This is the second part of my blog about consent regarding information sharing within safeguarding practice.

As I said last time consent is a live legal issue when professionals involved in the safeguarding of children and adults are considering gathering and sharing personal information.

So how should safeguarding professionals deal with the issue of consent to share personal information?

Article 8 of The Human Rights Act 1998 ensures: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

But because this is not an absolute right, there are occasions when it is lawful for the state (which covers all statutory safeguarding organisations) to interfere with this right and share information. Safeguarding and promoting the welfare of children and adults at risk fits this bill.

Furthermore, sharing information may in fact be in line with Articles 2 and 3 of the Human Rights Act, namely the right to life and the right to prohibition of torture or inhuman or degrading treatment. These articles are absolute rights for all individuals. If either of these are engaged (i.e a person’s rights to these are at risk) then the right to privacy can be degraded by sharing information with or without the consent of an individual.

So the state must have a very good reason to invade your privacy.

Why, what, how and with whom information can be shared

Practitioners should be open and honest with individuals and families from the outset about why, what, how and with whom information will or can be shared.

Consent can be obtained from a person who is legally competent to do so. In  broad terms a person who is 18 years old in England and Wales is competent to make a decision concerning consent to share their personal information.

Consent should be written, informed and explicit, clearly explaining the process, the information that will be shared and with whom, together with a person’s rights to refuse, limit or withdraw consent and any implication that may have on service delivery.

Remember the two professionals from the last blog? They suggested that as long as someone does not object it is all right to share information. Not so. One has to opt in not opt out regarding consent.

Children and young people

For those under 18, specific consent must come from a parent who holds parental responsibility or a carer who has obtained this from a court. A young person may also consent if they have been assessed as mature enough to make such decisions.

Consent must be obtained from the above before any referral is made or information shared about a person, except in the following circumstances:

• Where there are child protection concerns
• When it is suspected that if attempts are made to seek consent from the parents or carer, this may place the child or another child at risk of harm
• When the referrer has sought consent and the parent has refused permission.

If there is significant change in the way the information is to be used at any time – or a change in the relationship between the agency and the individual – consent should be sought again. Individuals have a right to withdraw or limit consent at any time.

When a child is assessed as in need of protection then consent to share information between agencies remains desirable but is not essential. The safety of the child is paramount.

But there must be a proportionate reason for not seeking consent. The person making this decision must weigh up the important legal duty to seek consent and the damage that might be caused by the proposed information sharing on the one hand, against whether any damage might be caused by seeking consent, and if so what type and amount of harm might be caused (or not prevented).

Think Human Rights at this point. Consider the balance between privacy and harm.

Adults at risk

An adult at risk who is the focus of a safeguarding enquiry needs to be made aware at the earliest opportunity of the need to share information, and to give their consent. This, of course, may not always be possible.

Where it is not possible for the person to consent, a best-interests decision will need to be made. Family and friends may be involved in this consideration but cannot consent unless they have the requisite legal standing. Independent advocates may have a role here as well. Every thing in our law concerning adults ensures we MUST consider their wishes.

Adult refusal to consent to share information

It is not possible in this blog to cover all the circumstances where an adult at risk may withhold consent to share information. A common example is where the alleged victim of financial abuse withholds consent to share information with the police out of loyalty to a family member, who is the perpetrator. In these circumstances the professional receiving the information or investigating the abuse can inform the police if they believe a crime has been committed.

If consent is not obtained to share information in an adult safeguarding matter, there are several considerations to be made about sharing information without consent. Sharing information without consent can be legitimate where there is an overriding public interest, as identified earlier in relation to children. An example might be an abuser targeting older people in a particular locality where the victims do not want to take action, but others might also be at risk.

There is also the notion of ‘legitimate purpose’ in sharing information without consent, which can include issues such as:

• preventing serious harm to an adult at risk
• providing urgent medical treatment.

Information can also be shared without consent where the vital interests of the individual are affected.

The issues are rarely clear cut and the rights of the individual must always be respected however daft or risky they may appear to others.

Necessity, proportionality and relevance

Once the legality of sharing a person’s personal information and consent have been considered, three further tests should be thought about before sharing any personal information.

Think about these as the NP & R tests. Consider all three, not either/or:

N – The amount and type of information shared should only be that necessary to achieve the lawful aim.

P – Information is always to be considered in terms of its proportionality in each set of circumstances, but it must always be remembered that the right to life is paramount.

R – Only relevant information should be shared. This should be decided on a case-by-case basis.

When you have done consent and NP&R then consider two additional and simple questions before finally sharing information with another professional or organisation: does the person or organisation ‘need-to-know’ about the information, or is it really a case of it being nice for them to know?

Follow the three clear steps of consent, NP&R and then ‘need to know’ and you wont go far wrong.

One final thought: be very clear who you are sharing with and for what legal reason.

The why and how of sharing

Think about the why as well as the how. If you are sharing because you have a concern about a child perhaps because they are part of a family that has had a row (police define this as domestic abuse however minor these days), then it is the local authority that you should share with not anyone else who it feels good to tell. Let the authority, which  has the statutory responsibility to protect children, decide if there is a good and valid reason to tell others.

This blog is a warning – for those who think everything is more relaxed these days I have an uncompromising message: it isn’t.

The law and best practice is exactly as I have summarised it and the right of the individual in this country to be private unless they step hugely outside the law or put others seriously at risk is protected by the Human Rights Act 1998. Hopefully this will continue whatever changes the new government think they wish to do.

The seven golden rules

In 2015, the government published revised practice guidance Information sharing Advice for practitioners providing safeguarding services to children, young people, parents and carers which again identifies the ‘Seven Golden Rules of Information Sharing’.

Well worth a read and maybe keep a copy close to hand.

Recently I co-authored and edited a book – Multiagency Safeguarding in a Public Protection World – a handbook for protecting children and vulnerable adults. This discusses consent in far more depth. Here’s the link. All purchases go to charity 

By Nigel Boulton