Memorandum submitted by the Information
Commissioner
INFORMATION SHARING DATABASES IN CHILDREN'S
SERVICES: CONSULTATION ON RECORDING PRACTITIONER DETAILS FOR POTENTIALLY
SENSITIVE SERVICES AND RECORDING CONCERN ABOUT A CHILD OR YOUNG
PERSON
INTRODUCTION
1. The Information Commissioner is responding
to this consultation as the regulator for the Data Protection
Act 1998, Freedom of Information Act 2000, and subordinate legislation.
2. He does not require this response to
be kept confidential
SUMMARY
3. The Information Commissioner welcomes
the Government's moves to address issues raised during the passage
of the Children Bill through Parliament in respect of the need
to restrict access to certain contact details on the proposed
children databases. However, the Commissioner is concerned that:
4.
— the proposed access options may not
totally address privacy concerns children and parents might have,
and could be operationally difficult to implement;
— the consultation proposals in respect
of the use of "cause for concern" indicators could lead
to excessive information being held; and
— he has continuing concerns about
the difficulties in keeping the databases secure and up to date.
5. The databases as originally envisaged
by the Government are ones in which the contact details of all
child care practitioners with an interest in a specific child
are entered on a database. Any practitioner who has an interest
in that child can access all of these contacts. That is, in terms
of this consultation, option 1 in conjunction with option A.
6. The aims of such universal databases
are to allow practitioners to:
— identify quickly a child with whom
they have contact;
— identify whether that child is getting
the universal services (education, primary health care) to which
he or she is entitled; and
— identify needs earlier and take earlier
and more effective action to address them by enabling them to
identify who else is involved with or has a concern about a child.
7. However, as recognised, such databases
can lead to sensitive personal data relating to children being
accessible to a wide range of practitioners who might not need
such access. Therefore a child's fears about privacy might deter
or delay them from accessing vital services. The databases as
originally envisaged in effect remove professional judgement and
consent from decisions as to who can have access to specific and
sensitive contact information.
8. The options presented by the Government
in this consultation restrict by various means the contact information
which actually goes on the databases, and also restricts those
who can access such information.
9. The Government's preferred option is
option 2 in conjunction with a mixture of options A, B and C.
That is, for contact information to be placed on the database
if the child or their parent consents, or if the practitioner
judges it in the best interests of the child to have their contact
details on the database. Certain targeted and specialist practitioners
would then have access to all the contact information on the database,
but only essential practitioners would have access to contact
information relating to contacts in the area of sexual health.
10. In theory this seems reasonable, adding
back an element of professional judgement and consent into the
process. However there are problems in that:
— administering what may be multiple
consent options across many organisations (which can be changed
at any time) will be operationally complex;
— it may well be difficult to explain
to children and their parents the implications of what they are
consenting to;
— consent might not be straight forward
to obtain when children disagree with parents, and may need to
be checked regularly;
— it is difficult to see the benefits
for practitioners from the databases containing contact information
on the basis of consent; and
— in restricting information on the
databases and access to this information it has to be a concern
that the databases will not meet the intended aims.
11. Given that the Government has moved
from the idea of a universal database open to all practitioners,
there is an alternative which would seem to address the privacy
issues. This is to restrict the database to only those children
about whom concerns have been expressed; ie option 2 (without
the consent element) in conjunction with Option A. Such a database
would:
— allow practitioners to register their
interest in a child about whom they have concerns, and allow them
to identify others who have a concern;
— the privacy of the child is respected
as contact information is only shared if a practitioner judges
it to be in the interests of the child;
— the administrative burden of setting
up and maintaining a universal database of 11 million children
is removed; and
— the need for flags of concern would
be removed.
12. However, if the database is not to be
so targeted and flags of concern are to be included, the Information
Commissioner does have concerns about the preferred options stated
in the consultation as to how the flags are to work.
— The Commissioner is not convinced
that three different flags all with the same resulting action
are justified. If flags are to be used and are simply to indicate
that that practitioner wishes to be contacted by other practitioners
in contact with a child, then one flag is surely all that is required?
— The Commissioner also does not consider
that closed concern flags should be retained on the system even
for a short time. It serves no purpose.
— There needs to be clear and agreed
standards as to what circumstances will trigger a flag, as professional
judgement may well be highly variable and would lead to inconsistencies.
13. In respect of security, the Information
Commissioner notes the commitment to security given within the
consultation document. However access to potentially very powerful
databases will have to be carefully managed across multiple professions
and organisations to ensure security. This will be extremely challenging,
but is essential. The Information Commissioner is disturbed—and
is not at all reassured—that reliance on a mother's maiden
name should even be contemplated as a safeguard.
14. Keeping the information up-to-date will
be equally—perhaps more—difficult. The Commissioner
notes the intention to build on the experience of the Pilots and
ensure that practitioners keep their records up to date. But doing
so will take up resources and does nothing to tackle the fact
that children and their parents might not themselves up-date practitioners
they are involved with as to changes of address and other circumstances.
For example a family moves house and remains registered with the
same GP but does not notify him of the change. In practice then
it might be difficult to ensure records are accurate and up-to
date.
15. Breaches of security and failures to
keep records up to date could impact severely on individuals.
They could quickly undermine the confidence of both professionals
and the public in these arrangements and bring them into disrepute.
They will also represent failures to comply with the provisions
of the Data Protection Act. If these occur, and people are adversely
affected, the Information Commissioner would actively have to
consider enforcement action against the responsible bodies, to
seek to ensure future compliance with the Act.
ANALYSIS OF
OPTIONS
How practitioners working in children's services
which may be regarded as sensitive, should record their involvement
on the database with a child or young person.
Option 1—details of all practitioners
will be placed on the database and will be available to all.
16. This option, in conjunction with Option
A (that information would be visible to all users that are able
to access that child's record), is essentially the universal databases
as originally envisaged by the Government. As recognised by the
Government this could lead to sensitive personal data about children
being available to practitioners who do not need it, and in consequence,
to children being deterred from accessing vital services because
of concerns about privacy.
17. Option 1 in conjunction with Option
B restricts those practitioners who can access the contact information
to those deemed by regulations to be "essential". Such
an approach still leaves open the possibility that practitioners
may have access to information about children where such access
is not strictly necessary. And hence fears that a child might
have about their privacy may not necessarily be removed. It also
does not allow "non-essential" practitioners to identify
quickly who else is involved with, or has a concern about, a child.
Two of the three stated aims for the databases do not therefore
seem to be met.
18. Option 1 in conjunction with Option
C allows access to essential practitioners and also to those specified
by the child or their parent. So that when a child first comes
into contact with a service, the practitioner will ask for consent
to allow other specified practitioners (either now or in the future)
access to details of his contact with the child.
19. In general the Information Commissioner
welcomes the use of consent when questions arise as to whether
or not information can be shared. But in this case he is unsure
as to the value of having contacts on the database on the basis
of consent. In effect the child or their parent will, as now,
be advising practitioners as to what services they are already
accessing. That is if they want to. And there will be an operational
impact. Children and their parents will have to be advised as
to what they are consenting to, any consent given has to be recorded
accurately on both the practitioner's system and on the database
and be acted upon, and the systems also have to cope with the
removal of consent at any time.
20. Additionally consent cannot be assumed
to be open ended. The parent of a 10 year old child might consent
to a particular contact being accessible on the database but at
the age of 16 the child might not. Mechanisms will need to be
in place to check that consent is still on-going at various intervals.
21. There may also be conflict between parents
and children as to whether or not consent is given. And whether
the views of the parent or the child win will depend on the age
of the child, and the particular circumstances of each case. Obviously
in most cases the child will acquiesce to the parent's wishes
but practitioners will need to be alive to the possibility that
in some cases there may be conflict and professional judgement
will have to be used. Consent might not therefore be straight
forward.
Option 2—details of practitioners are
placed on the database if the child/carer consents or if it is
in the professional judgement of the practitioner that the details
should be on the database irrespective of any consent.
22. This option puts professional judgement
back into decisions relating to the disclosure of information
about contacts to other practitioners. Options B and C (in conjunction
with option 2) limit the access to this information:
— in option B to only essential practitioners;
and
— in option C to essential practitioners
and to those specified by the child or their parents.
23. Considering option B first; in theory
it does seem sensible to only allow access to contact details
where the child or their parent agree or where the professional
judgement is such that it is in the best interests of the child
to do so. However, in practice, implementation of multiple consent
options may well be difficult, and would, as recognised in the
consultation paper, be likely to exclude the most vulnerable children.
Those who do not want to cooperate with practitioners, or who
distrust practitioners, will not consent to disclosures of their
contacts.
24. Operationally what seems to be envisaged
is that on first contact with a service the practitioner will
seek consent for adding their contact onto the database. In doing
so the practitioner will have to advise the child and their parents
as to the purpose of the database, who might have access to information
on it (either now or in the future), and of the fact that, if
circumstances warrant, the practitioner will place the contact
details on the database anyway.
25. Mechanisms will need to be in place
to act on the withdrawal of consent, to make sure consent is still
valid at regular intervals, and to help practitioners make decisions
on consent where the child and parent disagrees.
26. Complicating the position further, under
option C the practitioner will also seek consent for any contact
details actually placed in the database to be accessible to specified
practitioners, again either now or in the future. It may be that
if children and parents are provided with complicated consent
options they do not fully understand, they actually withhold consent
in cases where they have no actual concerns.
27. On top of this the concerns about consent
referred to above in respect of option 1C will also apply here.
28. In general therefore whilst variations
of option 2 do re-introduce professional judgement and consent
back into the process, the Information Commissioner finds it difficult
to identify the benefits for practitioners from allowing access
to the database on the basis of consent, and he is concerned that
operationally the seeking of and acting upon consent will not
be straight forward.
29. These problems, and any privacy concerns,
are removed however if the databases are solely targeted at those
children about whom the practitioners have concerns. That is when
the practitioner judges it in the best interests of the child
to make available his contact details with the child to other
practitioners.
30. The database would then consist solely
of children about whom a particular practitioner has concerns.
So when a practitioner is involved with a child and considers
that it is in the best interests of the child for other practitioners
to know about his involvement, he registers the child's details
on the database along with his contact details. Other practitioners
who become, involved with the child and have similar concerns
will themselves access the database to register their contact,
and in the process view any other contacts. They will then be
able to talk to each other about the child.
31. Such a database would not identify those
children who were not in contact with the universal services of
education and health, but does allow practitioners to register
concerns and allow those who share those concerns to identify
each other if they have not already done so by other means. In
the process any privacy fears for children are removed and the
administrative burden of setting up and maintaining a database
of 11 million children is removed. And additionally there is no
need for flags of concern to trigger the sharing of information
as it is only children about whom there are concerns who are placed
on the database.
Option 3—details of practitioners would
not be placed on the database.
32. This option would essentially make the
database a means of ensuring that children are getting the universal
services of education and health and would remove two of the three
aims for the databases as stated by the Government above, that
is to allow practitioners:
— identify quickly a child with whom
they have contact; and
— identify needs earlier and take earlier
and more effective action to address them by enabling them to
identify who else is involved with or has a concern about a child.
33. Given this the Information Commissioner
would be concerned that the database might not be justified in
terms of compliance with Article 8 of the European Convention
on Human Rights, and refers here to the report on the Children
Bill by the Joint Committee on Human Rights and the statement
that:
We are concerned that, if the justification for
information-sharing about children is that it is always proportionate
where the purpose is to identify children who need child welfare
services, there is no meaningful content left to a child's Article
8 right to privacy and confidentiality in their personal information.[26]
34. It is worth noting that if this option
was to be implemented there would seem no justification for the
keeping of information on children who are not of compulsory school
age. Such children if not in contact with the medical services
would not appear on the database at all, and even when children
were in contact with medical services if not of compulsory school
age holding this information would serve no purpose at all.
HOW AND
WHEN PRACTITIONERS
SHOULD RECORD
ON THE
DATABASES THAT
THEY HAVE
A CONCERN
ABOUT A
CHILD OR
YOUNG PERSON
Three coded flags
35. The Government is proposing that a practitioner
in contact with a child will be able to put flags of concern on
the database against their contact details in three circumstances:
— where they have important information
about a child's needs or situation which other practitioners need
to know about;
— if prospective intervention proposed
by other practitioners should be discussed with the practitioner
first because of information he holds or action he is already
taking or is about to take; or
— because the practitioner has completed
an assessment and is prepared to discuss that sharing that assessment
with other practitioners.
36. The Government envisages three coded
flags, for "information", "action" and "assessment".
37. There does not seem to be any practical
purpose behind having three flags. In all cases if a practitioner
has contact with a child, checks the database and notes a flag,
they are expected to contact the practitioner who has placed the
flag on the database. It therefore seems unnecessary to have different
flags as the resulting action is the same.
Threshold for concern
38. The Information Commissioner notes the
views of the Government that there should not be a threshold for
the flags. The Government wishes to rely on professional judgement
alone in deciding whether or not the criteria for placing a flag
(detailed above) are met. However the Information Commissioner
has grave concerns that without some agreement as to what is important
information another practitioner needs to know, or when prospective
action by other practitioners might need to be discussed, different
practitioners will use differing standards and inconsistencies
of approach will inevitably creep in; between different practitioners,
professions and local authority areas. And given that information
will be transferred between different local authority areas, different
standards for triggering a flag of concern will cause difficulties
for the new authority in assessing whether previous causes for
concern should be actioned.
39. The Information Commissioner considers
therefore that for flags to be meaningful there needs to be some
form of standard setting.
Retention of closed concern flags
40. The Information Commissioner cannot
see any justification for keeping a closed concern flag on the
database, just in case the problem re-occurs. If a problem re-occurs
and a practitioner wants other practitioners to contact them they
simply flag up another concern.
Substitution for action
41. It remains a concern of the Information
Commissioner that placing a flag of concern on the database will
be seen as a substitute for action. It potentially removes the
responsibility from the practitioner who is initially concerned
from actively checking whether other practitioners have similar
concerns.
26 Para 113 HL Paper 161, HC Paper 537. Back
| 
