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8.1.6 Confidentiality Principles

Contents

  1. Personal Information is Subject to a Legal Duty of Confidence
  2. Disclosure of Confidential Information is Permitted in Exceptional Circumstances
  3. Situations where Disclosure is Permitted should be Shared with the Individuals Involved
  4. Information Should be Disclosed to Colleagues and Other Professionals and Agencies on a Need to Know Basis
  5. Freedom of Information Act 2000


1. Personal Information is Subject to a Legal Duty of Confidence

Personal information held about individuals is subject to a legal duty of confidence and should not normally be disclosed without the consent of the subject or a person acting on their behalf where they lack mental capacity, e.g. an attorney or advocate (including an Independent Mental Capacity Advocate (IMCA) where appointed).

The exceptions to this are set out in Section 3.2 below.

The legal framework for confidentiality is contained in the common law duty of confidence, the Human Rights Act 1998 and the Data Protection Act 1998.


2. Disclosure of Confidential Information is Permitted in Exceptional Circumstances

Whilst the general principle is that information obtained about individuals must be shared with them and not with others, there are exceptions.

The public interest in the protection of children and any vulnerable adults where a crime is suspected overrides the public interest in maintaining confidentiality and the law permits the disclosure of confidential information in such circumstances.

Disclosure should be justifiable in each case, for example to provide information to professionals from other agencies such as the Police, and where possible and appropriate, the agreement of the person concerned should be obtained.

There may also be situations where third parties have a statutory right of access to the information or where a Court Order requires that access be given.

The circumstances in which information held in records can and should be disclosed and shared with others with or without consent are set out in the following sections.

In all other cases, where third parties such as solicitors or external researchers request access to information, this should only be given if written consent is given by the person concerned or a person acting on their behalf where they lack mental capacity, e.g. an attorney or advocate (including an Independent Mental Capacity Advocate (IMCA) where appointed).


3. Situations where Disclosure is Permitted should be Shared with the Individuals Involved

Individuals should be informed of the circumstances in which information about them will be shared with others. It should be made clear that in each case the information passed on will only be what is relevant and on a 'need to know' basis.


4. Information Should be Disclosed to Colleagues and Other Professionals and Agencies on a Need to Know Basis

Sharing information promptly with others working with the same individual or with a child in the same household, or who may need to know, is invariably the key to safeguarding the individual's and/or the child's interests.

Therefore, relevant information about individuals must be shared with colleagues, other professionals or agencies that may have a role to play in their care.

The general principle is that information may only be shared on a 'need to know' basis.

In such circumstances the person to whom the information relates should be informed that records have been requested unless to do so would prejudice the purpose of the request. Any objections they have should be considered before responding to the person making the request. Where a person lacks mental capacity, this discussion should be held with the person acting on their behalf, e.g. an attorney or advocate (including an Independent Mental Capacity Advocate (IMCA) where appointed).

Where information or records are passed to others it should be noted and confirmed in writing.

Information may also be disclosed to persons who have a statutory right of access to the information, for example:

  • Where the Court directs that records be produced;
  • Where information is requested by Inspectors of the Regulatory Authority (who have specific statutory powers that permit access to records);
  • An Independent Mental Capacity Advocate (IMCA) where appointed.

Where information is requested by telephone or electronically, great care must be taken to ensure that the recipient is entitled to receive the information requested. Where there is any doubt the information may not be provided without the approval of a manager.


5. Freedom of Information Act 2000

The Freedom of Information Act 2000 came into force on 1 January 2005. Under the Act anybody may request information from a public authority (which includes all local authorities). The Act confers two statutory rights on applicants:

  1. To be informed in writing whether or not the public authority holds the information requested; and if so
  2. To have that information communicated to him/her.

The Act applies to all information whether recent or old.

The Act sets out 23 exemptions from rights of access to information. If the information is exempt, there is no right of access under the Act.

One exemption relates to personal information. This means that an application for personal information under the Act is exempt and will not therefore be dealt with under the Act. A person's right of access to such information must still be dealt with in accordance with the Data Protection Act 1998. The procedure is set out in the Access to Records Procedure.

Another category relates to information provided in confidence where disclosure would involve an actionable breach of confidence. This would include information provided by a member of the public about a child protection issue where the provider has provided the information on the basis that anonymity will be maintained.

The Act therefore does not change the legal position into the principles of confidentiality set out in paragraphs 1 to 4 above in this section.

End