Everything you need to know about consent & information sharing

Over the past 50 years, nationally, reports and inquiries have shown that we need to collaborate more effectively to protect and safeguard children. Key findings include:

Working together with colleagues is crucial for supporting children, young people, and their families.

So, asking for consent to share information is an essential part of relational practice in any field which respects the privacy and dignity of the people we work with. When people share their stories with us, it is a privilege we hold, and as such their private information should always be handled with care and sensitivity.

That said, there are times when it is absolutely necessary, appropriate and proportionate to share information in order to protect the child concerned. Asking for consent in these circumstances could put a child at greater risk of harm, and any delay in sharing information could be detrimental.

In these cases, information sharing should still be as respectful and transparent as is possible, and safe. Sharing only the information which is relevant and necessary, and being clear and transparent about rationale for doing so is an essential part of doing this well.

Therefore, how can you be confident that consent is valid? How do you know when to share information? We've broken it down into the following 3 areas:

Consent is one of the lawful bases for processing personal information under Article 6 and article 9 of the UK GDPR. Consent is not generally the most appropriate lawful basis to rely on when sharing information for safeguarding or child welfare purposes due to issues with reliability, capacity, legal obligations, and the need for a more robust basis for processing in these sensitive situations. Instead, relying on other lawful bases like public task or vital interests is generally more appropriate.

The UK GDPR sets a high standard for consent. It must be specific, freely given, unambiguous, time limited and capable of being withdrawn. The data subject (the individual to whom the personal information relates) must have given consent freely and without conditions attached to the processing of their personal information for one or more specific purposes. The individual must also be allowed to freely withdraw their consent at any time and the processing of that data must stop.

These points are the basis for any consent agreement, which respects the rights and dignity of the person and their information. Alongside these points would be specifics relating to the activity or service provided by your organisation. For an example of a consent form, the NSPCC has developed a helpful template for events and activities which can be found here.

The UK GDPR gives individuals specific rights over their personal data or information. In summary an individual’s rights are:

(a) the right to access personal data held about them (the right of subject access)

(b) the right to be informed about how and why their data is used – a Privacy Notice details privacy information

(c) the right to have data rectified, erased or restricted

(d) the right to object

(e) the right to portability of data; and

(f) the right not to be subject to a decision based solely on automated processing

If an individual has requested that their data or information be deleted, this should be checked against your local data protection policies and procedures or discussed with your data protection lead.

Further information can be found here and you should seek legal advice when these rights may or may not apply to your particular case.

Whenever a professional requires the consent of a client, whether adult or child, to a particular decision or course of action, the issue of their capacity to make the decision in question must be considered.

For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the particular intervention in question at that particular time.

Capacity relates to the following:

(a) Legal capacity - Does the person hold legal parental responsibility for the child? Do they essentially have the right to provide consent? Children over the age of 16 years are able to provide consent in their own right. That said, Fraser guidelines recommend that it is always best to encourage parental involvement wherever safe to do so.

(b) Mental capacity - The Mental Capacity Act 2005 defines a person who lacks capacity as a person who is unable to make a decision for themselves because of an impairment or disturbance in the functioning of their mind or brain. Considering if the person is able to understand what they are signing up to is essential. Capacity may be impacted by mental health difficulties, poor health and/or substance misuse difficulties.

Once it has been determined that a person has the capacity to make a particular decision at a particular time, a further requirement (under the common law) for that consent to be valid is that it must be given voluntarily and freely, without pressure or undue influence being exerted on them.

Information sharing in a safeguarding context means the appropriate and secure exchange of personal information, between practitioners and other individuals with a responsibility for children, in order to keep them safe from harm.

It is important to remember that safeguarding is everyone’s business. As such all practitioners, agencies and organisations are responsible for the information they hold about a child or family. They should not assume that someone else will pass the information on, each person is responsible for what they know, what they have observed, the information that they hold.

Information sharing should be timely, within local areas and across boundaries as necessary and proportionate. Information should be shared securely and should be recorded.

Information sharing is essential for identifying patterns of behaviour or circumstances in a child's life that may evidence that they are at risk of harm or are being harmed and need some form of support or protection. This includes but is not limited to:

Information can be shared to safeguard and promote the welfare of children, as set out in Working Together 2023 (the statutory guidance for all organisations and agencies who have functions relating to children). The guidance states that practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks of concerns about the safety and welfare of children.

Sharing information early helps to ensure that a child or young person receives the right services at the right time. Practitioners should be alert to the need to share important information about any adults a child or young person has contact with that may impact the child's safety or welfare.

The principles provide 7 questions to ask yourself to assist in being able to distil thinking, provide rationale, and ensure good practice when information is shared.

It is helpful to talk this through with someone if you are unsure. Discuss it with your designated safeguarding lead, or contact your local Children Services for advice and support.

Remember:

Building a relationship of trust is essential when working with children and families. It is crucial to foster a collaborative partnership, where effective communication and attentive listening are practised. Recognising that children and families are experts in their own lives ensures that the services offered are both effective and relevant to their needs.

When sharing information, always consider the respect and trust you have built with the child and family. The legal framework may seem complex, and sometimes a lack of clarity can lead to the mistaken belief that information cannot be shared without explicit consent.

Be mindful of the power dynamics in your relationship and strive to share this power with the child and family, respecting their choice about whether and how their information is shared or used, whenever it is safe to do so.

If you have concerns about a child’s safety or well-being and believe it is necessary to refer to support services, aim to be transparent and honest about your concerns. This openness can encourage children and parents/carers to trust you and engage with the help offered.

When it is necessary to share information to protect a child from harm, always try to involve the child, their parents, or carers by explaining who you intend to share information with, what information will be shared, and why. This should be done whenever it is safe and practical.

If you have a professional or legal duty to share certain information, and the child or carer does not have a choice in this matter, they should still be informed about what information has been shared and how it will be used, whenever possible and safe. However, do not inform them if doing so could put the child or others at further risk of harm or could compromise effective safeguarding arrangements, including police investigations.

In any situation where children or their parents/carers object to information sharing, but you decide it is necessary, ensure you document your reasons and the legal basis for doing so.

In conclusion, safeguarding children is a paramount responsibility that requires balancing the importance of consent and the necessity of information sharing. Professionals must ensure that consent is informed, voluntary, and valid, while also understanding when it is appropriate to share information without consent to protect a child from harm. Effective communication, transparency, and adherence to legal standards are essential in maintaining trust with children and their families. By following the principles and guidelines outlined, professionals can navigate the complexities of consent and information sharing, ensuring the safety and well-being of the children they serve.

LSCP Information Sharing Guidance. https://www.londonsafeguardingchildrenprocedures.co.uk/info_sharing.html

Information Sharing Advice for practitioners providing safeguarding services for children, young people, parents and carers. May 2024.