Confidentiality Policy

Westmorland & Furness Council Children's Services recognises its common law duties to safeguard the confidentiality of all personal information. Wherever disclosure of confidential information to another person or organisation is being considered, a check will always be made to ensure that such disclosure is lawful.

All Council staff must be made aware that the General Data Protection Regulation (UK GDPR) and Data Protection Act 2018 apply to the processing of all personal data, both in paper and electronic records. Where disclosure is proposed, and there is any doubt as to whether the Data Protection Act / UK GDPR apply or whether only the common law of confidentiality applies, advice will always be sought, from the Council's Data Protection Officer and/or Legal Services.

The Council will always record its reasons for deciding not to observe any duty of confidence it owes to a person who is the subject of information disclosed. See Section 5, The Common Law Duty of Confidence.

E-mail messages sent via the internet can be intercepted, read and changed relatively easily. Consequently, Council staff will not use the internet to pass on personal identifiable information about service users unless a secure or encrypted connection is in place.

Please refer to the Children's Services Information Sharing Protocol.

See Appendix 3: Guide to Marking E-mails High Importance and Confidential

The Council's conditions of employment, issued as part of every employee's contract, detail the obligations placed upon the Council staff.

Staff employed with the Council will come into contact with confidential information/data relating to the work of the Council, its service users and other staff. Staff are bound by their conditions of service to respect the confidentiality of any information that they may come into contact with and under no circumstances should such information be divulged or passed to any persons or organisation in any form unless such disclosure is authorised under this policy.

Any unauthorised disclosure of confidential information by Council staff may result in disciplinary action. Staff may also face prosecution under the Data Protection Act 2018.

Where Council staff misuse confidential information, e.g. disclose their password to someone else or use someone else's password to gain access to systems, they could face disciplinary action that could lead to dismissal. They may also be prosecuted under the Computer Misuse Act 1990.

Managers must ensure that confidentiality is discussed with all new employees, as part of their induction. Managers must ensure that all new members of staff undertake the mandatory Information Security e-learning on the County Council's e- Learning Zone as part of induction, and that this is refreshed annually. It is recommended that staff acknowledge that they have taken note of the contents of this policy. See Westmorland & Furness Council's e-Learning Zone on Learning Pool.

Volunteers, work experience students and Commissioned Service Provider staff working on behalf of Westmorland & Furness Council must also have their role in maintaining confidentiality made clear by the member of staff responsible for them and must be aware of and adhere to this policy.

Information sharing: advice for practitioners providing safeguarding services (March 2015) states that:

Wherever possible, you should seek consent or be open and honest with the individual (and/or their family, where appropriate) from the outset as to why, what, how and with whom, their information will be shared. You should seek consent where an individual may not expect their information to be passed on and they have a genuine choice about this. Consent in relation to personal information does not need to be explicit – it can be implied where to do so would be reasonable, i.e. a referral to a provider or another service. More stringent rules apply to sensitive personal information, when, if consent is necessary then it should be explicit. But even without consent, or explicit consent, it is still possible to share personal information if it is necessary in order to carry out your role, or to protect the vital interests of the individual where, for example, consent cannot be given. Also, if it is unsafe or inappropriate to do so, i.e. where there are concerns that a child is suffering, or is likely to suffer significant harm, you would not need to seek consent. A record of what has been shared should be kept.

It is also possible that an overriding public interest would justify disclosure of the information (or that sharing is required by a court order, other legal obligation or statutory exemption). To overcome the common law duty of confidence, the public interest threshold is not necessarily difficult to meet – particularly in emergency situations. Confidential health information carries a higher threshold, but it should still be possible to proceed where the circumstances are serious enough. As is the case for all personal information processing, initial thought needs to be given as to whether the objective can be achieved by limiting the amount of information shared – does all of the personal information need to be shared to achieve the objective?

Some Council staff may have access to commercial information, agreements or contracts. This information must be treated as confidential, and only discussed/disclosed where this forms part of the employee's remit within the organisation. Staff should consult their manager if they are in any doubt.

Access to confidential information or anonymous data may be sought for research, audit or monitoring purposes, either by other council areas or by outside organisations or public bodies.

Internal requests related to research projects must be approved and a formal submission will be required.

All external requests or enquiries may need to be directed to the Information Security Manager for clarification or Legal Services for their approval.

All media enquiries should be referred to the Chief Executive via the press office.

The Police do not have automatic rights to personal information held by the Council about service users. The matter should always be referred to a manager and/or the Information Security Manager/Legal Services.

Any requests for access to confidential information held by the Council for the purpose of any legal proceedings must be referred to the Council's Legal Services. A Court Order is required in order to release such information for legal proceedings. Verbal or written requests from lawyers are not sufficient. Staff should also seek advice from their manager and, where advised, the Data Protection Officer to ensure that correct action is taken.

Personal information held about children is subject to a legal duty of confidence and should not normally be disclosed without the consent of the subject. The exceptions to this are set out in Paragraph 2.2 and Section 5, The Common Law Duty of Confidence.

The legal framework for confidentiality is contained in the common law duty of confidence, the Children Act 1989, the Human Rights Act 1998, the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018.

Whilst the general principle is that information obtained about children and their families must be shared with them and not with others, there are exceptions. The public interest in safeguarding the welfare of children overrides the public interest in maintaining confidentiality, and the law permits the disclosure of confidential information where this is necessary to safeguard a child or children. Effective information-sharing underpins integrated working and is a vital element of both early intervention and safeguarding.

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

Those working with children and families must make it clear to them that confidentiality may not be maintained if the disclosure of information is necessary in the interests of the child. Even in these circumstances, disclosure will be appropriate for the purpose and only to the extent necessary to achieve that purpose.

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 on children and families 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 advocates, solicitors or external researchers request access to information, this should only be given if written consent is given by the person concerned or if a Court Order requires it.

Children and families should be informed of the circumstances in which information about them will be shared with others, and their consent to this sharing obtained. They should also be helped to understand that, in some situations, sharing information without consent could be justified – for example to safeguard a child or adult at risk. 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.

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

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

There are also situations where council employees have a legal duty to share information.

For example:

• Where professionals are undertaking a Section 47 Enquiry in relation to a child;
• Where information is requested in the furtherance of an inquiry or tribunal, or for the purposes of a Serious Case Review.

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 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 or a Childrens Guardian is appointed;
• Where information is requested by Inspectors of the Regulatory Authority - who have specific statutory powers that permit access to records.

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.