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Column 981Hardy, Peter
Home Robertson, John
Hughes, John (Coventry NE)
Jones, Martyn (Clwyd S W)
Lloyd, Tony (Stretford)
Mahon, Mrs Alice
Moonie, Dr Lewis
Pike, Peter L.
Roberts, Allan (Bootle)
Smith, Andrew (Oxford E)
Welsh, Andrew (Angus E)
Williams, Alan W. (Carm'then)
Wise, Mrs Audrey
Tellers for the Noes :
Mr. Michael Welsh and
Mr. Alan Meale.
Question accordingly agreed to.
Bill read a Second time and committed.
That the draft Access to Personal Files (Social Work) (Scotland) Regulations 1989, which were laid before this House on 16th January, be approved.
The Government have liberalised access to computer records by making orders under the Data Protection Act 1984. This measure was followed in 1987 by the Access to Personal Files Act, promoted by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), whom I am delighted to see in the Chamber. It made provision for access in a number of areas to records kept manually or in any other non-computerised form.
The Government gave a general commitment to develop access to personal information on manual records in certain areas in a controlled and evolutionary way. There must, however, be checks and balances in any access arrangements to ensure that individual rights are respected and that public -sector authorities can continue to discharge their legal responsibilities towards the people they serve. That is the basis upon which the range of measures we have in mind will proceed.
I will sketch in some steps we are taking on access to personal records in public sector services. The Government favour the principle that NHS patients have the right to see what has been written about them. We gave a commitment to this effect during the passage of the 1987 Act. We believe that what is needed is a voluntary code of practice on access to those records, and consultations have taken place on a United Kingdom basis with the relevant professional and other interests. No agreement has yet been reached. We strongly prefer the voluntary route, and I hope that the discussions will be concluded satisfactorily.
We have consulted widely on access to school pupil records and further education student records. We believe that parents should have a right of access to pupil records and that pupils or students over 16 should also have an independent right. Last year, our consultations on access in the further education sector showed general support for the Government's proposals. Before making regulations we will have to consider carefully a number of complex technical points raised by consultees. We will also want to take into account the results of separate consultations on school pupil records.
In December, we issued a consultative paper on access to housing records. Local authorities, new towns, the Scottish Special Housing Association, Scottish Homes, the Confederation of Scottish Local Authorities and other interested bodies have been consulted. The responses are currently being considered.
The present regulations apply the principle of access to social work records held by local authorities. The regulations should be brought into force on 1 April. Local authorities have been aware of our plans for some time and some have been working towards more open access as a matter of good professional practice. The proposed timetable will allow authorities to adjust their procedures and, where necessary, train staff. The regulations provide for access, subject to certain safeguards. Those safeguards reflect circumstances in which it would not be right to grant access to all the available information on
Column 983individuals. It should be exceptional for information to be withheld and, even where some is withheld, it should be possible to release most of the available information.
How will it work in practice? Following a request from an individual, a local authority will have to tell him whether it holds "personal information" about him and give him access to it. The definition of "personal information" in the 1987 Act includes expressions of opinion, but no indication of the intentions of the authority towards the individual.
The right to access may be satisfied either by supplying an individual with a copy of the personal information or by some other means, such as letting him see the information. If, however, the individual, having seen the information requires a copy of it, he must be given one. And, if any of the information is not intelligible without explanation, the individual is entitled to that explanation. Applications for access must be in writing. In addition, authorities will be able to charge a fee of up to £10 for giving access. Authorities should take account of an applicant's ability to pay. Authorities are not obliged to comply with an access request unless they receive the information necessary to establish the identity of the applicant and to locate the information he seeks. Where information on the record could lead to the identity of a third party being revealed or being identified as its source, the local authority must notify the third party within 14 days of receipt of a request for access and seek his consent to access being given. "Third party", in this context, does not include a health professional or someone employed by, or providing a service for reward to, the local authority. Authorities have 40 days from the date of receiving the request or obtaining the necessary further information or consent already referred to, to comply with it.
There are exemptions from the general provisions on access. Some of the information held may contain material provided by a health professional. The local authority will have to notify the health board or the health professional--if the individual is not employed by a health board--within 14 days of receiving the request. Where the health board or the health professional says that access should not be given to some or all of the information, the local authority cannot grant access. This would happen where access might cause serious harm to the physical or mental health of the individual or another person, or where access would let a third party be identified--other than a health professional. That also applies to information which comes from the reporter to the children's panel. The reporter's job depends on a free flow of information to him from the police and other agencies, including health professionals. The reporter will often have an interest in a child or children of families who are involved with those other agencies and where sensitive and confidential family issues are at stake. For example, the police may be pursuing criminal investigations against the parent of a child whose case is being examined by the reporter.
Over the years, reporters have built up good relationships with other agencies that have been prepared to share their information about families in order to help the reporter make the fullest assessment of a child's
Column 984situation. That relationship could be prejudiced if the social work department disclosed information inappropriately.
It seems sensible, therefore, to make the social work department get the reporter's approval to disclose any information which comes from him. The reporter must apply tests, including those of serious harm and identity of third parties, broadly similar to those required by social work authorities.
The local authority itself may withhold information in certain circumstances. Those include the risk of serious harm to the health or emotional condition of the individual or a third party. Withholding information on that ground would be exceptional. Local authorities cannot disclose information about or provided by third parties without their consent unless the information can be made anonymous. If the authority does not receive the third party's consent within the time limit, it must give access to as much information as possible without revealing the other person's identity or the fact that he is the source of the information.
Individuals can ask for their records to be changed if they feel that the personal information is wrong. Individuals can ask for a review by the local authority of any decision taken to withhold access completely or partially or where requests to change the records are rejected.
These regulations and the data protection orders provide individuals with comprehensive rights of access, subject to certain specified safeguards, to local authority social work records. They mark the first of a number of steps towards extending the area of service to which access to personal information will apply. I commend the regulations to the House.
Mr. Sam Galbraith (Strathkelvin and Bearsden) : First, I pay tribute to the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) for the Bill of which the regulations form a subsequent part. I was not in the House when that Bill passed through it, but I have read Hansard, from which it is clear that the hon. Member pursued the matter with considerable vigour and attention to detail. It is a tribute to the hon. Gentleman and to the House that the Bill is now on the statute book.
Turning to the regulations, I acknowledge the Minister's consultation with various parties before the draft circulars were prepared. However, I understand that there was some slight difficulty over the regulations applying to the reporters to the children's panels. I understand that those regulations were inserted at a later date. Today I received a representation from the reporter to the children's panel in Tayside, a Mr. Meek, who was worried whether the word "individual" should also apply to children who are also able to refuse the question on informed consent.
However, I welcome the consultation that took place before the regulations were produced. Because we agree broadly with the regulations, we shall not vote against them. We welcome them because, although considerable work will be involved, social workers agree that they will lead to better records and better decisions by social workers.
The more I read the regulations, the more I am impressed by their complexity. Social work records are
Column 985voluminous and extremely detailed. They contain a mixture of opinion and fact and a vast amount of third party information. The combination of those factors makes social work records difficult to open up widely to the public.
It is slightly incongruous that we are talking about social work records without also discussing medical case records, which are not so detailed. They are usually smaller and mostly factual, and rarely contain non-medical third-party opinions. It would be logical and easier for us to have discussed them in the first place. However, if copies of medical records had been made available to patients, many of the problems dealt with by the regulations would not exist, because the patients would already possess copies of the information.
Therefore, we should remain committed--as the Labour party is, and I am sure the hon. Member for Roxburgh and Berwickshire is--to opening up medical records as well. I shall be interested to hear what the Minister has to say about that. There are considerable parallels between the records we are discussing tonight and medical case records. We remain committed to that, but only after extensive consultation, and with the agreement of the medical profession ensuring all the necessary safeguards.
During the passage of this Bill, Ministers constantly came to the Dispatch Box and spoke of the discussions that they were having with the medical profession on this matter. Could the Minister let us know just how far they have gone? When the Access to Medical Reports Bill was being debated, the Minister said :
"The House will recall that, during the passage of what is now the Access to Personal Files Act in the previous Parliament, the Government gave an undertaking to enter into talks with the medical profession, with a view to achieving substantive and timely progress in opening up medical records on a non-statutory basis".--[ Official Report, 12 February 1988 ; Vol. 127, c. 665.]
Perhaps the Minister could let us know what progress has been made in these talks. Are we any further forward in opening up medical records on a non- statutory basis?
While we are talking tonight about social work records, I do not think that we can allow medical records to be taboo. If we are to give patients increased flexibility, greater choice and control over their medical care, they must have a copy of their own case records. On this subject, I echo the words of my hon. Friend the Member for Great Grimsby (Mr. Mitchell) who said in the debate on the Access to Personal Files Bill :
"In the field of health it is especially important to redress the odds that are presently in favour of the medical profession and turn them in favour of the consumer. This is part of the general idea of giving people power. They have power to choose as consumers and they want that power in all aspects of their lives. We have a duty to give them that power and that applies especially in medical matters"-- as I understand myself--
"where there is a kind of awe of the medical profession that can shelter incompetence and inadequacy."--[ Official Report, 20 February 1987 ; Vol. 110, c. 1197.]
We say, "Hear, hear," to these words.
Column 986I come now specifically to the regulations, although I will intertwine my comments on them with parallels on medical case records. I deal first with the charge of £10. The Minister and I will agree that, to both of us, £10 is probably not all that much. I thought I heard one of my hon. Friends at the back of me disagreeing. Really, though, £10 is not that much. The Minister knows that to a member of Muirfield golf club £10 would not be very much to ask. He will appreciate, however, that the sort of people who generally have social work records are often on income support ; and if one is on income support, a charge of £10 is excessive.
I realise that local authorities need not make that charge, and I think that Strathclyde will probably make no charge, but I should have preferred the £10 charge not to be part of this. There should be no financial barrier, no practical or theoretical barrier, in gaining access to one's files.
The lead-in time is rather short. This starts on 1 April. The Minister said that it will give time for the necessary training and preparation of new files. It may be true that there will be time, but there is also another area to be dealt with--discussion with other parties on the third party's access to the information. It has been the experience of social work departments that, when they go to other bodies such as the police or children's panels or health boards, those bodies are unaware of what is happening. It will take a considerable amount of time for them to pick up on all the regulations, and that will make the lead-in time rather short. We could have done with extending it a little further.
On the definition of "serious harm", I am glad to see my hon. Friend the Member for Aberdeen, South (Mr. Doran) who will perhaps, if he can catch your eye, Madam Deputy Speaker, give a lawyer's viewpoint on this question. It has been said to me that this will be of great benefit to the profession to which my hon. Friend belongs. It is difficult to decide what serious harm is, but I think that we could do with a slightly wider definition.
Access to the records could be prevented by that test. I know that from my own profession. In discussions about whether medical records should be opened up, someone almost always says, "It would be difficult to do that because it might produce serious harm in the patient." I always worry about that excuse. I have been practising for many years now and I cannot think of one case in which I could not have allowed access on the ground that to do so would have caused serious harm to the patient. I am not saying that that never happens in other specialties, although I should have thought that if serious harm occurred, it would have occurred in my specialty. I am not saying that we do not need safeguards : I merely say that, although the danger of serious harm is often used as a reason for refusing access to files in my profession, I could not have used it in the case of any of my patients. It would help if the Government could produce further guidance on what the definition of serious harm entails.
Social work records are complex and voluminous. They are full of opinions, often from third parties. That creates problems with the 40-day rule, which says that a social work department has to give a reply within 40 days. Certain difficulties will arise if a department has to consult third parties. Suppose that it consulted the health board and found that the consultant was away on holiday yet again. It would then take a considerable length of time to obtain his opinion. But under the regulations, if no reply
Column 987is given within 40 days, it is accepted that the information can be made available. Information may therefore be made available that the consultant would not have wished to be made available. The 40-day period may produce problems--although perhaps not insurmountable problems--and we should be considering it.
Let us consider the complexity of the process and the number of people who have to be involved. Let us take what is considered a simple social work case--a case of child abuse.
Mr. Galbraith : The diagnosis is simple, but from a social work point of view a child abuse case is probably the most complex type of case there is. Numerous third parties are involved, including the police force, a general practitioner, a community nurse, the procurator fiscal, a community health specialist, a health visitor, a district nurse and a voluntary organisation. All of them will have to be consulted and a review of all documents and registers will have to be carried out by the senior manager. A decision will have to be made on the basis of the serious harm criterion in the light of all that information. There will have to be counselling for the individual, to assist him in coming to terms with the information. There will have to be support for the staff, legal advice and the consideration of the possibility of appeal. That shows the complexity of what is involved.
That very complexity bears with it certain financial burdens, which will be thrown on social work departments--expenditure not just on training but on preparing the reports. When the Data Protection Act was introduced, there were very few requests, whereas in a three-month pilot scheme involving 11,000 records in Strathclyde social work department there were 22 requests. If we round that figure up over the year for complex cases, it means a cost to Strathclyde social work department of about £1.5 million--a considerable financial resource.
We do not know exactly what financial resource will be involved, because we do not know how many requests there will be ; there may be far fewer than in the pilot scheme, or there may be far more. The social work departments will monitor the costs. Will the Minister look favourably on any requests if it is found that the financial burdens are considerable?
I have raised some important points about the regulations, and I know that some of my hon. Friends will wish to consider them further. Nevertheless, we welcome the regulations--in the spirit of opening up information and giving individuals greater responsibility, and for the good of society as a whole.
Mr. Bill Walker (Tayside, North) : The hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) illustrated the complexity of this matter. I compliment my hon. Friend the Under-Secretary on again showing how good he is at consultation, discussion and negotiation before presenting regulations. He and I will agree that anyone who thinks that simply bringing in regulations will be a solution to this complex problem has made no attempt to study what is involved.
Column 988The hon. Member gave an honest and frank account of the position as he sees it. I do not disagree with anything he said. We all welcome the theory, but we have reservations about the practice. In the more complex cases, it will be very difficult to give the individual what he wants because of all the third parties who will be involved. By its very nature, social work involves many people. I have never been a champion of social workers. I have always felt that there are some things with which they should not be dealing. It is not their fault, but it has arisen because of the powers which Parliament has given to local authorities. We have created vast empires which are not always to the advantage of those in need.
I am not condemning social workers. Many of them are highly motivated, and we should understand the problems that they face at the sharp end. I have grave reservations about whether we are achieving what the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) initially wanted, but I welcome the fact that we are moving forward and that individuals may get access to more information which affects them personally. Hopefully, it will help people to come to terms with their problems. On that basis, I welcome the regulations. 11.47 pm
Dr. Norman A. Godman (Greenock and Port Glasgow) : In response to the hon. Member for Tayside, North (Mr. Walker), I would say that I have great trust in and respect for the overwhelming majority of social workers. They have to take on the burdens that others leave on their doorsteps. I say that not because I am married to a senior social worker who has on occasion had to take into care young children who have been subject to physical and/or sexual abuse. Social workers take their duties very seriously.
I welcome the regulations, but they are an appalling piece of work. The English is dreadful. Many of the paragraphs have to be read and re-read. Fortunately, a fairly useful explanatory note is attached. I should like definitive answers to problems that I have encountered. Under the heading "Exemptions from access to other information", regulation 10(3) refers to some information being withheld and the need in some cases to withhold information. I ask the Minister who is to be the censor where this information is concerned. Is it to be the social worker who has dealt with the applicant in the past or the manager of the department in which the social workers work? This one paragraph presents formidable problems for social workers. Another question concerns whether the information is always to be given to the applicant in documentary form. Can a social worker refuse to give information to a client who is well known to him or her and seeks information over the telephone or in a face-to-face interview in an office?
With regard to regulation 5, where another individual is concerned, I ask the Minister where a young person stands who makes an application at the local Department of Social Security office for income support because he or she has been driven from the family home by the violence inflicted on him or her, by parents or the partner of a parent, and the official requires evidence of the domestic state of affairs? What happens to that young person, who is presumably known to a social worker, when he or she seeks information to strengthen or substantiate a claim for
Column 989income support? In such a case, will the social worker have to approach the person who has inflicted or threatened to inflict violence upon that person seeking help?
Another example is that of the estranged couple where, say, the wife leaves the family home, again perhaps because of incidents involving domestic violence, and seeks help from the local housing department and the DSS office and is told that she needs evidence to support her application for assistance from these officials. In this case, will a social worker be allowed to approach the partner who has threatened violence? What will happen if, in a case like this, the violent partner refuses to co-operate with the social worker? What sanctions can a social worker impose on a third party who refuses to co-operate in cases of this kind?
I do not need to remind the Minister that such cases are not altogether rare in Scotland, I regret to say. These are important questions, particularly concerning the refusal of a named individual to consent to information being given to an applicant. I look forward to hearing the Minister's replies to these questions.