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Data Protection; Child protection
Index
Introduction
Background Facts
Disclosure
Caution
Section 47 & Working Together to Safeguard Children
Checklist before disclosure
Consent
Parental Responsibility
Adults working with children or vulnerable adults
Further Information
Introduction
26,800 children were placed on the Child Protection Register between 31 March 2000 and 31 March 2001.
Placement on the register is based upon a prospective assessment of the likelihood of continuing risk of significant harm.
The NSPCC report in Out of Sight that dozens of infants and children are killed by adults in this country
every year.
Between 30 and 106 children per year died before the Children Act was passed by Parliament. The Act came into force in 1991.
Doctors have a legal and professional duty to maintain patient confidentiality but also have a duty to protect vulnerable children.
If you have reason to believe that a child is a victim of abuse this must be the paramount consideration.
A GP is often the first to become aware of suspected child abuse and must always alert social services as soon as possible.
Background Facts
The Children Act Report 2001 reveals that;
- Child maltreatment occurs in the context of social disadvantage, stress, health problems (particularly mental health) domestic
violence and alcohol abuse.
- Family relationships are in general more important than demographic factors.
- Most maltreatment occurs in families where children lived with both birth parents.
- Seriously maltreated children are often not close to parents and cannot respect them
- Maltreating parents have negative, critical views of their children.
- The research points to the need to identify children whose parents are in destructive relationships and not simply to respond to violence or neglect.
- Health professionals were the most likely to have been previously involved with the children and families, and in nearly a third of
the cases the children were completely unknown to social services.
- Only one of the 40 cases of abuse scrutinised was seen as highly predictable, and only three as highly preventable.
- Concerns expressed in the reviews included inadequate sharing of information, poor assessments, ineffective decision making, lack of
inter-agency working, poor recording and a lack of information on significant males in the child's life.
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Disclosure
Caution
You may be required to defend any disclosure without consent, but equally may be challenged to explain why you did not help to protect a vulnerable child.
If you are in any doubt about an individual case seek specific advice.
The LMC, GMC, your medical defence organisation or a suitably qualified colleague, such as the named PCT clinician with special responsibility for
child protection, may be able to help.
The PCT is required to have a formal procedure for dealing with potential cases of child abuse and must have a named doctor with
special responsibility for child protection who can advise on the correct procedures.
Section 47 & Working Together to Safeguard Children
Section 47(9) of the Children Act provides that any other local
authority, local education authority, local housing authority and health authority is under a duty to co-operate and assist the authority in conducting their enquiries under S47.
A co-ordinated multi-disciplinary approach is vital if children are to be protected from suffering and death.
Increasingly doctors are being asked by social workers to disclose confidential medical information without consent in relation to child
protection.
Seeking parental consent could place a child in danger and this must always be taken into account when making any decision.
We have been advised by the GMC that; "No part of the Children Act requires disclosure without prior consent." However, co-operation
with other agencies is encouraged by the GMC in order to safeguard the welfare of children.
Working Together to Safeguard Children is intended to provide a National Framework within which agencies and professionals at local
level work together. This document recognises that it "does not have the power of statute but should be complied with unless local circumstances indicate exceptional reasons which justify variation."
Social workers making Section 47 enquiries have sometimes claimed that GPs have a statutory duty to disclose data without consent for this purpose.
This is not our current understanding of the situation.
However, even though you are not REQUIRED to disclose data without consent, it may be essential to protect the child
GPs should remember the absolute rights enshrined in the Human Rights Act which are;
- Article 2 - the right to life
- Article 3 - the right not to live in fear of inhumane treatment or torture
Working Together to Safeguard Chidren takes into account "the principles contained within the United Nations Convention on the
Rights of the Child, ratified by the UK Government in 1991. It also takes account of the European Convention of Human Rights, in particular Articles 6 and 8. It further takes account of other relevant
legislation at the time of publication, but is particularly informed by the requirements of the Children Act 1989, which provides a comprehensive framework for the care and protection of children."
In relation to section 47 " this document does not have the full force
of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation."
Important Legal Judgement
Checklist before disclosure
Disclosure without consent in a case of suspected child abuse is always a matter of finely balanced professional judgement.
1) Social services should provide sufficient information to justify any request for disclosure to them without consent.
2) You must be prepared to defend any disclosure without consent in a court of law or before the GMC if you;
- disclose confidential medical data without prior consent
- fail in your duty of care to protect a vulnerable child
3) GMC and BMA advice is that medical data may be disclosed without prior consent if it is;
- overwhelmingly in the interests of the patient
- overwhelmingly in the public interest
4) Data disclosed without prior consent in those circumstances must be;
- restricted to the minimum that will serve the purpose
- disclosed on a strict "need to know" basis
- disclosed only to someone who holds a similar duty of confidentiality.
- if you judge that the child is not at risk then the Social Services may seek to obtain a court order that requires you to disclose the data without consent.
5) Disclose facts rather than opinions, but if your opinion is essential make sure that you can justify it.
6) Take particular care when disclosing details of a history of mental illness. This data may well have been recorded and processed on the
basis of inadequate consent and could be particularly damaging to the patient. However, if a child is at risk such disclosure may be vital.
See Important Legal Judgement
(The RCGP has asked the government for urgent clarification of the legal position in relation to the dilemmas relating to confidentiality and
disclosure faced by GPs dealing with suspected cases of child abuse. September 2004.)
Consent
Data disclosed to Social Services is likely to be shared on a wider basis that may not be immediately apparent to the GP.
This makes it particularly important that valid prior consent is obtained wherever it is practicable and will not endanger the child.
- the patient must be competent to give consent
- the patient must be fully informed
- the patient must be able to understand that information
- the consent must be given entirely voluntarily
The consent of the parent or parents may be required but a child that is "Gillick Competent" may also be able to consent to disclosure of medical
data relating to the abuse.
Always document the consent process carefully in the notes and obtain explicit written consent to disclosure if possible.
Parental Responsibility
Parental responsibility is defined in the Children Act 1989 as; "All
rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to a child and his property."
A parent with parental responsibility may consent to disclosure on behalf of a child who does not have Gillick competence.
- If a child's parents are married they both have parental responsibility automatically.
- Unmarried mothers automatically have parental responsibility.
- An unmarried father does not have parental responsibility even though he is the biological father unless;
- both parents have registered a Parental Responsibility Agreement with the Principal Registry
- the father has obtained a Parental Responsibility Order from the court
- the father takes out a Residency Order
- the father marries the child's mother
- The parental responsibility of either the mother or father may be withdrawn or restricted by a court of law.
- If a child is subsequently brought into a family he or she becomes a "child of that family" in legal terms. This may confer parental rights
on additional "parents" in the case of divorce and remarriage, but does not remove parental rights that are already established.
The Adoption and Children Bill, currently going through Parliament, may in future give automatic parental responsibility to unmarried
fathers, but this is unlikely to be retrospective.
If in doubt about parental responsibility and the ability to consent on behalf of the child seek legal guidance before disclosure.
Adults working with chidren or vulnerable adults
A GP will often be the first to become concerned about a patient who is employed to care for children or vulnerable adults.
This creates a dilemma for the doctor who in general has a duty to preserve patient confidentiality and protect the patient's interests.
Disclosure without the valid, explicit consent of the patient may be
permissible on occasion if it is either;
- essential to protect an individual child or vulnerable person,
- overwhelmingly in the public interest
Disclosure is complicated by the fact that the risk assessment is generally subjective and may be based upon medical data that is quite limited.
The GP must carefully balance the risks of disclosure against non-disclosure, based upon medical experience and judgement.
The GP must be particularly careful to ensure that patients who have suffered mental health problems in the past are not treated unfairly if
there are no current or probable future risks.
The consequences for the patient may be very serious, therefore it is generally better to gain the patient's valid and explicit consent to
disclosure, unless this might put the victim at an even greater risk.
The Protection of Children Act 1999 makes it a duty of the Secretary of State to draw up a Protection of Children Act List to inform employers about people who are not considered suitable to work
withchildren or vulnerable adults.
The GP's disclosure may lead to the patient being considered forinclusion on that list.
Before disclosing confidential data without consent GPs are advised to seek advice based upon anonymised patient details from the LMC,
GPC, medical defence organisation or relevant professional colleagues who share a strict duty of confidentiality.
The official guidance
Working Together to Safeguard Children makes it clear that;
the welfare of the child is paramount.
If a GP feels that an adult's problems or behaviour may be causing or putting a child at risk of serious harm he or she should contact the
named doctor at the PCT with special responsibility for child protection so that the formal procedures may be initiated.
Further information;
Department of Health; Safeguarding children
(Special attention Appendix 3)
Extract from
GMC Guidance; Confidentiality: Protecting & Providing Information
Section 3
Disclosures to protect the patient or others
36. Disclosure of personal information without consent may be justified where failure to do so may expose the patient or others to
risk or death or serious harm. Where third parties are exposed to a risk so serious that it outweighs the patient's privacy interest, you should seek consent to disclosure where practicable. If it is not
practicable, you should disclose information promptly to an appropriate person or authority. You should generally inform the patient before disclosing the information.
38. Problems may arise if you consider that a patient is incapable of giving consent to treatment or disclosure because of immaturity,
illness or mental incapacity. If such patients ask you not to disclose information to a third party, you should try to persuade them to allow an appropriate person to be involved in the consultation. If they
refuse and you are convinced that it is essential, in their medical interests, you may disclose relevant information to an appropriate person or authority. In such cases you must tell the patient before
disclosing any information, and, where appropriate, seek and carefully consider the views of an advocate or carer. You should document in the patient's record the steps you have taken to obtain consent and
the reasons for deciding to disclose information.
39. If you believe a patient to be a victim of neglect or physical, sexual or emotional abuse and that the patient cannot give or withhold
consent to disclosure, you should give information promptly to an appropriate responsible person or statutory agency, where you believe that the disclosure is in the patient's best interests. You should usually
inform the patient that you intend to disclose the information before doing so. Such circumstances may arise in relation to children, where concerns about possible abuse need to be shared with other agencies
such as social services. Where appropriate you should inform those with parental responsibility about the disclosure. If, for any reason, you believe that disclosure of information is not in the best interests
of an abused or neglected patient, you must still be prepared to justify your decision.
Extract from BMA Ethics guidance; Confidentiality and disclosure of health information
"Reducing abuse or neglect of vulnerable people, including children,
the elderly or the mentally incapacitated is invariably in the public interest and is addressed below.
Emergencies
Disclosure should be made if it is necessary for the provision of
emergency treatment or to avert an immediate and serious harm to any person. The BMA emphasises that information can be disclosed where it is necessary to prevent or lessen a serious and imminent
threat to the life or health of the individual concerned or another person. However, if the patient has previously made explicit that disclosure is not permitted, and has acknowledged the risks to him or
herself, information must not be released unless essential to prevent another person from suffering serious harm."
British Council
Children's rights; a National and International Perspective
IRT: Information sharing to improve services for children; Guidance
on Information Sharing
Safe guarding children; what to do if you're worried a child is being
abused; Children's Services Guidance
Safeguarding Children and Young People: Roles and Competences for
Health Care Staff Intercollegiate Document - April 2006
CED 01/08/02 (Updated 23/06/03, 16/10/03, 21/01/04, 09/05/05, 13/07/06)
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