Consent A Guide for Practitioners by guy22

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									                 Consent to share personal
      information within and between
                                             agencies:
                   A Guide for Practitioners
Contents

Introduction............................................................................................................. 2

What is meant by consent to share information? ...................................................... 2

Why should I gain consent to share information? ...................................................... 3

How should I gain consent? ..................................................................................... 3

Who can give consent?........................................................................................... 3

How should I record consent? .................................................................................. 4

When does consent not need to be obtained? ....................................................... 4

What if consent is requested but withheld or withdrawn? ......................................... 5

Who can I go to for help? ........................................................................................ 7

Appendices ............................................................................................................ 8

  1. Consent glossary ............................................................................................... 8
  2. Practitioners‟ checklist to obtaining and documenting consent ......................... 9




                                                                              -1-
Introduction
This guidance is intended to aid effective information sharing within and between
organisations working with children and young people in Torbay. The aim is to:
      increase the amount of information sharing that goes on between agencies
      ensure that the information that does take place is appropriate and lawful
      ensure that children, young people and their families are properly informed
        about information that is held and shared about them
This guidance specifically addresses the issue of gaining consent to share service
users‟ personal information. It reflects the current understanding of the legal
requirements around consent, though this area, like much within children and family
services at present, is subject to change.

Who is this for?
This guidance is designed for practitioners, their line managers and anyone involved
in gaining and documenting consent. Although the guidance is predominantly for
the use of staff in Social Service, Education and Health, other agencies such as
Police, Voluntary organisations and Housing should find the information equally
useful.

What‟s in it?
The advice contained within this guidance is based on a number of best practice
examples and central government guidelines and is consistent with advice
contained in the Department of Health‟s “What to do if you are worried a child is
being abused” published on 19th May 2003, and the current consultation document
issued by the DfES on 12th January 2004 entitled “Safeguarding Children: Guidance
about Child Protection arrangements for the Education Service” (available at
www.teachernet.gov.uk/childprotection).

It is important to emphasise that effective information sharing and gaining service
users‟ consent to do so is a means to an end – improving outcomes for children and
young people by improving the services they are provided – and not an end in itself.
As the Laming Report emphasizes, child protection is everyone‟s responsibility, and as
the Green Paper “Every Child Matters” states children “in need” are not the sole
responsibility of Social Services. Meeting their needs is dependent on the multi-
agency co-ordination of services, as well as key worker leadership from different
agencies.

What is meant by consent to share information?
Consent in this context is the expression of agreement or permission given by parents
(or adults with parental responsibility) or young people to share personal and often
confidential information within or between organisations. This includes information
about a child and/or information about a parent, carer, or other adult which is
directly relevant to that child‟s welfare and protection. In most cases however,
information is shared for less extreme reasons, for example, to provide access to
youth services or provide better educational services which are more relevant to
that child.




                                                      -2-
Why should I gain consent to share information?
As children are entitled to the same duty of confidence as adults, an individual‟s
consent will normally be required to share „personal‟ information or „personal
sensitive‟ information between agencies in Torbay.

If the child or other people are not going to be put at risk by seeking consent, it is
best practice to do so. Not only does this give the service user a sense of control
therefore increasing their level of trust in the agency, but it will overcome many of
the obstacles to information sharing and allow practitioners to:
      provide fuller and more appropriate support to service users
      improve and assure the quality of care, treatment and advice
      avoid duplication of information gathering and ensuring speedy service
        delivery
      manage and integrate the planning of services to be more effective

How should I gain consent?
It is always good practice to keep children and their families informed of what might
happen to the information they provide. Service users should be provided with
sufficient information to ensure that they are aware of all of the uses and potential
uses of their personal / personal sensitive information. It should be explained that the
sharing of information with other agencies and professionals will avoid duplication,
enable services to work more effectively together and help agencies to support the
child/young person better.
Consent does not have to be written to be provided. It can be given verbally or in
other non-written forms, such as nod of the head, provided these are clear and
unambiguous. There are advantages in gaining consent in written form, however - it
reduces ambiguity about what is being consented to and provides an auditable
record.

Who can give consent?
Everyone aged 16 or more is presumed to be competent to give consent for
themselves, unless the opposite is demonstrated. If a child under the age of 16 has
“sufficient understanding and intelligence to enable him or her to understand fully
what is proposed”, then he or she will be competent to give consent for himself or
herself1. Young people aged 16 and 17, and legally „competent‟ younger children,
may therefore sign this form for themselves, but may like a parent to countersign as
well.

If the child is not able to give consent for himself or herself, if it does not place
him/her at additional risk, someone with parental responsibility may do so on their
behalf and a separate form is available for this purpose.

If a service user is mentally competent to give consent but is physically unable to sign
a form, you should complete this form as usual, and ask an independent witness to
confirm that the young person has given consent orally or non-verbally.



1This is based on the Gillick principles which were made case law as a result of The Gillick Case [1985]
where Victoria Gillick objected to a DHSS circular permitting adolescents to receive contraceptive
advice from GPs without parental knowledge/consent. The House of Lords declared that the circular
was lawful.


                                                                   -3-
Further to the above:

          No one is able to give consent on behalf of a competent adult (over 18
           years old)
          Children under the age of 16 can give their consent if they are seen to be
           “competent” but ideally the consent of someone with parental
           responsibility should also be gained
          If a competent child consents, a parent/carer cannot override that
           consent
          A parent can consent if a legally competent child refuses but such a
           serious step is rare. In such cases, advice should be sought from you Data
           Protection officer (or equivalent)


How should I record consent?
If consent to share information is obtained this should be noted in all copies and
versions of the service user‟s records: both paper and IT based.

If the service user has indicated that they do NOT want their information to be shared
with any specific agencies or for any specific purposes, this too should be noted on
the service user‟s record.

Details of how an individual‟s consent details will be kept up to date as well as who
information will be shared with should be given to the service user and timescales
should be set locally.

When does consent not need to be obtained?
It is best practice to obtain consent unless doing so may:
      1. Place the child at risk of harm
      2. Compromise a police investigation
      3. Leads to unjustifiable delays if the information is urgently needed.

and consent is not required:
    for de-personalised/anonymous information including statistical information
      used for planning and monitoring purposes
    where a Court Order exists demanding that the information is shared
    for the prevention and detection of crime
    if there is an overriding legal/statutory requirement to share the information
      such as is found in Section 115 of Crime and Disorder Act (which authorises
      relevant authorities to disclose information necessary for the prevention and
      reduction of crime and the identification and apprehension of offenders or
      suspected offenders.)
    where the need to safeguard a child‟s welfare overrides the need for
      confidentiality




                                                         -4-
  Safeguarding a child’s welfare applies to those children who may be:
   a. “at risk” i.e. have suffered or may suffer significant harm (emotional, physical
      or sexual abuse) as a result of an act of omission (neglect) or commission
      (actual abuse) by a parent, carer, or other significant person (usually an
      adult) or
   b. “in need” under S.17 of the Children Act, ie,
         i. where a child may not achieve or maintain a reasonable standard of
            health or development without the local authority providing services.
        ii. Where a child‟s health or development might be significantly impaired
            without the local authority providing services.
       iii. Where a child is disabled.

 The meaning and threshold for “safeguarding a child‟s welfare” is not as high as
 the traditional child protection criteria, and includes all children for whom a multi-
 agency children “in need” assessment may be required to determine need and
 what services, if any, a child may require from the various statutory and voluntary
 agencies to meet those needs.

It must be noted that not all of the patient/service user‟s record would normally need
to be shared: information should be provided on a “need to know” basis
proportionate to the nature of the concerns.

It should also be noted that cases where consent does not need to be obtained as
outlined above are generally far rarer than „every day‟ situations where information
sharing takes place in order to provide services to children and young people.

What if consent is requested but withheld or withdrawn?
Service users have the right to withhold or specify limitations as to the sharing of their
information. Service users should therefore be given the option to refuse their
consent for:
    a) specific pieces of information about them to be shared
    b) for specific agencies to receive information about them

If a service user wishes to withhold their consent, the following flow chart should be
followed:




                                                         -5-
                                 Explain that they will
                                                                Can you ease their
    Ask why they have              receive more co-                                         Ask them to complete
                                                              concerns to the extent
   withheld or withdrawn         ordinated and better                                        a new consent form
                                                              that they provide their
       their consent            quality services if the                                     detailing their consent
                                                                     consent?
                                information is shared

                                                  No                         Yes

   Is there a justification for sharing the information
   without consent (see paragraph ?)
   Does the information have to be shared for the                           If concerns remain regarding the
   - prevention or detect crime                                             legality of sharing information, advice
   - protect young people (including child protection)                      must be sought from the appropriate
   - protection vulnerable people                                           agency source e.g. legal services, the
                                                                 Unsure
                                                                            Data Protection Officer or the
   Is sharing the information proportionate to the intended                 Caldicott Guardian, where applicable.
   aim? – will the harm that results from the breach of
   confidence by sharing the information be worse than
   the harm caused by not sharing the information?



  No               Yes
                                                                                   Record the decision on the
                                              Share the information                individual’s records escalate
        Take a final decision with            according to the good                the issue to management level
        consideration of the legal            practice guidelines                  to discuss how the identified
        framework                             outlined below. Inform               needs may be met without the
                                              service user if appropriate          formal sharing of information.
                                                                                   Inform service user if
                                                                                   appropriate




Good practice guidelines
Disclosure without consent should be the exception rather than the rule but where
there is a legal precedence for sharing personal information without consent, care
should be taken to ensure that where possible the service user should be informed
that their information is going to be shared despite the fact that they have not given
their permission. The reasons for doing so should be explained and the outcome of
the information sharing should also be fed back to them.

Whether consent has been provided or not, it is good practice to ensure that:
   disclosure is made to the right person (eg. the person who needs to know in
     order to avoid or prevent the risks) and cannot by accident or design be
     accessed by others
   the recipient of the information understands the confidential and sensitive
     nature of the information –and knows what to do with it (you may need to
     provide advice and support)
   all correspondence is marked “private and confidential – for addressee only”
   the recipient does not already have the information in question – this may
     avoid the need to share the information or will enable you to correct any
     inaccurate information that they hold on the individual
   where the child will not be put at risk by doing so, the child/young person and
     parents/family/carer must be informed that legal precedence has been
     found for sharing the information the child/young person and family should be
     involved / informed at all stages
   the information shared must be the minimum necessary to achieve the
     intended aim and the reasons for sharing the information should be recorded
     in detail


                                                                               -6-
      the recipient is aware of when you are sending the information and
       acknowledges receipt of it and, if appropriate, extra security measures are
       taken (e.g. sent by recorded delivery)
      the information provided distinguishes between fact and opinion and is the
       minimum required to satisfy the purposes of the recipient
      you record when, how and why the information was shared and with whom

Furthermore, practitioners need to be aware of the sometimes differing perceptions
of the service user relating to boundaries of trust between agencies. For example, in
certain instances, service users may feel more comfortable disclosing information to
a voluntary rather than a statutory agency. Such factors should be considered on
individual circumstance and based on the practitioner‟s local judgement.

Please note, information required for the purposes of monitoring, evaluation,
research and service planning should always be shared in anonymous form to
protect the identity of the service user.

Who can I go to for help?
Practitioners are not on their own. There is a network of people to help and provide
support. As a first port of call, practitioners should consult their manager for advice.
Many agencies have someone with responsibility for information sharing and
compliance and if necessary they can be contacted as well. Most commonly these
are known as Data Protection Officers or Caldicott Guardians. A brief description of
their respective roles is provided below:

Data Protection Officer – A designated person within an organisation responsible for
ensuring compliance with Data Protection Act guidelines. There may be more than
one per agency or organisation.

Caldicott Guardian – A designated health or social care senior manager responsible
for overseeing access to information from which the patient (or service-user) can be
identified.




                                                        -7-
Appendices

1. Consent glossary

Consent
Consent is the expression of agreement or permission.

Explicit (express) consent
An unambiguous expression of agreement on the basis of what is clearly sufficient
information to enable the person giving it to understand the implication of giving
consent

Informed consent
Consent that is given with full understanding of why and for what it has been sought

Personal information / data
Must relate to a living individual who can be identified from the data. Therefore,
anonymised or aggregated data which cannot be used to identify particular
individuals, does not fall within the definition.
Personal data includes expressions of opinion and of the data controller‟s intention in
relation to the data subject

Personal Sensitive information/ data (or sensitive personal information / data)
Personal data that contains information as to an individual‟s racial or ethnic origin,
religious beliefs, physical/mental health, sexual health or criminal offending




                                                        -8-
2. Practitioners’ checklist to obtaining and documenting consent


Checklist                                                                              Done?
Explained that information is only shared in response to a specific request and only
between authenticated agencies in order to promote and safeguard the welfare of
children and young people in Torbay.


Explained that only basic information will be shared:
Personal identifying data
      Name, address, date of birth
      Whether previously known to the service
      Contact details for allocated worker


Explained what consent is.
      The difference between Implied/explicit
      Given examples of the vast majority of consent requests
      When consent can be overridden
      Who can give consent?
            o   Parents
            o   Guardian/Carers
            o   Children if Fraser/Gillick competent – ‘whereby they demonstrate
                Sufficient understanding and intelligence to enable them to
                understand fully what is proposed’
Explained the benefits of consenting to share these basic details
      Identity details are correct in all agencies
      Identity details are not ‘duplicated’
      Do not have to repeat basic details to all agencies


Where consent was refused, explored objections to sharing these basic details – if
you are unable to reassure the family/individual, agree to feedback concerns to
managers to see if future policy can be modified.
Appropriate form completed
Explained that consent can be withdrawn in the future


Completed the consent form


Provided a copy to the family/individual


Given a copy of the ‘you and your information’ leaflet


Filed the original of the consent form in the client file


                                                             -9-
Practitioner Signature


Date




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