Decision Making Guidance for Foster Carers

Chapter three

Confidentiality and Information Sharing

What children say:

"My carers need to know medical things as they need to know if anything is wrong with me"

"I would like to keep some things private…I need a life"

"I didn't know I have a right to see information about me"

"I want my carers to know about counselling or mental health as they could help me through a rough time"

Children are entitled to the same privacy and confidentiality as adults, but there are limitations. Child protection always trumps confidentiality, but care must be taken that you are sharing only that which must be shared, and are sharing with the right person. Children in care have less privacy than other children, but they still deserve respect and care for their dignity when information is shared. This Chapter is intended to give you some understanding of the complexities and some guidance on the approach to take. All situations cannot be covered here so when faced with a situation that you are unsure about - get advice.

Common Myths

All information about a child or parent, however confidential, must be shared with the named person

All information will be shared with all of the professionals and agencies working with a child or family

Children cannot have information kept private

1 What information can be shared with me about the child?

You have the legal responsibility of safeguarding the health welfare and development of the child while he or she is in your care. Therefore you should be given all the information you need to carry out this great responsibility. When a child is placed with you, you should expect to be provided with information about the child which is sufficient for you to manage their day to day care. In an emergency placement you will inevitably have less information at the start, but you are entitled to expect to be provided with the information you need to care for the child.

Important Point

If you have other children in the house - including your own, you should have any information that you may need to keep them safe. The local authority has a duty of care to you, and other members of your household, as well as to the child who is accommodated with you.

This will include:

• Information about any medical conditions or illnesses, medical or dental treatment that the child is undergoing. This is subject to the child's own capacity (see Chapter one 3). You should know of any medical risk the child may pose to you or any member of your household (i.e. HIV positive or any communicable disease)
• Any behavioural problems including any history of violence or offending that is of current concern, or which may pose a risk to you, your family, other children in the house, or those the child may come into contact with. This will include any sexual offences. It is particularly important that you be aware of any pattern of risk taking behaviour.
• Details of any services the child is working with.
• If you are likely to have any contact with the parents or other family members of the child you should be told of any risk they may pose to the child or you.

Important Point

If you are a relevant person for the children's hearing, you will have full access to the reports, so will see all the information about the child and family (see Chapter four)

2. Information you should be provided with or have access to

• Your foster placement agreement should include any specific requirements of the child.
• A copy of the Child's Plan. This should make clear the responsibilities of the professionals, any person with parental responsibilities, the child, you, and any other person who is relevant.
• Medical information - this should be in the child's plan
• and should include details of any health condition the child may have and any treatment or medicine they are taking - unless the child is old enough to make their own medical decisions and demands confidentiality. Any chronic or serious conditions should be made known to you.
• The name and contact details of the child's medical practice
• Details of any disease or medical condition that may pose a risk to any person living in your home, including you and any other children.
• Information concerning the child's family so that you can manage contact between the child and the family, including, whether it is appropriate for you to have direct contact with the child's parents or family and what information you can and cannot share with them
• Any other information that is appropriate for you to know so that you can keep the child safe and supported.
• Information concerning any persons who may pose a risk to the child and from whom you may need to keep the child safe.
• Information concerning any risk the child may pose to themselves or any other person - including you and any other child in the house.
• Information concerning any court or children's hearing decisions affecting the child.
• Details of anyone that the child is to have contact with or not to have contact with and when and where that contact is to happen and how it will be supervised or not.
• Details of meetings that the child needs to attend and the professionals involved with the child, the named person, the lead professional.
• Information concerning the child's education, including any additional support for learning.
• Any other information that you require to carry out the child's day by day care.

3. Emergency placements

The local authority is required by regulation 36(5) of the Looked After (Scotland) Regulations 2009 to provide you with information about the child's background, health and emotional development.

www.legislation.gov.uk/ssi/2009/210/made

4. What information will not be shared with me?

If you do not need it to care for the child, then you should not have it. There may be sensitive information that you do not need. Examples may be:

• the child had a pregnancy terminated before coming into your care.
• details of therapeutic work undertaken with a CAMHS team - although you should have a general idea of any mental health problems
• You will only have information about third parties that you need to know - so you may know that a parent is a drug user, but may not know that the parent is a recovered alcoholic.

Important Point

Information sharing is always governed by the Data Protection Act 1998

5. What information must I share?

5.1 Notifiable events

Prior to the placement you should be provided with information as to which events that social work must be told about. These could include:

• specified persons contacting, or being contacted by the child
• specific behaviours by the child
• significant things happening to the child

6. Child Protection

Child protection over-rides considerations of confidentiality, but the Data Protection Act does require that you share only what you need to share and only with the appropriate person. The first call should normally be to the child's social worker. It is not always necessary to call the police yourself unless there is an urgent need - it may be the decision of social work whether to involve the police.

Whether a matter is child protection one or not will depend on the circumstances, it can include disclosures by the child or others, incidents involving the child or others, or a concerning series of minor incidents.

7. Crime

Where the child has been the victim of a crime, you will need to tell his or her social worker, and you will need to consider reporting it to the police, unless the child is an older child and does not wish to report the offence. The law does not require that all crime be reported to the police. It may be minor and not require reporting as it can be dealt with in a more appropriate manner - particularly if the alleged offender is another child. Serious crime will need to be considered very carefully and the decision may be taken by social workers rather than the child. The child may refuse to cooperate, however, and advice will need to be taken. It is likely to be social workers, rather than you who will notify the parent/s of the child and others.

8. What information can I share about the child and with whom?

This is probably the most challenging part of information sharing. Issues can arise when the child reaches an age and stage where they are able to form a view, and later when they are capable of exercising capacity. When any child asks for a matter to be kept private, that request should be considered seriously and respected as far as is possible - child protection concerns allowing. Many children in care have issues with trust, and you will have a daily balancing act between respecting their dignity and privacy, and sharing necessary information with the other professionals and the parents of the child.

Important Point

Where you have informed permission to share information, you can stop worrying!

9. The named person

Where a child is accommodated, the role of the named person is rather clearer than with other children. The named person has an integrated role with the professionals and will be privy to information as part of that role. You should be clear about whom the named person is and your local area procedures.

10. Medical Information

The responsibilities and rights of parents should be respected, and unless there are restrictions on information sharing imposed by a children's hearing or a court, then it is entirely appropriate for you to share information about any medical decisions you have had to make, or any treatments that the child is receiving where the child is too young to make medical decisions.

Where the child has the capacity to make their own medical decision about their treatment, then you may not be privy to any information about it if that is their choice. If they do chose to share the information with you, you should obtain their permission before you share it with anyone. The medical professionals will be aware of child protection and will always include it in their considerations. The child may have good reason for restricting access to information, or it may just be a matter of trust. Whatever the child's reasons, they are entitled to the protection of the Data Protection Act - so be cautious. You may want to work with them to help them understand the importance of sharing some information, and you can support them to explain their requirement for confidentiality to others, such as social work, other professionals and family. Remember that if over 16 years of age, the young person is an adult and is entitled to full medical confidentiality unless they lack capacity.

Important Point

Breach of the Data Protection Act can be a serious matter. For more information see the website for the Information Commissioner for Scotland. www.ico.org.uk

11. Sexual health

What children say:

"I don't want my carers to know about my sexual health"

A child has the right to obtain sexual health services where he or she has capacity (see Chapter one 3 - capacity). The service, whether it is from an agency or a qualified medical practitioner, has the responsibility for considering whether child protection steps should be taken. If you become aware that the child is sexually active and he or she is under 13 years of age, you must take child protection steps. If the child is over 13 years of age, then it is a matter for judgement. Any professional who has been consulted by the child about sexual health, will have been required to explore child protection matters. See Scottish Government Guidance on under age sexual activity. http://www.gov.scot/Resource/Doc/333495/0108880.pdf

Important Point

Where the child is under 13 years of age, there is always a child protection concern, if the child is sexually active.

12 Offending

12.1 Where the child is under 16 years of age and has been accused of an offence, will I be told?

If you have the care of a child, then you should be told if the child is to be questioned by the police, or has been taken to a police station. You will be the one, in the first instance, who has to ensure that the child has access to legal advice - do not leave this to the police. The law is changing to ensure that young people under 18 years of age also have parents/carers notified if they are arrested and taken in for questioning. Depending on the circumstances the police may notify social work, but you should ensure that the child's social worker is fully aware of the circumstances.

Important Point

A child will be eligible for free legal advice if they are to be questioned by the police concerning and alleged offence.

12.2 Should I tell the child's parents?

Much will depend on the circumstances of the individual child. You will be well aware of the nature of the child's relationship with the parent. In some cases the parent/s will be best placed to support the child, in others it may be that it is best that they are not involved. If unsure refer to the child's social worker.

13 What information may I keep about the child?

You are permitted to keep your own information about the child, and it can be wise to do so. If you are keeping information about the child it should be kept in a place that is secure. You should get help from the local authority if you have written material about the child that needs to be kept safe. You should also let the local authority (social work) know that you are keeping information. Remember that the child has a right to know and see any information held about them (see next Chapter).

14 What information does the child have a right to see?

The Data Protection Act 1998 s. 66 gives children under the age of 16 years of age, the right to access information held about them when they have a general understanding of what that means. Social workers may withhold information that they feel the child is not ready to see, but should have robust systems to support requests. Information about third parties is restricted by the Act, but may form part of the child's life story work.

15 Can children restrict access to information about themselves?

This depends on the circumstances, but at all times information held about children is governed by the provisions of the Data Protection Act 1998. The sharing of sensitive information, which includes medical (and psychological) treatment, any offending or suspected offending and any information about the child's sexual activity is subject to very strict protections. The child can make a formal request for information to be withheld from particular persons if it is going to cause significant distress or harm to him or herself or to another individual (see Chapter one 3), a children's hearing can be asked to restrict information.

Important Point

When it comes to children's hearings the child may request a pre-hearing panel or a children's hearing for an order restricting access to specified information. For more information on this you should speak to the children's reporter responsible for the child's case.

Useful links:

Children and Young People's Commissioner Scotland

http://www.cypcs.org.uk/

Scottish Child Law Centre

http://www.sclc.org.uk/

Scottish Legal Aid Board

http://www.slab.org.uk/

Scottish Children Reporter Administration

http://www.scra.gov.uk/home/index.cfm