Getting it right for every child (GIRFEC) Practice Guidance 4 - Information sharing

14. Confidentiality

In addition to data protection laws, there is a common law duty of confidentiality when information, particularly sensitive information, is obtained in circumstances where the person confiding personal information would reasonably expect that it will be held in confidence (this may be express or implied). It applies only to information not already in the public domain.

If you are considering disclosing information that may be confidential you should consider:

• Does the information have the necessary “quality of confidence” - is the information confidential in nature?
• Was the information communicated in circumstances giving rise to an obligation of confidence? This may be expressed or implied from the circumstances.
• Is there an over-riding interest sufficient to outweigh the duty of confidentiality? For example, the welfare of the child or young person.

Unless the person to whom the confidential information has consented, you must only share sensitive and confidential information where the information sharing is necessary and proportionate. For example, where there is an over-riding interest which is so serious that it outweighs the duty of confidentiality – such as a safeguarding concern.

If the requirements for processing special category data and under ECHR Article 8 have been met (e.g. the information sharing is in the best interests of the child or young person and is proportionate, the minimum necessary etc.) then it is likely that the information sharing will not breach the common law duty of confidentiality.

Some professional regulatory bodies have codes of practice in place which explain the duty of confidentiality as applicable to their members.