Analysis Of Responses To The Consultation On Draft Statutory Guidance For Parts 4, 5 & 18 (Section 96) Of The Children And Young People (Scotland) Act 2014

This is a report on Analysis of Responses to the Consultation on Draft Statutory Guidance for Parts 4, 5 & 18 (Section 96) of the Children and Young People (Scotland) Act 2014.

10 Information Sharing

10.1 Section 10 of the draft guidance covers information sharing. Information sharing is integral to the operation of the Act and is referred to throughout the guidance. This section sets out guidance on the principles and practices to be followed in processing and sharing such information. Section 10 also contained guidance on seeking the views of the child in relation to information sharing. The guidance relates to Sections 23, 26 and 27 of the Act.

10.2 The consultation questionnaire included five questions on these sections of the guidance, which are each addressed below. There were, however, a range of general points raised in response to all the questions on information sharing, and these are summarised in a preliminary section below and are not repeated at any length in relation to individual questions.

General points on the presentation of the guidance on information sharing

10.3 Respondents offered a range of general points and concerns about the guidance in this area. In particular they stressed that:

  • This is a complex and specialist area which was likely to come under scrutiny, and staff had to be confident in carrying out their duties. Staff (Named Persons and others) needed robust practice guidance, training, and access to specialist advice.
  • Good practice in relation to storing and handling of information, and recording of decisions in relation to data sharing was essential (and current practice could not be assumed to be good).

10.4 There were widespread comments from all sectors that these sections of the guidance lacked clarity. The guidance was described as 'the hardest section to access'. Respondents wished these sections to be simplified. The headings were thought to be confusing, and the cross-referencing was difficult to follow.

10.5 Respondents also commented that the guidance offered general principles only, and had very little to offer by way of practical help.

Q18: Information sharing when there are wellbeing concerns

10.6 Question 18 in the consultation document asked 'Is the draft guidance on these sections clear on requirements in relation to consideration and sharing of relevant and proportionate information when there are wellbeing concerns?' Table 10.1 shows that 47% of organisations and 10% of individuals agreed, while 53% of organisations and 90% of individuals disagreed.

Table 10.1: Question 18

Yes No Total
Respondent type n % n % n %
Local authorities 8 (50%) 8 (50%) 16 (100%)
Health organisations 7 (44%) 9 (56%) 16 (100%)
Partnership bodies and joint responses 9 (60%) 6 (40%) 15 (100%)
Other national public sector bodies 3 (60%) 2 (40%) 5 (100%)
Third sector organisations 8 (42%) 11 (58%) 19 (100%)
Professional groups 4 (36%) 7 (64%) 11 (100%)
Other organisational respondents 3 (38%) 5 (63%) 8 (100%)
Total organisations* 42 (47%) 48 (53%) 90 (100%)
Individual respondents 3 (10%) 27 (90%) 30 (100%)

* Two respondents ticked both 'yes' and 'no'. These responses are not included in the table.

Percentages do not all total 100% due to rounding.

10.7 Organisational subgroups were largely divided in their views about whether this section of the guidance was clear. Partnership bodies and other national public sector bodies were most likely to say it was; while professional groups and other organisational respondents were most likely to say it was not.

10.8 Altogether, 114 respondents (94 organisations and 20 individuals) made comments in relation to Question 18.

Aspects of the guidance that respondents found helpful

10.9 Those commenting positively on the guidance did so on a general level or specifically welcomed the links to the Data Protection Act (DPA) and the requirement to comply with DPA principles.

10.10 Respondents highlighted issues which they thought needed clarification or additional guidance, and also raised wider points for consideration.

Issues requiring clarification or additional guidance

10.11 Respondents raised a series of specific areas where clarification or additional guidance was required. There were many requests for detailed practitioner guidance, more local guidance, and some national guidance. It was suggested that practitioner guidance should be developed separately for each key professional group, and that there should be information-sharing protocols developed between health professionals, schools (including independent schools) and the third sector.

10.12 More detail was requested on when and how information should be shared with the Named Person. Respondents wanted to know: what should be shared with the Named Person; when information should be shared with the Named Person and when it should be shared with the Named Person service; and when 'third party' information should be disclosed to the Named Person.

10.13 More clarity was requested about information sharing at points of transition. This might be when the Named Person service changed, or when there was a life transition for the child (for example from primary to secondary school).

10.14 More clarity and guidance was requested in relation to confidentiality. There were requests for greater clarity in relation to sharing information: with the wider family; in a highly local context (e.g. small rural settings); if it was of a confidential nature (e.g. health related); where information had been disclosed to third sector organisations with an understanding that it would not be shared further. There were concerns about potential breaches of privacy.

10.15 More guidance was also requested in relation to the use of secure (shared) systems. In particular:

  • How long would information be stored? How would it be audited?
  • How would the destruction / removal of stored information be arranged?
  • Who would be the Data Controller?
  • How does this guidance link to the Public Records Act?
  • When is a decision to override Article 8 and share information justified?

Other issues / suggestions / more general comments

10.16 Respondents raised the issue of consistency, and queried how this could be achieved. It was thought that terms such as 'relevant and proportionate' and 'likely to be relevant' were open to interpretation. Some respondents felt these terms gave too much power and discretion to the Named Person.

10.17 Respondents thought that there was a lot of difficulty inherent in overcoming the organisational barriers relating to data protection and information governance. These currently act to inhibit smooth transitions and it was not clear how these would be resolved.

10.18 There were a few comments to the effect that this guidance was in conflict with other guidance and legislation. In particular, a potential conflict with child protection guidance, and with DPA, UNCRC and ECHR were identified.

10.19 Wider concerns about the Act were expressed. These highlighted the difficulties of defining wellbeing, the potential breaches of the DPA, the undesirability of taking power away from parents, the disregard for confidentiality, the lack of proportion in the measures, the amount of discretion given to the Named Person, and the lack of a scientific rationale for the Act.

Views from individual respondents

10.20 In general, individuals who commented on this section were opposed to the Act, and the points they raised are discussed in paragraph 10.19 above.

Q19: The arrangements that authorities will need to put in place

10.21 Question 19 asked: 'Does the draft guidance make clear the arrangements and processes that authorities will need to put in place to facilitate and support the consideration and sharing of relevant and proportionate information?' Table 10.2 shows that 54% of organisations and 16% of individuals agreed, while 46% of organisations and 84% of individuals disagreed.

Table 10.2: Question 19

Yes No Total
Respondent type n % n % n %
Local authorities 8 (57%) 6 (43%) 14 (100%)
Health organisations 11 (73%) 4 (27%) 15 (100%)
Partnership bodies and joint responses 8 (53%) 7 (47%) 15 (100%)
Other national public sector bodies 3 (60%) 2 (40%) 5 (100%)
Third sector organisations 9 (47%) 10 (53%) 19 (100%)
Professional groups 4 (40%) 6 (60%) 10 (100%)
Other organisational respondents 3 (43%) 4 (57%) 7 (100%)
Total organisations* 46 (54%) 39 (46%) 85 (100%)
Individual respondents 4 (16%) 21 (84%) 25 (100%)

* One respondent ticked both 'yes' and 'no'. This response is not included in the table.

Percentages do not all total 100% due to rounding.

10.22 In general, organisational respondents were divided in their views on this question. However, health organisations were more likely than other organisational respondents to agree.

10.23 Altogether, 84 respondents (74 organisations and 10 individuals) made comments at Question 19.

Aspects of the guidance respondents found helpful

10.24 A few respondents commented that (some aspect of) the guidance was clear. There were no clear patterns in the positive comments offered; each one was individual. However, the point was made that, while the principles in this area were easy (and by implication the guidance on the principles was straightforward), practice itself in this area was complex.

Overall comments on the (clarity of) the guidance

10.25 Respondents often went on to make further comments. For the most part, only specific points were offered; this was because respondents commented that: a) their comments in relation to this question had already been included at Question 18, or b) that the guidance needed to be generally clearer.

Specific comments on the guidance

10.26 As far as comments specifically relating to Question 19 were concerned, the largest number of comments concerned the (lack of) compatibility of IT systems and processes, the challenges presented by electronic data sharing across different systems, and the need for more infrastructure support to address this. It was pointed out that systems were already in place and that these required to be reviewed, rather than developed from scratch.

Views from individual respondents

10.27 The comments from individuals were often cast in negative terms, and focused on opposition to the Act as a whole. Where the individual comments were more directly focused on the question, they emphasised the importance of absolute clarity of the guidance in every aspect, given the potentially controversial nature of the information-sharing arrangements. Comments covered: the accountability of the Named Person; ensuring the provisions of the DPA were adhered to; setting out safeguards to protect privacy; and the question of redress where something goes wrong.

Q20: Meeting the requirements of the Data Protection Act and European Convention on Human Rights

10.28 The DPA provides the overall legal framework for data handling under the Act, while consideration of the ECHR should inform individual information-sharing decisions. This is covered in Section 10 of the guidance, with further detail provided in an annex, and via appropriate web links.

10.29 Question 20 in the consultation document asked, 'Does the draft guidance make clear that the sharing of relevant and proportionate information under this Act must meet the requirements of the Data Protection Act 1998 and the European Convention of Human Rights?' Table 10.3 shows that 77% of organisations and 12% of individuals agreed, while 23% of organisations and 88% of individuals disagreed.

Table 10.3: Question 20

Yes No Total
Respondent type n % n % n %
Local authorities 12 (75%) 4 (25%) 16 (100%)
Health organisations 15 (94%) 1 (6%) 16 (100%)
Partnership bodies and joint responses 10 (67%) 5 (33%) 15 (100%)
Other national public sector bodies 4 (80%) 1 (20%) 5 (100%)
Third sector organisations 14 (78%) 4 (22%) 18 (100%)
Professional groups 8 (80%) 2 (20%) 10 (100%)
Other organisational respondents 5 (63%) 3 (38%) 8 (100%)
Total organisations 68 (77%) 20 (23%) 88 (100%)
Individual respondents 3 (12%) 23 (88%) 26 (100%)

Percentages do not all total 100% due to rounding.

10.30 A majority of organisations in each category agreed that the guidance was clear on the need to meet the requirements of the DPA and ECHR. Health organisations were most likely to agree (94%), while 'other' organisations were least likely to agree (63%).

10.31 Altogether, 75 respondents (60 organisations and 15 individuals) made comments.

Aspects of the guidance respondents found helpful

10.32 Those commenting positively on the guidance highlighted the attention given to recording of decisions relating to information sharing, confidentiality and the voice of the child as well as the additional information contained in the related Appendix as being particularly helpful. Some of those who thought the guidance clear and / or helpful nevertheless acknowledged this as a difficult area and emphasised the need for guidance aimed at practitioners.

Aspects requiring clarification or more guidance

10.33 Respondents called for clarity or more guidance on issues including:

  • Situations where consent to information sharing is refused, and circumstances justifying breaching confidentiality or not seeking consent
  • Handover of routine information at transition points
  • Working with 16 to 18 year olds
  • The use of DPA exemptions relating to the prevention of crime and prejudicing criminal investigations and proceedings
  • Distinguishing between information held by an organisation as a result of Named Person duties and information held for other reasons.

10.34 There were also many other comments of a general nature which related to the need for clarity on balancing the Act's objectives of promoting the child's best interests with meeting the requirement of the DPA and ECHR.

General comments and concerns

10.35 As well as the specific points noted above, respondents also suggested that the guidance needed to include more context relating to the wider policy framework, conventions and legislation and fuller explanations of its relevance and interpretation (in general and in relation to specific points). Reference was made to the Human Rights Act, ECHR, and UNCRC, the DPA and Information Commissioner's Code of Practice.

10.36 A small number of respondents argued that the Act and related guidance did not comply with the DPA or ECHR in relation to data sharing.

Views of individual respondents

10.37 Individuals had significant concerns about data sharing, and this was reflected in their comments at Question 20 which can be summarised as follows:

  • The Act and guidance over-rode the rights of parents and families and did not represent a correct interpretation of the DPA or ECHR.
  • The thresholds for data sharing were too low, and there were insufficient safeguards to ensure data was properly protected.
  • More guidance and oversight was required for those implementing the Act to ensure the DPA and ECHR were adhered to.

Q21: Managing and sharing information where there is a duty of confidentiality

10.38 Sections 23 and 27 of the Act make provision for the sharing of information under particular circumstances where a duty of confidentiality exists. Specific guidance was provided on this within Section 10 of the statutory guidance, and Question 21 asked: 'Does the draft guidance make clear the arrangements for managing and sharing information when duties of confidentiality are a consideration?' Table 10.4 shows that 66% of organisations and 3% of individuals said 'yes', while 34% of organisations and 97% of individuals said 'no'.

Table 10.4: Question 21

Yes No Total
Respondent type n % n % n %
Local authorities 10 (63%) 6 (38%) 16 (100%)
Health organisations 9 (56%) 7 (44%) 16 (100%)
Partnership bodies and joint responses 10 (67%) 5 (33%) 15 (100%)
Other national public sector bodies 5 (100%) 0 (0%) 5 (100%)
Third sector organisations 11 (69%) 5 (31%) 16 (100%)
Professional groups 5 (63%) 3 (38%) 8 (100%)
Other organisational respondents 4 (67%) 2 (33%) 6 (100%)
Total organisations* 54 (66%) 28 (34%) 82 (100%)
Individual respondents 1 (3%) 30 (97%) 31 (100%)

* One respondent ticked both 'yes' and 'no'. This response is not included in the table.

Percentages do not all total 100% due to rounding.

10.39 A majority of all types of organisation agreed that arrangements were clear, although levels of agreement varied. All those representing other national public sector bodies agreed in contrast just over half of health organisations.

10.40 Altogether, 101 respondents (81 organisations and 20 individuals) made comments.

Aspects of the guidance respondents found helpful

10.41 Those commenting positively on the guidance welcomed the wellbeing threshold for information sharing and the attention given to the 'tests' for breaching confidentiality. They also thought the references to transition points, confidentiality as the 'default position' and the emphasis on seeking children's views were helpful.

Areas needing clarity or further guidance

10.42 Respondents called for further guidance on seeking and taking account of the views of children and parents, the threshold for sharing information without consent and balancing the principle of confidentiality with ensuring the wellbeing of the child. Respondents felt that the guidance should give greater prominence to the fact that the Act allowed confidentiality to be breached based on the judgement of the Named Person.

10.43 Respondents identified a number of specific situations which they thought raised particular issues and which would benefit from further clarification. These included: situations where there were child protection concerns; working with 16 to 18 year olds; handover of data at transition points; accessing archived information; sharing information related to parents; situations where the views of the child but not the parents might be sought; situations involving criminal proceedings; and responding to Freedom of Information requests.

10.44 Respondents also thought that guidance was needed on recording and sharing practitioner notes; sharing only directly relevant information; sharing information in multi-agency settings and with third sector partners; and evidencing and recording decisions on breaches of confidentiality.

10.45 At a general level, respondents often recognised this was a complex area. And called for the inclusion of specific scenarios and examples (e.g. relating to health or education settings). Some suggested the guidance could be improved by giving it more prominence, and presenting the relevant information in one place.

10.46 Respondents also noted the importance of ensuring that parents and children understood the legislation and guidance on confidentiality.

Other comments

10.47 A few respondents raised notes of caution about sharing information when there were confidentiality considerations, and made the following points:

  • Confidentiality could be important in creating trust and safe boundaries.
  • Sharing data in breach of confidence should be a 'last resort'.
  • There would continue to be an unresolved tension between the provisions of the Act and professional codes of conduct.

Views from individual respondents

10.48 Comments from individuals largely focused on the statements at 10.2.14. They were concerned that the guidance gave too little weight to the views of parents, was too subjective and that the wellbeing threshold was too low. They argued that the guidance went beyond the legislation and undermined the role of parents. They called for clear guidance on the grounds for over-riding or excluding parents from information-sharing decisions.

10.49 Individuals also expressed concern about security of confidential information.

Q22: The arrangements for considering the views of the child

10.50 Question 22 focused on paragraphs 10.3.3 - 10.3.4 of the guidance and asked: 'Are the arrangements set out for considering the views of the child clear?' Table 10.5 shows that 69% of organisations and 27% of individuals agreed, while 31% of organisations and 73% of individuals disagreed.

Table 10.5: Question 22

Yes No Total
Respondent type n % n % n %
Local authorities 13 (81%) 3 (19%) 16 (100%)
Health organisations 14 (88%) 2 (13%) 16 (100%)
Partnership bodies and joint responses 11 (73%) 4 (27%) 15 (100%)
Other national public sector bodies 5 (100%) 0 (0%) 5 (100%)
Third sector organisations 10 (45%) 12 (55%) 22 (100%)
Professional groups 8 (73%) 3 (27%) 11 (100%)
Other organisational respondents 3 (38%) 5 (63%) 8 (100%)
Total organisations 64 (69%) 29 (31%) 93 (100%)
Individual respondents 7 (27%) 19 (73%) 26 (100%)

Percentages do not all total 100% due to rounding.

10.51 Third sector organisations and 'other organisational respondents' were less likely than other organisational subgroups to say the guidance was clear.

10.52 Altogether, 93 respondents (80 organisations and 13 individuals) made comments in relation to Question 22.

10.53 Respondents offering positive comments on the clarity and helpfulness of the guidance highlighted aspects such as a) the arrangements for sharing information (including when information is NOT shared) b) the mention of children with communication difficulties and the importance of consulting them and c) the proposal for a consultation on a complaints procedure.

Issues requiring clarification or additional guidance

10.54 Respondents highlighted issues which they thought needed clarification or additional guidance, as set out below.

How should children's views be obtained?

10.55 Respondents thought that whilst the guidance was clear that children's views should be obtained, there was no guidance about how this should be done, especially for young children or those with complex needs. Some (mainly third sector) organisations provided some information and details about how this should be done, using assistive technologies and creative approaches.

Children and young people with communication difficulties or other disability

10.56 Respondents emphasised the importance of obtaining views from all children and young people, including those with a communication difficulty or other disability. It was thought that the guidance should make clear the expectation that all these individuals should have their voices heard.

10.57 The phrase 'reasonably practicable' was not thought to be appropriate in this context; the requirement for this to happen needed to be made in stronger terms. Respondents also wished the guidance to include statements about the level of support which would be available to enable this to happen; they did not think it was acceptable that this should depend on the availability of resources. The importance of ensuring that the guidance was consistent with other legislation, particularly Articles 12, 16 of the UNCRC was highlighted.

10.58 Respondents also wished there to be a requirement set out in the guidance for a clear written account to be kept of what steps were taken to ensure the views of these individuals were heard.

Sharing information

10.59 A range of comments was made about particular situations where the requirement for sharing of information needed further clarification. For example: where the child does not want to share their views - either with the Named Person or the parent; whether it was the Named Person who would make the judgement about whether information was shared; where situations of domestic abuse or a criminal investigation were involved.

10.60 More detail was requested on the timescales for retaining shared information.

Other issues / suggestions / more general comments

10.61 Respondents highlighted wider issues for consideration as noted below.

10.62 A range of respondents highlighted the importance that ascertaining and recording the views of the children needed to be seen as the default position; this should not be done only in rare and exceptional circumstances. In particular it was emphasised that there should be a strong expectation that the views of children with disabilities should have their views heard.

10.63 Respondents across different organisational groups queried the assertion that 'whether the child has the capacity to make decisions is ultimately a matter of professional judgement'. It was suggested by professional organisations that this should be reworded as 'whether the child has the capacity to make decisions can reliably be judged by reference to an up-to-date evidence-based profile of the child or young person's communication capacity'.

10.64 It was suggested that guidance needed to be developed in relation to a process for allowing individuals the right to challenge information held about them. This might involve some form of independent arbitration process. Guidance was also required in relation to the legal rights of 16 to18 year olds in relation to decision making. The situation for the group was described as 'complex' and the omission of any guidance in this area was described as 'significant'. The arrangements for the provision of staff training, and the availability of resources for this purpose, also needed to be discussed.

10.65 Some respondents commented that the differentiation between 'children' and 'young people' was not clear or consistent throughout guidance.

Views from individual respondents

10.66 Some individuals commented about their wider concerns with the Act, and its impacts. For those who discussed the question as posed, questions were raised about the complexity of the language, the importance of obtaining consent except in extreme situations, the perceived lack of expertise in communicating with children, and the powers of the Named Person (which were implied to be too wide ranging). Two individuals highlighted the positive references to engaging with children who have communication difficulties.


Email: Richard Kaura

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