service users to explain why they hold information on individuals, what information it holds and the third parties to whom it may be passed on. There may be occasions when these are not issued, for example, if it would place the service user at risk.

Sheffield Children's Services issue the 'how we use your information' notification to our service users to comply with the requirements of the Data Protection legislation.

2.2 Disclosure of confidential information is permitted in exceptional circumstances

Whilst the general principle is that information obtained about children and their families must be shared with them and not with others, there are exceptions. The public interest in safeguarding the welfare of children overrides the public interest in maintaining confidentiality and the law permits the disclosure of confidential information necessary to safeguard children and young people. Effective information-sharing underpins integrated working and is a vital element of both early intervention and safeguarding.

Disclosure of confidential information should be justifiable and a record made in each case, for example to provide information to professionals from other agencies working with the child, and where possible and appropriate, the agreement of the person concerned should be obtained.

Those working with children and families must make it clear to them that confidentiality may not be maintained if the disclosure of information is necessary in the interests of the child. Even in these circumstances, disclosure will be appropriate for the purpose and only to the extent necessary to achieve that purpose.

There may also be situations where third parties have a statutory right of access to the information or where a Court Order requires that access be given.

The circumstances in which information held in records on children and families can and should be disclosed and shared with others, with or without consent, are set out in the following sections.

In all other cases, where third parties such as advocates, solicitors or external researchers request access to information, this should only be given if written consent is given by the person concerned or if a Court Order requires it.

2.3 Situations where disclosure is permitted should be shared with children involved

Children and families should be informed of the circumstances in which information about them will be shared with others, and their consent to this sharing obtained. They should also be helped to understand that, in some situations, sharing information without consent could be justified – for example to safeguard a child or adult at risk. It should be made clear that in each case the information passed on will only be what is relevant and on a 'need to know' basis.

2.4 Information should be disclosed to colleagues and other professionals/agencies on a need to know basis

Sharing information promptly with others working with the same child, or who may need to know, is invariably the key to safeguarding the child's interests.

Therefore, relevant information about children must be shared with colleagues, other professionals or agencies that may have a key role to play in their care.

There are also situations where council employees have a legal duty to share information.

For example:

  • Where professionals are undertaking a Section 47 Enquiry in relation to a child;
  • Where information is requested in the furtherance of an inquiry or tribunal, or for the purposes of a Child Safeguarding Practice Review.

In such circumstances the person to whom the information relates should be informed that records have been requested unless to do so would prejudice the purpose of the request.

Any objections they have should be considered before responding to the person making the request.

Where information or records are passed to others it should be noted and confirmed in writing. The Information Management Team can offer advice if staff are unsure.

Information may also be disclosed to persons who have a statutory right of access to the information, for example:

  • Where the Court directs that records be produced or a Children's Guardian is appointed;
  • Where information is requested by Inspectors of the Regulatory Authority (who have specific statutory powers that permit access to records).

Where information is requested by telephone or electronically, great care must be taken to ensure that the recipient is entitled to receive the information requested. Evidence should be gathered to verify professional identity and be clear on the rationale for why access is required. Where there is any doubt, the information may not be provided without the approval of a manager.

Information can be shared with foster carers where this is necessary in order to care appropriately for the child/young person. The information should be relevant and proportionate and issues of confidentiality should be emphasised.

3. Freedom of Information Act 2000

The Freedom of Information Act 2000 came into force on 1 January 2005.

Under the Act anybody may request non personal information in writing or via email from a public authority (which includes all local authorities) and must receive a response within 20 working days. The Act confers two statutory rights on applicants:

  • To be informed in writing whether or not the public authority holds the information requested; and if so;
  • To have that information communicated to him/her.

The Act applies to all information whether recent or old.

The Act sets out 23 exemptions from rights of access to information. If the information is exempt, there is no right of access under the Act.

One exemption relates to personal information. This means that an application for personal information under the Act is exempt and will not therefore be dealt with under the Act. See Access to Records / Subject Access Requests Procedure.

Another category relates to information provided in confidence where disclosure would involve an actionable breach of confidence. This would include information provided by a member of the public about a child protection issue where the individual has provided the information on the basis that anonymity will be maintained.

The Act therefore does not change the legal position into the principles of confidentiality set out in paragraphs 2.1 to 2.4 above.