6 February 1989

Dear Sir/Madam

CODE ON CONFIDENTIALITY OF SOCIAL WORK RECORDS

Summary

1. Enclosed with this circular is a copy of a code of practice which provides local authorities social work departments in Scotland with guidance on the maintenance of confidentiality in respect of social work records. The Age of Legal Capacity (Scotland) Act 1991 and the Local Government (Scotland) Act 1994 have implications, respectively, for consent for disclosure and the transfer of responsibilities from old to new authorities and new guidance will be issued which incorporates these provisions.

2. This is issued as guidance to local authorities under section 5 of the Social Work (Scotland) Act 1968, though in the application to detailed professional practice it is essentially a voluntary code. It has been the subject of wide consultation and the Secretary of State hopes that it will command general adherence in both the statutory and voluntary social work sectors.

3. The guidance it contains extends to all identifiable personal information held in local authority, social work records, irrespective of the source of the information or how it is held, and sets out the circumstances in which that information may be disclosed. Voluntary agencies involved with local authority social work departments may maintain records which are relevant for this purpose, and others for the wider purposes of the 1968 Act, and the Code will be applicable to bodies in both these categories.

4. The guidance is confined, however, to authorities’ responsibilities to the donors of information. It does not in any way affect the local authorities’ legal obligations to allow access by individuals to personal information held about themselves in social work records, or to the performance by the authority of its functions under either the Data Protection Act 1984 or the Access to Personal Files Act 1987.

5. Similar guidance on confidentiality in the case of records relating to personal social services has been issued by the Department of Health in respect of England and Wales.

6. The section relating to personal health information deals with the disclosure of such information within the context of social work. The Scottish Home and Health Department have consulted on a separate draft code of practice on the confidentiality of personal health information. Separate guidance on this subject will be issued by that Department.

7. Relevant authorities are asked to bring the code to the attention of all personnel engaged in the handling of social work records. All enquiries relating to it should be made to Mr S Bond, Social Work Services Inspectorate, Rm 40A, James Craig Walk, Edinburgh

EH1 3BA (Telephone 0131-244-5493).

Yours faithfully

A SKINNER

CODE ON CONFIDENTIALITY OF SOCIAL WORK RECORDS

DISTRIBUTION LIST

Regional Councils: Chief Executives and Directors of Social Work

General Managers of Health Boards

General Manager of the Common Services Agency

Convention of Scottish Local Authorities

Chief Constables

Professional and Training Organisations:

Association of Directors of Social Work

British Association of Social Workers (Scottish Secretary)

Association of Directors of Education in Scotland

Central Council for Education and Training in Social Work

Scottish Courts Service - Staff Training Centre

The Law Society

Council for Training of Health Visitors

Nursery Nurses Education Board

Society for Medical Officers of Health

British Medical Association (Scottish Secretary)

Medical Consultative Committee

Association of Chief Police Officers (Scotland)

Voluntary and Other Organisations

Scottish Council of Voluntary Organisations

Shelter

Aberlour Child Care Trust

Age Concern (Scotland)

Barony Housing Association

British Agencies for Adoption and Fostering

Disablement Income Group

Edinburgh Brook Advisory Centre

Key Housing Association

National Foster Care Association

Dr Barnardos Scotland

National Children’s Homes (Scotland)

Edinburgh Family Services Unit

Red Cross Society (Scottish Branch)

Scottish Association for the Care and Resettlement of Offenders

Scottish Child and Family Alliance

Scottish Council on Alcohol

Scottish Council on Disability

Scottish Council for Single Homeless

Scottish Council for Single Parents

Scottish Council for Spastics

Scottish Marriage Guidance Council

Scottish National Commission for Catholic Social Care

Volunteer Development Scotland

Women’s Royal Voluntary Service

Church of Scotland Committee on Social Responsibility

Scottish Society for the Mentally Handicapped

Scottish Association for Mental Health

Children’s Panel Chairmen’s Group

Children’s Panel Advisory Committee

Association of Reporters to Children’s Panels

Regional Reporters’ Group

Royal Scottish Society for the Prevention of Cruelty to Children

The Secretary, Mental Welfare Commission for Scotland

Scottish Consumer Council

Scottish Child Law Group

Scottish Association of Children’s Panels

Scottish Community Education Council

National Joint Council for Local Authorities

Association of Mothers and Maladjusted Children

Institute of Social Welfare

Social Care Association

CODE ON CONFIDENTIALITY OF SOCIAL WORK RECORDS

SOCIAL WORK SERVICES GROUP

JANUARY 1989

CODE ON CONFIDENTIALITY OF SOCIAL WORK RECORDS

CODE ON CONFIDENTIALITY OF SOCIAL WORK RECORDS

INTRODUCTION

Purpose

1. This paper provides a code of guidance to local authorities, under section 5 of the Social Work (Scotland) Act 1968, in relation to the confidentiality of identifiable personal information held in records retained for social work purposes, irrespective of how the information is held, and the circumstances in which it may be disclosed to third parties. The term "personal information" as used in the code means information and expressions of opinion about a living individual who can be identified either from that information alone or from that and other information in the possession of the social work department. Indications of the intentions of the social work department in respect of the individual are not "personal information" for the purposes of this guidance. This definition is consistent with the existing legislation relating to subject access.

2. Although intended primarily as a guide for local authorities, the Code will be of relevance to other agencies which record and handle personal information and, more specifically, to those having close and continuous working relationships with the social work department. The need on particular occasions for the transfer of personal information, possibly of a sensitive nature, between authorities or other agencies increase the importance of a shared approach and common practice in this matter.

Application

3. The guidance is confined to the responsibilities of local authority social work departments to donors of information and does not apply to access by an individual to information about himself contained in social work records. Donors may themselves be service users and the subject of records, or third parties such as relatives, friends or neighbours, or professionals such as social workers from the same or another agency, doctors, health visitors or teachers.

4. The guidance applies to all those employed by or contracted to the local authority, and the requirement to maintain confidentiality should be included in the terms and conditions of employment and rules of conduct of all employees. Where the local authority makes arrangements with others for the supply of services to them or direct to service users, they should ensure that the arrangements include adequate protection for the confidentiality of personal information. Volunteers and informal carers assisting in the care of a person may also need to be given personal information, and they should be required to adhere to the same arrangements as others regarding the confidentiality of the information they are handling.

5. The guidance does not:

5.1 Deal with broader aspects of professional practice in relation to recording and wider aspects of client access on which separate guidance will be issued in due course.

5.2 Impose any restriction on the sharing of personal information for specific social work purposes where the consent of the donor has been given.

5.3 Impose any restriction on co-operation between social work and other professions

5.4 Affect disclosure required by statute or where ordered by a court of law.

5.5 Affect the guidance on access by elected members to confidential personal information issued in February 1984 by the Convention of Scottish Local Authorities.

Legislation on Access to Personal Information

6. The guidance is relevant to the exercise by local authorities of their duties in respect of the provisions on rights of access to social work records as provided for in the Data Protection Act 1984, subject to the modifications contained in the orders made under Section 29(2) and Section 34(2) respectively. Separate guidance on the impact of these orders on social work departments and relevant voluntary agencies was issued on 26 October 1987 as Circular SW8/87.

7. The regulations to made under the Access to Personal Files Act 1987 in relation to local authority social work records which are held manually will extend the local authorities existing duties under the 1984 Act. A consultative paper outlining proposals for these regulations was issued by the Department on 30 March 1988 and separate guidance will be provided on them before they are brought into operation.

PERSONAL HEALTH INFORMATION

8. Health professionals are obliged to maintain the confidentiality of information provided to them by their patients and the present guidance does not authorise disclosure where this would be inconsistent with the Health Code [ A draft Code of Practice on Confidentiality of Personal Health Information has been produced by the Scottish Home and Health Department and has been the subject of recent consultation. This requires health boards to satisfy themselves that other organisations involved in health care or closely related fields wishing to be able to receive personal health information apply criteria on confidentiality at least as strict as those operated by the health service. The Health Code is expected to be published in final form in the near future.] , or any other restriction on disclosure. They may disclose personal health information only in certain very limited circumstances and where they are able to ensure that it will be used solely for the purpose for which it is provided, and that its confidentiality will be strictly maintained. In order to ensure mutual trust in the exchange of information the staff of social work departments should recognise these obligations.

9. When disclosure is being considered of any information which was obtained in the context of health care, social work staff should consult with the health professional to seek the necessary consent and advice on the proposed extent and manner of disclosure. A clear distinction should be drawn between information obtained for health care purposes and that obtained for social work purposes. Information provided by a health professional for a defined purpose should not be disclosed for any other purpose without the consent of the relevant health professional.

PRINCIPLES

10. Some general principles apply to the maintenance of confidentiality as follows:

10.1 All personal information should be regarded as confidential. Mutual trust between social work departments and those for whom they provide a service is essential to effective service delivery. The development of this trust will be assisted by making available clear guidelines on the circumstances in which relevant personal information may be shared both within social work departments and with other agencies.

10.2 Information supplied by a donor for one purpose should not be used for another purpose. The purpose, or purposes, for which information may be used should be established with the donor at the outset.

10.3 Information supplied by a donor should not be disclosed without the donor’s consent in other than exceptional circumstances. Social work departments should give an undertaking to donors to this effect, and explain where exceptional circumstances may apply. The timing and manner of any disclosure is a matter of professional judgement, taking into account statutory requirements and whatever relevant guidance may be available (see paragraph 12 below).

10.4 Where information has been supplied by another agency, disclosure should only be made in accordance with the policy and procedures agreed with that particular agency or with any wider group of agencies (which might include education authorities, health boards and relevant voluntary bodies). Responsibility for the establishment and review or procedures, and for the use of information in such circumstances, rests with the local authority.

NORMAL LIMITS OF DISCLOSURE

11. Personal information should normally be available only to staff in social work departments working directly with the service user. It is recognised that information given to an individual social worker for a specific purpose may require to be disclosed to other social work staff where the management of the case requires it. Any such disclosure should take place in accordance with established policy and procedures.

12. A limited range of others may need personal information to carry out their duties:

12.1 Social work department finance staff to enable them to assess service users’ contributions, for example, to the cost of residential care.

12.2 Legal advisers when actual or possible court proceedings arise.

12.3 Other agencies when undertaking work in partnership or on behalf of local authorities.

12.4 Senior staff in relation to their supervisory and management functions.

12.5 Social work students, their fieldwork teachers and tutors, when undertaking direct work with service users.

12.6 Researchers engaged in evaluative studies and other investigations relating to service provision.

12.7 Informal carers working with a social work department on a voluntary basis.

12.8 Members of a committee of injury, the Commissioner for Local Administration in Scotland and officers of the Secretary of State for Scotland.

EXCEPTIONAL DISCLOSURE

13. In certain circumstances the law or the public interest may override a person’s right to have information kept confidential. Professional and legal advice should be sought and considered in each case. Any information disclosed should be the minimum necessary to meet the requirements of the situation. Particular requirements of this kind include the following:

13.1 Statutory Requirements

Where a statutory right to information, including personal information is involved local authorities are not required to obtain consent in terms of paragraph 10.3 above, although they should notify the donor and the subject of the information where reasonably practicable.

13.2 Requirement By a Court

The courts have power to order the production of information relevant to matters within their jurisdiction. Local authorities must conform with the terms of such an order. They are not required to obtain the consent of the donor or the subject but should give notice of the order in time for those concerned to consider whether to apply to the court to have it set aside.

Local authorities are required to provide social enquiry reports to the court in criminal cases. The writers of these reports should inform the subject of the report and any other persons who have supplied information of the purpose of the report and of any additional purposes for which the information may be used.

13.3 Requirement by a Children’s Hearing

The law on children’s hearings imposes a duty on the local authority to supply a report to the Reporter on a child who is referred to a hearing. The report may contain information from any such person as the Reporter or the local authority think fit. The Chairman of the children’s hearing is under a statutory obligation to make known the substance of all reports to the family and to disclose any information which is used in making a decision.

13.4 Disclosure to Appointees

Children’s hearings may appoint persons to safeguard the interests of the child in proceedings where there is, or may be, a conflict of interest between parent and the child. Such persons are entitled to receive any papers which are made available to the hearing members, including the social background report. Persons appointed by courts as safeguarders, guardian ad litem or reporting officers are also entitled to have such information disclosed to them.

13.5 Disclosure to the Police

Disclosure to the police may exceptionally be justified where this may help to prevent, detect or prosecute a serious crime. There is no legal definition of a "serious crime" in Scotland and advice should be sought before considering disclosure of any personal information to the police in cases of uncertainty. The police will have the option of seeking a court order if local authorities, or individual social workers, decline to disclose personal information in such circumstances.

It may be necessary on certain occasions to alert the police to the case of a person who is missing and is likely to be in danger. Care should be taken in such cases to ensure that the information disclosed is sufficient to assist the police in their enquiries and to prevent serious injury or other harm to the subject.

Where information other than that covered by this Code comes to the attention of social work staff they should consider whether disclosure to the police on their own initiative in order to protect another individual is justified.

13.6 Risk to Personal and Public Health

It may be necessary for information to be disclosed in order to prevent a serious risk to public health. Medical advice should be sought as to the necessity and manner of disclosure. Medical advice may also suggest a need for disclosure to enable health service personnel to carry out their responsibilities in the interests of a subject’s personal health. Appropriate safeguards should be taken to ensure that the information is not used for any other purpose.

13.7 Disclosure through the Media

The welfare or other interests of the subject may be served by making personal information publicly available or by advertisement. In other circumstances, disclosures to the media should not take place without consent. Disclosures to the media should be made only in accordance with the local authority’s established policy and procedure.

PROCEDURE FOR DISCLOSURE

General

14. Clear procedures on disclosures should be established within local authority social work departments and other agencies, in line with established professional guidance, and subject to necessary legal advice and consultation with staff representatives. Once formulated, the procedure should be adopted formally and kept under review.

15. Local authorities should establish the principles of confidentiality and disclosure at the time a donor gives information. It may be necessary in some circumstances, however, to obtain specific consent to disclosure. Attention should always be paid to the safeguards necessary to protect a service user where information has been provided by a third party, and of the need to protect professional and non-professional third parties. If procedures for disclosure are to be understood and operated by agency staff and service users, they have to be simple and unambiguous and should specify the:

15.1 postholders who are to deal with requests for disclosure.

15.2 procedure to be followed when an urgent response is required.

15.3 safeguards to ensure that information will be used only for the purpose for which it was donated.

Form of Disclosure

16. In some cases it may be necessary to disclose the record as a whole but generally it will be more appropriate and sufficient to make available only the relevant information from the record, without making the whole record available. Disclosure may take place in more than one way:

16.1 in writing,

16.2 by copying,

16.3 orally,

16.4 from one computer to another.

17. Individuals should take particular care when making oral disclosure, or discussing a case, that this cannot be overheard by unauthorised persons. No matter the form of disclosure, individuals should avoid disclosing information which may identify a third party.

Children and Young People

18. Procedures for the disclosure of personal information in the case of children and young people should be an integral part of the policies and procedures for inter-agency co-operation. Personal information relating to children and young people should be treated in the same way as that relating to adults. Sensitive information recorded about a child in the records should not be disclosed without the consent of the child, if the donor, unless the child is precluded by reason of age, lack of maturity or mental disorder from understanding the full significance of the information, and thus of giving informed consent. In such circumstances the child’s parent, guardian or other person in whom parental rights rest should be asked to consent, subject to the accepted constraints and safeguards in dealing with cases involving children and young people.

Mental Illness and Handicap

19. Where a person is incapable of managing their own affairs because of mental illness or handicap, the consent to the disclosure of the curator bonis, nearest relative or other person acting as the legal representative of the subject or donor, should be sought when considering a request for disclosure of information.

RESEARCH

20. Access to personal social work information by researchers should be facilitated where possible and a procedure for disclosure should be laid down which is consistent with local authority policy and statutory requirements. Where donors make known in advance an objection to disclosure for research purposes this should be respected.

21. Research workers should be asked to provide formal undertakings that they will:

21.1 comply with agency procedures.

21.2 not approach the subject or donor of personal information without the consent of the local authority.

21.3 not disclose personal information to anyone outside the research team.

21.4 not make an individual identifiable from published material.

21.5 adequately secure any personal information held against unauthorised access.

21.6 destroy all personal information obtained for the purpose of the research within a specified period.

22. Adoption information should not be disclosed to researchers unless they have been authorised in writing by the Secretary of State in accordance with regulation 25(2)(b) of the Adoption Agencies (Scotland) Regulations 1984.

MONITORING

23. It is important to maintain public confidence in the confidentiality of social services records. A record of exceptional disclosures should be maintained and reviews, with statistics of the number and nature of disclosures within the excepted categories being made available for publication from time to time.