- 17 Jan 2019
Attendees and apologies
- Alan Small (representing Ann Houston) Child Protection Committees Scotland
- Brian Johnston, Police Scotland
- Chris Creegan, Scottish Commission for Learning Disability
- Joanna Murphy, National Parent Forum Scotland
- Paul Martin, Independent Chair for Child and Adult Protection Committee South Ayrshire Council
- Norma Shippin, Central Legal Office, NHS National Services Scotland
- Kenny Meechan, Glasgow City Council
- Susan Quinn, Educational Institute of Scotland
- Ann Houston, Child Protection Committees Scotland
- Annette Halliday, Unite/Community Practitioners and Health Visiting Association
- Mike Burns, Social Work Scotland
- Sally Ann Kelly, Coalition of Care and Support Providers in Scotland
- Juliet Harris, Together Scotland
- Jennifer King, Association of Directors of Education Scotland
- Lorna Greene, Royal College of Nursing
- Maureen Falconer, Information Commissioner’s Office
- Peter Hessett, Society of Local Authority Lawyers and Administrators in Scotland
- Eddie Docherty, Scottish Executive Nursing Directors
Items and actions
The Chair welcomed members and thanked the legal focus group for their report which was circulated ahead of the meeting. He then tabled a revision to the minute from 31 July meeting, this amendment reflects feedback received and the Panel agreed the amended minute.
Action: Secretariat to publish the amended minute on the Panel’s webpage.
Legal Focus Group report
The Chair invited Norma Shippin to take the Panel through the Legal Focus Group’s report. Ms Shippin summarised the report’s main findings, which were supported by members of the Legal Focus Group, as:
- it is challenging to develop a Code that is simple enough to be accessible but technical enough to meet the high legal bar required of a statutory code. This is because it needs to accurately and concisely reflect complex issues such as consent, interactions with ECHR, and treatment of special category data under the new data protection regime
- significant further work would be needed to bring the Code up to the level of detail that would be required of an authoritative and accessible statutory Code. In the Group’s view, reflecting this level of detail within this Code would add further layers of complexity for those looking to apply this in practice
- given that legal understanding of the implications of the GDPR and the DPA 2018 is still developing, and is largely untested, the Group considers there to be difficulties with producing a draft Code which is “authoritative” at this time
Ms Shippin explained that it will be difficult to create a Code of Practice that is accessible to all and user-friendly to apply in practice, while specifying the legal detail necessary to provide the required direction and safeguards. Such an approach would be acceptable at a legal level but not a practical one.
The Chair discussed his emerging views which he circulated to the Panel prior to this meeting. This reflected on the Panel’s work to date, including the Legal Focus Group’s report, and he proposed this paper could form the basis of the Panel’s update report to the Deputy First Minister. He asked members individually for their views on his paper.
Members felt that there was still a need to provide guidance and information on information sharing to parents and practitioners but agreed that there were a few options as to how to best achieve that. Other members reflected that practitioners are calling for clear advice and guidance on how to consider and share information appropriately. Given the report from the Legal Focus Group, there was doubt that a statutory code of practice would be sufficient. Chris Creegan stated that his key priority was accessibility and acknowledged the difficulties in developing a Code that is both accessible and user friendly given the complex legal direction necessary. Susan Quinn highlighted that the updated data protection law that has come into force since the Panel’s establishment may well mean that, once the guidance is available, the necessity for statutory duties and an associated Code to support GIRFEC information sharing no longer exists.
The Chair presented comments and feedback from Panel members who were absent. Present members agreed with these comments and agreed as a whole on the emerging views proposed within the Chair’s paper. All members, including those not present, agreed that:
- GDPR and the new Data Protection Act provide new and more explicit safeguards to support proportionate sharing of necessary information. Once clarified through forthcoming guidance and case law, these will assist information sharing practice;
- the refreshed GIRFEC Policy and practice guidance provides an opportunity to explain how information sharing practice could generally be delivered and sign post to relevant further guidance as appropriate; and
- explaining how different parts of law interact in a statutory Code would be detailed and complex and unlikely to be an easy read for practitioners or the public.
In view of this the Panel considered that:
- an overly complex Code of practice would not be user friendly and could inhibit good professional practice
- in light of recent changes to the legal landscape, the GDPR and the Data Protection Act 2018 could assist in providing the legal framework and necessary safeguards to support proportionate and necessary information sharing within a GIRFEC approach
The Group discussed how the new data protection law was more explicit about safeguards that support the legal sharing of proportionate information. However work is needed to explain how these safeguards will operate in relation to the Named Person Service. The Group also agreed that clearer guidance is required for practitioners.
The Chair informed the Panel that he had met with various groups to discuss the Panel’s work. He stated that many of these groups would argue that the legislation is not necessary. It is suggested that service organisation, relationships and delivery have developed significantly since the original 2012 consultation on the necessity for legislation in relation to Named Person. Further the new data protection law helps to both clarify when information can be shared while emphasising the safeguards to ensure that this is done legally. Members emphasised that no matter what the way forward is for legislation, guidance on information sharing for the workforce is essential. They highlighted that clear messaging will be important . The Chair concluded by referring to the lack of clear guidance on information sharing following commencement of new data protection law in May 2018 and the UK Government’s approach highlighting how this has impacted on the Panel’s work.
The Chair highlighted to the members that the Panel have been given the time and space to work through different approaches of the Code and engage with the relevant people allowing them to develop their emerging findings that he will report to the Deputy First Minister.
The Chair suggested to the members present that stakeholder engagement on the Panel’s emerging findings may be helpful to seek their views on these findings and wider views on what would be helpful in clarifying information sharing and supporting the embedding of the Getting it right for every child approach. Members of the Panel present supported this suggestion. He suggested that after this engagement the Panel would reflect on the output and explore its thinking further prior to providing a report to the Deputy First Minister. The Panel agreed and encouraged this to be completed early in 2019. The Chair asked supporting officials to draft an engagement framework for the Panel’s approval.
Action: Supporting officials to draft an engagement framework for the Panel’s approval.
The Chair suggested that consideration should also be given to a Panel report reflecting on all of the Panel’s work and key findings from engagement events that is written in way that is accessible and understandable for stakeholders and the wider public.
GIRFEC Practice Development Panel
c/o Scottish Government
Children and Families Directorate
Telephone: 0300 244 4000 (0300 numbers are geographically neutral)