3. CONFIDENTIALITY AND INFORMATION SHARING
Confidentiality is an important factor in enabling service users to engage confidently and honestly with agencies. Professionals should respect the need for other professionals and agencies to protect their relationship with their primary client and support the requirement to maintain confidentiality as far as possible. The protection of children is paramount. In most cases sharing this information should be based on informed consent by the patient or client. Where it is necessary to obtain informed consent, this should be obtained before sharing information. Obtaining consent is not a ‘one off’ event but is ongoing as part of the engagement with the client or patient.
Sharing information in a timely, proportionate and accurate way is an essential part of delivering better services to children and adults at risk of self harm. It can help to save lives. Practitioners at different agencies need to work together and share information appropriately for the safety and well-being of children and adults. It is important to understand and respect legislation and ethics surrounding the confidentiality and security of information.
Local agencies should have an agreed local Information Sharing multi-agency guidance. This should recognise the importance of early and effective intervention where there is a concern about any aspect of a child’s well-being. It should also be in line with National Guidance for Child Protection and local multi-agency adult protection arrangements, as appropriate. Staff should make themselves aware of the content of the multi-agency guidance and those produced by their own agency.
It is crucial to build trust with the service user and their family from the outset by clarifying issues and procedures surrounding confidentiality, consent and information sharing. Professionals should tell service users about the kinds of situations where they may have to share information. They should give some indication of why, and with whom, they may need to share information and ask in advance for their clients’ consent to sharing necessary information. This will save time, misunderstandings and potential conflict later.
Duty of care and confidentiality
Staff may be under a duty to breach confidentiality to protect someone who might be at risk due to their self-harming behaviour. The law recognises that in certain circumstances the duty of staff to the individual or third person is greater than the duty to respect confidentiality. Staff have a duty to act to protect people so that if a child or adult is at serious risk due to their self-harming behaviour then staff should notify the relevant authorities.
The Scottish Government’s National Guidance for Child Protection in Scotland 2010 (www.scotland.gov.uk/publications/2010/12/09134441/0) outlines some of the key principles around information sharing and child protection. If staff are concerned about the welfare of a child or young person due to their self-harming behaviour and/or other co-occurring behaviours then they have a duty to pass on that information, guided by what is justified, necessary and proportionate as a course of action. There are five questions staff need to ask themselves when they are concerned about a child or young person:
- What is getting in the way of this child or young person’s wellbeing?
- Do I have all the information I need to help this child or young person?
- What can I do now to help this child or young person?
- What can my agency do to help this child or young person?
- What additional help, if any, may be needed from others?
Impact of Human Rights Law and confidentiality
Human rights law recognises that staff must balance the risks and disadvantages of various courses of action. So, although Article 8 of the European Convention on Human Rights gives people a right to privacy it also allows for interference with that right in the interests of, among other things, the protection of health.
Adults lacking capacity and confidentiality
The law allows for the disclosure of information if there are compelling reasons for doing so. The Adults with Incapacity (Scotland) Act 2000 (the AWI) sets out the law on sharing information about adults with incapacity in certain contexts. Outwith the specific contexts in the AWI Act, these principles may be useful for staff to follow in the case where an adult is unable to consent to the sharing of information.
Children and young people and confidentiality
Everyone, including children and young people, has a right to confidentiality (see Article 8 of the European Convention on Human Rights). The individual level of a child or young person’s maturity will affect their ability to express a view or take decisions about issues of confidentiality and sharing information. There is a complex legislative landscape around a child’s ability to take decisions, but practitioners should always have regard to a child’s right under the United Nations Convention on the Rights of the Child (UNCRC) to express their views freely in all matters affecting them, and to have those views given due weight in accordance with their age and maturity. While a child is growing up, those with parental responsibilities - whether the child’s birth parents or others undertaking the parenting role - will require sufficient information to enable them to take certain decisions (for example medical decisions) on the child’s behalf, but as the child becomes older, he or she may wish to discuss matters with, for example, a teacher, social worker or health professional on a confidential basis.
Confidentiality becomes a difficult and relevant issue when a young person has a mental illness or learning disability and is self-harming. Any child or young person requiring support, whether from a single universal service or from several agencies, should have a plan to record that support which is co-ordinated by the Named Person and/or Lead Professional. A young person may wish to seek help without involving parents. Staff involved may consider the young person to be at risk and may feel the need to tell the parents. The right to confidentiality for children and young people, and for families, should be respected, while recognising that the duty to safeguard children comes first.
There are no clear cut and easy to follow legal or ethical answers in these circumstances and the judgement of staff will need to come into play. The law and guidance as set out below can only provide a framework for decision making in particular circumstances.
Child able to consent and make decisions regarding confidentiality
Staff and carers will generally respect a young person’s request to keep information confidential unless there are issues of risk. The child or young person should be at the centre, having their views listened to and being involved in decisions that affect them; there should be an integral role for children, young people and families in assessment planning and intervention. If the child’s mental health could be putting him or her at risk then an appropriate person may wish to discuss the options with carers. Staff or carers should not generally breach confidentiality unless they consider this is in the best interests of the child, or if there are wider public protection issues involved, which may affect third parties. When making these kinds of decisions, staff should have regard to the Age of Legal Capacity (Scotland) Act 1991 as well as to the UNCRC.
Child unable to consent and make decisions regarding confidentiality
When a young person is unable to take decisions regarding confidentiality, either because of lack of maturity or because of the seriousness of a mental illness or learning disability, then the child’s parents or those with parental rights and responsibilities will need to be informed and consulted as necessary to help them to make any decisions on behalf of the child.
A young person who is self-harming may also have a mental disorder, which may render him or her incapable of making decisions regarding confidentiality and the sharing of information, but may still request that the staff involved keep personal information confidential. In the first instance, such staff should try to persuade the young person to allow the sharing of necessary information.
If the young person refuses, the staff involved may disclose the relevant information to an appropriate person, if he or she considers it necessary to do so in the young person’s best interests. The child or young person - and their carers - should usually be actively involved, and the Named Person and Lead Professional should always be involved in making the decision; staff should consider involving an independent advocate or counsellor.
Where parents are carers
Where a child is at risk due to their self-harming behaviours and living at home, staff may have to consider whether parents need any information in order to help them care. A parent or guardian is entitled to information to the extent that he or she needs to perform their parental responsibilities. This approach should be extended to informal carers where there is a need for information to perform their care responsibilities.
Advice for staff on confidentiality and information sharing
Decisions about breaching confidentiality will ultimately be based on judgement and any applicable professional Codes of Conduct. As stated at the beginning of this document there should be local agreements in place for sharing information and all staff are referred to these. Further guidance is also available from professional bodies such as the General Medical Council or the Nursing and Midwifery Council, Scottish Social Services Council and British Association of Social Workers. The Mental Welfare Commission for Scotland can also provide advice around confidential discussions, which can be helpful when dealing with difficult cases or situations.
When dealing with child protection or adult protection cases, practitioners should also be alert to the potential impact of the case on family members, whether children or adults.
Email: Janet Megoran
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