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This chapter
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Listening
When a child or a young person with a problem approaches a health care worker (or an adult reports abuse during childhood) the professional should listen carefully with sympathy and understanding. While a person's response to a revelation about abuse is coloured by their own life experience, they should avoid expressing shock or disbelief or to start questioning the abused person. The child may be frightened of revealing something which they have been told is a secret, whether in the context of a threat or a "special relationship". They may also be afraid that they will not be believed. It is possible to listen carefully and seriously to a child's report of abuse whilst keeping an open mind as to what may have occurred. A similar approach should be adopted if the source of information is someone other than the abused child.
Where information is offered, those receiving the information should listen carefully to what is being said, be attentive and responsive taking into account the child's age and stage of maturity and development, and allow the child to say what he or she wants to without being drawn into detailed questioning. Care must be taken to avoid undermining future inquiries or police investigation, for example by asking leading or multiple questions. The listener should record as accurately as possible anything a child has said, noting exact words, time, place and context, as far as possible, and should avoid summarising the child's account using the listener's words.
Children or young people who report abuse may be anxious about the information being shared with others. If necessary the listener should reassure them that he or she is right to talk to an adult about being hurt or harmed, and that the adult must take what the child has said very seriously. Any professional should make clear that other people may have to be informed to make sure that the child or young person can be kept safe and protected. They should not make promises to children or young people about confidentiality of information.
In most cases the listener should be able to explain to the child or young person who else will need to be told and why, giving a commitment to keep to a minimum the number of people who need to be informed. The professional should, as far as he or she is able, state what is likely to happen, and should find out the child's or young person's views and wishes to inform the next steps.
When a parent or adult refers concerns about a child, the person receiving the referral should ensure, as far as practically possible, that suspicions or allegations of abuse or neglect are not discussed in the child's hearing. This could prejudice the reliability of any information the child may provide later.
Communication
Participation in child protection covers a wide range of activities from prevention and raising of awareness, to examination and treatment of abused children, attendance at Child Protection Case Conferences and ongoing care of the child and their family. The Child Protection Case Conference is a multi-disciplinary meeting which brings together health, local authority staff, police, professionals and other relevant people concerned with the care and protection of the child. Responsibilities to work in partnership with families increasingly mean that the parents and children may participate in these meetings. In some cases of child abuse problems have arisen when professionals fail to communicate effectively and share information both vertically within a professional structure and between professional agencies involved with the child and their family. It is crucial for the benefit of the child that key people communicate effectively across professional boundaries in an atmosphere of trust.
Sharing Information
Personal information about children and families given to professional agencies is confidential and should be disclosed only for the purposes of protecting children. Nevertheless the need to ensure proper protection for children requires that agencies share information promptly and effectively when necessary. Ethical and statutory codes for each agency identify those circumstances in which information held by one professional group may be shared with others to protect a child. Agencies should not disclose information given in confidence for any other purpose without consulting the person who provided it.
Confidentiality (The Scottish Office Department of Health, Professional Guidance issued by the GMC and UKCC, and the Caldicott Report on the Review of Patient-Identifiable Information)
Confidentiality of personal health information is the cornerstone of the patient/doctor/health professional relationship. In Scotland, guidance on handling personal health information rests on the Code of Practice on Confidentiality of Personal Health Information, issued to the NHS in 1990. The Code sets out the main principles which have to be followed by all NHS staff. The overriding principle of the Code is that information about the health and welfare of a patient is confidential in respect of that patient and such information should not be disclosed to other persons without the consent of the patient, except in certain well defined circumstances.
These are:
It is a matter for the health professional with overall responsibility for clinical care to determine whether the wider public interest outweighs the rights of a patient to confidentiality and warrants the disclosure of information. In reaching a decision, all relevant circumstances should be taken into account including the need to protect the public and any rights of the patient to have confidentiality of personal information about him or her protected.
Doctors Professional Accountability
Disclosure without consent is a complex issue. The General Medical Council's advice to doctors is that where they believe a patient to be a victim of neglect or physical or sexual abuse, and that patient cannot give or withhold consent to disclosure, information should be disclosed to the appropriate responsible person or agency where it is felt to be in the patient's best interests. Where such circumstances arise in relation to children, concerns about abuse need to be shared with other agencies such as social work services. It will usually, but not necessarily, be appropriate for those with parental responsibility to be informed.
Each Health Board and NHS Trust has appointed a 'Caldicott Guardian' who is responsible for the way that the organisation handles and protects patient-identifiable information. The Caldicott Guardian is a senior health professional, most usually the Director of Public Health at Health Board level and the Medical or Nursing Director within NHS Trusts. Any queries about the disclosure of personal health information should be referred to the Guardian. (More detailed information on the Caldicott Committee and the role of the 'Guardian' can be found on page 31).
Nurses and Midwives Professional Accountability
All nurses should be familiar with the United Kingdom Central Council's (UKCC) 'Guidelines for Professional Practice (1996)'. The booklet provides a guide for reflection on the statements within the 'Code of Professional Conduct'. It replaces three existing documents: 'Exercising Accountability'; 'Confidentiality'; and 'Advertising by Registered Nurses, Midwives and Health Visitors'. The designated, named or senior nurse should encourage staff to refer to the document, be available to advise them and ensure that the guidelines are covered in in-service training.
The first four clauses of the Code of Professional Conduct makes sure that nurses, health visitors and midwives put the interests of their patients, clients and the public before their own interests and those of their professional colleagues. They are as follows:
"As a registered nurse, midwife or health visitor you are personally accountable for your practice and, in the exercise of your professional accountability, must:
a) act always in such a manner as to promote and safeguard the interests and well-being of patients and clients;
b) ensure that no action or omission on your part, or within your sphere of responsibility, is detrimental to the interests, condition or safety of patients and clients;
c) maintain and improve your professional knowledge and competence; and
d) acknowledge any limitations in your knowledge and competence and decline any duties or responsibilities unless able to perform them in a safe and skilled manner."
Clause 10 of the UKCC Code of Professional Conduct states that:
"As a registered nurse, midwife or health visitor you are personally accountable for your practice and, in the exercise of your professional accountability, must ..... protect all confidential information concerning patients and clients obtained in the course of professional practice and make disclosures only with consent, where required by an order of a court or where you can justify disclosure in the wider public interest. Confidentiality should only be broken in exceptional circumstances and should only occur after careful consideration that can justify your action."
The following principles concerning confidentiality apply:
Where health information is provided by a child who, in the opinion of the health professional with overall responsibility for their clinical care, does not possess sufficient understanding to give or withhold consent to disclosure, a decision requires to be taken about whether to divulge that information to parents or guardians. Disclosure should only occur where it is felt to be in the patient's best interests.
Consent
All health professionals should ensure that young people are aware of their rights to confidentiality and consent and must assess the individual's maturity and ability to reason when giving consent.
The Age of Legal Capacity (Scotland) Act 1991 provides that a person under the age of 16 years shall have legal capacity to consent on his or her own behalf to any surgical, medical or dental procedure or treatment, including psychological or psychiatric examination, where, in the opinion of an attending qualified medical practitioner, he or she is capable of understanding the nature and possible consequences of the procedure or treatment. This means that a person of any age has the right to determine their own health care treatment without recourse to the views and wishes of their parents. Even if ordered by a Children's Hearing, medical examinations are governed by the provisions of the Age of Legal Capacity (Scotland) Act 1991. Children who consent to a medical examination may withhold their consent to any part of the examination including, for example, the taking of photographs. In order to ensure that children and their families give properly informed consent to medical examinations in child protection inquiries, the examining doctor, if necessary assisted by the social worker or police officer, should provide information about any aspect of the procedure and the uses to which these may be put. Where, in the opinion of the medical practitioner, the child is not capable of understanding the nature and possible consequences of the procedure or treatment, the medical practitioner should seek the consent of the child's parent or guardian. Where children give their consent, parents or carers should also be consulted as a matter of practice. Where a medical examination is thought to be necessary for purposes of obtaining evidence in criminal proceedings but consent to the examination is refused by the parent(s) or guardian, the Procurator Fiscal may consider obtaining a warrant for this purpose. Where, however, a child who has legal capacity to consent declines to do so, the Procurator Fiscal will not seek a warrant. If the local authority believes that a medical examination is required to find out whether concerns about a child's safety or welfare are justified, and parents refuse consent, the local authority may apply to a Sheriff for a Child Assessment Order (see Scotland's Children: Children (Scotland) Act1995 Regulations and Guidance, Volume 1: Support and Protection for Children and their Families).
A child subject to a Child Assessment Order may still withhold his or her consent to examination or assessment if he or she is deemed to have legal capacity.
A series of questions and answers prepared by Kathleen Marshall, in conjunction with the Yorkhill NHS Trust Rights of the Child Group offers a user friendly approach to the law and is to be found in Annex J.
Record Keeping
All professionals involved in inquiries need to record their findings and opinions carefully and legibly. Health professionals may also be required to produce records as evidence in later criminal or civil proceedings. Medical and other health care professionals should provide written reports of their findings when asked to do so by the local authority or the Reporter, as these agencies may need to take action on the basis of medical findings.
Staff should keep up-to-date case records of their involvement in any child protection case. Records should include:
The information received in referral must therefore always be written down accurately and in detail, either at the time or immediately afterwards. Child Protection Committees may develop standard referral forms for use by all local agencies. Records should note the date and time that any incident occurred and the date when the record was made. When recording their intervention and activity in child protection cases staff should take contemporaneous notes wherever possible, and should complete records as soon as possible after an event or interview. Original notes and case records, drawings or other written material should be retained even if information is condensed into summary reports, as these original notes are regarded as 'best evidence' by the courts.
Recording systems should meet the requirements of legislation on access to files and data protection. Storage arrangements should be adequately secure and protect client confidentiality. Professional records may need to be made available to the police or the Reporter when required.
Guidance for the retention and destruction of Health Records is set out in NHS MEL (1993) 152, Appendix A, paragraph 6 and Appendix B, 1b.
"Children's and Young Adult's Records (persons aged less than 16 on date of admission) shall be retained for a minimum until the person reaches 25 or 3years after death if this is earlier. At the conclusionof the period, the records may be destroyed, but there is no obligation to do so".
Caldicott Report on Review of Patient-Identifiable Information
The Caldicott Committee, set up to review all patient-identifiable information passing from NHS organisations in England to other NHS or non-NHS bodies for purposes other than direct patient care, medical research or where there is statutory requirement for information, published its report in December 1997. Whilst the Committee's remit did not extend to Scotland the principles considered apply equally here and The Scottish Executive Health Department has been considering how best to take forward a number of the Committee's recommendations.
One of the key recommendations of the Caldicott Report was that 'Guardians' of patient information should be nominated throughout the NHS. Each Health Board, Special Health Board and NHS Trust was asked to nominate a 'Guardian' by no later than 1 April 1999. This role is largely being performed at Health Board level by Directors of Public Health, and within Trusts by Medical or Nursing Directors. Within each GP practice it is proposed that there is a nominated lead for confidentiality issues.
Guardians will be charged with promoting the highest standards for safeguarding the confidentiality of patient information in their organisation. They will also be responsible for developing clear rules about disclosing patient information to other organisations. This work should improve the management of confidential information and will support action to prevent any unnecessary identification of individual patients. Detailed guidance entitled Protecting and Using Patient Information - A manual for Caldicott Guardians issued under cover of NHS MEL(1999)48 provides guidance on the key tasks that need to be addressed by the NHS in Scotland and Guardians. It also serves as a resource for Guardians identifying and summarising key guidance and flagging up sources of advice. Much of the guidance builds on existing practice.
Further guidance on implications of the Data Protection Act 1998 for the NHS in Scotland will be issued by The Scottish Executive Health Department before the Act is fully implemented on 1 March 2000.
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