- 17 Oct 2018
Attendees and apologies
- Ian Welsh, Chair
- Annette Holiday, Unite/Community Practitioners and Health Visiting Association
- Chris Creegan, Scottish Commission for Learning Disability
- Eddie Docherty, Scottish Executive Nursing Directors
- Joanna Murphy, National Parent Forum Scotland
- Jennifer King, Association of Directors of Education Scotland
- Maureen Falconer, Information Commissioner's Office
- Paul Martin, Independent Chair for Child and Adult Protection Committees Scotland
- Sally Ann Kelly, Coalition of Care and Support Providers in Scotland
- Lorna Greene, Royal College of Nursing
- Mike Burns, Social Work Scotland
- Brian Johnston, Police Scotland
- Maria Galli, South Ayrshire Council, and as delegate for Juliet Harris, Together Scotland.
- Anne Houston, Child Protection Committees Scotland
- Susan Quinn, Educational Institute of Scotland
- Norma Shippin, Central Legal Office, NHS National Services Scotland
- Juliet Harris, Together Scotland
- Peter Hessett, Society of Local Authority Lawyers and Administrators in Scotland
Items and actions
The Chair welcomed members. The Chair set out objectives for the meeting and updated them on recent media enquiries since last meeting.
Updates and amendments made to draft Code of Practice
The Chair invited Maria Galli to update the Panel on the discussion from the last Legal Focus Group meeting.
Ms Galli reported that the Legal Focus Group has suggested several changes to the draft Code of Practice, following their recent meeting. These included ensuring that from the outset of the draft code of practice the focus should be on the human rights issues (under ECHR and UNCRC) to explicitly address the concerns of the Supreme Court. This would include ensuring consideration of the child’s best interests, the child and family’s rights to participate in decision-making, respect for family life and privacy and what this means in terms of the ‘duty to consider’.
Ms Galli reported that the Legal Focus Group further considered the legal issues around ‘consent’ ‘opt-in’ and ‘imbalance of power’ , stemming from the new data protection laws and the group had agreed that ordinarily, in children’s services, the legal basis for sharing information for the named person service and in terms of the 2014 Act, (in all but exceptional circumstances) will be a consensual, participatory, child-centred approach to deciding whether information needs to be shared with, or disclosed to, any other party.
In addition, the Legal Focus Group had discussed an appropriate legal basis for sharing information, where it may be necessary for the delivery of a ‘public task’ in accordance with data protection laws. The group considered whether the ‘public task’ condition would permit disclosure of personal information without consent in any other circumstances which do not fall within public protection, the protection of vital interests/ risk of significant harm and the Children’s Hearings (Scotland) Act 2011.
Further, the Legal Focus Group discussed the law of confidentiality and recommended referencing existing codes of practice relevant to those who have duties.
The Chair thanked Ms Galli and concluded that there are on-going discussions around how to incorporate more explicitly aspects of human rights particularly those under articles 3 and 12 UNCRC, and article 8 of ECHR, within the draft Code.
The Chair also stated that he would like the draft Code to be more concise. He recommended that the Children’s Rights and Wellbeing Impact Assessment for the Bill be updated to reflect progress with the draft Code of Practice in due course.
Panel discussion and approval of draft Code of Practice
The Chair opened the floor for views from the Panel. The panel members discussed the legal basis for information sharing for the named person. There was discussion about the implications of recital 43 of EU GDPR:
“In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation”.
Panel members requested that further consideration of the legal basis for information sharing for the named person service is given. Members discussed how best to present the section on consent Maureen Falconer and agreed to forward ICO’s response to the Public Petition to officials, as this could be a useful way to approach the consent section of the draft code.
Members agreed that the flow of information with the draft code as is was more logical and suggested amendments to make the content more accessible.
The Panel were also positive about making it clear that there is no obligation to accept the offer of advice or support from a named person. This included discussion about how rights and legal aspects of information sharing could be communicated clearly to children, young people and families. The Chair thanked members for their comments and asked for the sections in the draft code on consent and data protection law to be further refined.
Members discussed the terminology used to describe the intended audience for the draft code. Members agreed that stating that the code is aimed at named person service providers rather than data controllers would suffice as data controllers follow the same legal regulations within their organisation i.e. the service provider. Members suggested that including a set of key principles that underpin the code would be helpful for the reader. There were also some minor suggestions made on format and removal of content which added no significant value.
The Chair concluded that he was content with the approach of more focus on human rights. He stated that a short list of key messages would be helpful and asked members to suggest wording for these to be circulated to the Secretariat. He stated that members need to think about how these key messages can be articulated and asked for these to be placed at the beginning of the draft code. He asked for deletions where there is over specification of some aspects, define more explicitly who the code is for with the removal of the term data controller and some areas need to be reworked to reflect the Panel’s discussion.
- Scottish Government officials with advice from some members of the Legal Focus Group to rework relevant areas to reflect the Panel’s discussion
- Panel members to submit suggestions on key messages to be included in to the draft code of practice for information sharing to the Secretariat as soon as possible
Consultation update discussion and sign off
The Secretariat updated the Panel on progress with consultation developments. Members were asked for their comments and suggestions on the content and questionnaire within the draft consultation paper which had been circulated previously. Members suggested that a question seeking views on the key messages should be included to reflect the addition of these principles in the draft code. Members recommended moving content to improve the flow of the consultation. A member highlighted that a check needs to be completed to ensure questions are open. The Panel were informed that this check has been completed. It was suggested that additional information on the aim of the code and Information Sharing Bill would be helpful in the introductory text of the consultation paper.
Members were satisfied with the consultation paper and content for the necessary requirements to proceed once their comments have been reflected and the code was ready.
- Secretariat will incorporate the Panel’s comments into the draft consultation paper and prepare the necessary requirements, so the paper is ready for publication
- Secretariat will support the Panel’s consultation support officer from the ALLIANCE in developing the privacy notice and impact assessments ahead of consultation commencement
Communications plan for stakeholder engagement
The Chair invited the communications manager from the GIRFEC Policy Team to update the Panel on the communications and engagement plan which members requested.
The Panel were updated on current progress on planning and were asked to agree the proposals. The Chair stated that the communications and engagement plan was extensive and asked the Panel for further views. Members suggested other engagement opportunities, venues and methods for engagement. Members agreed that including case studies and examples of information sharing in practice would be useful to practitioners and should be developed as part of the stakeholder engagement process.
The Chair informed the Panel that he remains committed to engage with groups who are opposed to the legislation and welcomes these groups to engage the consultation process.
Members highlighted the need for clear guidance from a practitioner’s perspective such as health visitors and family nurses, which provides information on how the named person works with these roles.
Members highlighted that the stakeholder engagement plan needs to support an honest dialogue with families and the wider community.
The Chair thanked the Panel for their contributions and sign off of the communications plan for stakeholder engagement.
Members discussed the presentations which members would give during the nationwide stakeholder enagement sessions. Maureen Falkoner indicated that due to the independent status of the ICO, she would be unable to engage in these presentations. Maria Galli confirmed she would refer the question to Juliet Harris, Together.
- Secretariat to update the communications plan for stakeholder engagement to reflect the Panel’s comments and events to be organised
- Secretariat to provide materials for members to use for stakeholder engagement during the consultation
GIRFEC Practice Development Panel
c/o Scottish Government
Children and Families Directorate
Telephone: 0300 244 4000 (0300 numbers are geographically neutral)