3 The Panel’s approach to developing a Code of Practice
3.1 The Panel’s Approach
The Panel and its Legal Focus Group have met on a range of occasions since February 2018 to develop an authoritative draft Code of Practice for information sharing. Minutes of the meetings have been published, and progress updates have been provided to the Deputy First Minister, the Committee and Stakeholders, all of which can be found on the Panel’s website.
The Panel’s objective in drafting the Code was to explain how the provisions for sharing of information relating to children and young people, by or with the Named Person service or in connection with a Child’s Plan, should be lawfully applied in practice. The Panel felt it was important for the Code to bring consistency, clarity and coherence to the practice of sharing information about children and young people’s wellbeing across Scotland in a way that upholds the human rights of children, young people and their families.
The Panel also discussed recommendations in relation to Scottish Ministers issuing Statutory Guidance for Parts 4 and 5 of the 2014 Act and wider support materials. The Panel was of the view that these must be made to work for front line staff and parents, children and young people themselves.
The Panel considered different approaches to structuring and presenting the draft Code. It asked supporting officials to develop these suggestions for their consideration. Consequently, several iterations of the draft Code were produced as the Panel sought to produce a workable, comprehensive and user friendly Code. The Panel was also presented with different supporting materials such as flow charts, however this quickly proved impractical due to the number of factors that would need to be incorporated.
The Panel considered who the audience for the Code of practice would be and took the view that, no matter what form the Code, guidance and other support materials took, they needed collectively to provide:
- front line staff with the necessary confidence that information can be shared to support good practice in a legally compliant way; and
- parents, children and young people, with accessible and understandable information on their rights in relation to information sharing.
Ultimately, the Panel felt that, generally, practitioners should not be expected to deal with the legal technicalities of information sharing.
As has been historically the case, practitioners are supported and guided in working within and applying the law through organisational systems, polices, procedures, protocols, guidance and supervision. The Panel felt that the primary audience for the
Code should be Named Person service providers and responsible local authorities, as the data controllers and information governance leads.
The Panel also felt that additional work should be undertaken to make the Code as accessible as possible for secondary audiences.
To this end, it would be necessary for practitioner guidance to be provided to direct the application of the Code in practice. It was recognised at an early stage in the Panel’s considerations that if it was necessary for frontline practitioners to apply the Code then it would have to be written in a language that was accessible to all and be able to be applied easily in all situations.
It was further suggested that, in addition to the Code and Guidance, there would need to be supporting training materials to support learning and development. These materials should be aimed at front line staff and should also be available to rights holders.
3.3 Status of the Code
In light of the Supreme Court’s judgment, the Information Sharing Bill was designed to ensure that those with duties and powers related to sharing information under Parts 4 and 5 of the 2014 Act would be required to do so in accordance with a Code of Practice for Information Sharing .The purpose of the Code is to enhance the accessibility of the relevant legal rules, by pointing those exercising functions under Parts 4 and 5 of the 2014 Act to the rules which they must apply. As a result, this would mean that when information is shared with or by a Named Person service or in relation to a Child’s Plan, failure to comply with the legally binding Code would result in a failure to comply with the legislation.
It is the Panel’s view that the practical effect of this is that the Code needs to be drafted in quite a legalistic way in order to accurately set out the relevant legal rules that must be followed.
The other requirement of the Code was that it should be authoritative. There have been a number of challenges in achieving this -
- The EU General Data Protection Regulation (GDPR) and the majority of the Data Protection Act 2018 (“DPA 2018”) commenced on 25 May 2018. Legal understanding of the implications of this new legislation is still evolving and is untested by case law.
- Data protection is reserved legislation and we are still awaiting a position on these issues from the UK Government.
- The ICO is required by the DPA 2018 to prepare a “Data-sharing code”. This is to be a code of practice which will provide guidance on how the DPA 2018 (including UK provisions for GDPR) should be applied. This guidance has yet to be published.
Given these challenges there was a significant risk that the Panel’s interpretation of the current legal position could not be considered authoritative.
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