The aim of this chapter is to facilitate and provide clear guidance on the exchange of personal and sensitive information for the investigation and responding to suspected Abuse and neglect of adults within South Yorkshire. Signatory organisations to the Safeguarding Adults Procedures have already committed to working together on the identification, investigation, treatment and prevention of abuse or mistreatment of Adults at Risk. This chapter provides a clear basis for operational staff to improve information exchanges to support earlier identification, prevention, investigation and treatment of abuse of Adults at Risk.
No Secrets to Care act (2014) states that the government expects organisations to be sharing information about individuals who may be at risk from abuse. It is important to identify an abusive situation as early as possible so that the individual can be protected. Withholding information may lead to abuse not being dealt with early enough. Confidentiality must never be confused with secrecy.
Investigating and responding to suspected abuse or neglect requires close co-operation between a range of disciplines and organisations. Safeguarding Adults work is concerned with sharing personal information, both about someone who is alleged to have experienced abuse and an alleged source of harm. It applies to information sharing in relation to situations involving Adults who meet the criteria for Safeguarding Adults interventions: any adult ‘ CHANGE DEFINITION TO CARE ACT ’. The chapter applies to all organisations with responsibilities for the provision of either assessments or services under these Procedures.
Non-partner organisations are not precluded from involvement in the information sharing process, including Safeguarding Case Conferences. The contact person within a non-partner organisation should be a senior member of staff and the information shared would be specifically relevant to that organisation’s function and statutory powers.
Purpose of Information Sharing
The information exchanged under this chapter will only be used for Safeguarding Adults purposes and where it meets these conditions:
- A criminal offence has taken place;
- It may prevent crime;
- The alleged adult is at risk of harm;
- Staff, other service users, or the general public may be at risk of harm;
- For early intervention and identification of abuse;
- For investigations held under these procedures.
This chapter has been approved only for the purposes listed above.
If other reasons for sharing information are subsequently identified, these will be considered and amendments approved by the appropriate Caldicott Guardian of the partner organisations. The parties to the agreement may share information for other purposes as stipulated in other Service Level Information Sharing Protocols.
Information Sharing when the Adult has Capacity to Consent
There are situations where information can be shared legally without obtaining the consent from an individual. An element of information sharing will need to happen as part of the Strategy Meeting/discussion where initial assessments of the risk factors affecting an aldult at risk are raised.
In this situation information can be shared without consent, relying upon statutory powers and duties. As part of the Planning Meeting following decisions will be made:
- Any legal requirement to gain consent;
- When and who will gain consent if required.
Even if there is no legal requirement to obtain consent before sharing information, it is often good practice to do so. The emphasis throughout this chapter is on obtaining the informed consent of the client to share information at the first point of contact. Informed consent is a freely-given specific and informed indication of a person’s agreement to a course of action where information is given to that person about the proposed course of action. It may be expressed verbally or in writing (except where an individual cannot write or speak when other forms of communication may be sufficient). Consent may be given in the form of an advanced statement.
Workers need to make sure that the adult understands what will be recorded, what the information will be used for and with whom it might be shared. If the worker does not explain this, they will not be able to give valid informed consent for information sharing to take place.
The following information should be recorded clearly within their own organisation’s record when consent to share information has been freely given:
- Why the information needs to be shared;
- What information the service user has consented to be shared;
- Who the service user has consented for the information to be passed to, and any limitations to this;
- That this has been explained to the service user and they understand the implications of giving consent to share their information;
- Any comments made by the service user in relation to the disclosure;
- Date consent given;
- Decisions to refer/not to refer.
Consent should be reviewed through existing working practices, for example, when the service user’s personal circumstances change, or an investigation is in progress.
Information given to an individual member of staff, or organisation representative, belongs to the organisation not that member of staff. Personal information shared with a worker in the course of their employment is:
- Confidential to the employing organisation and can be shared within that organisation;
- Should only be used for the purposes for which it was intended;
- Can be shared with another organisation either when:
- Permission is given by the person about whom the information is held;
- There is an overriding justification, statutory power or duty to share information without the person’s consent
Information Sharing when the Adult does not have the Capacity to Consent to Information Sharing
Upon reaching the age of 18, no one else can take decisions on their behalf. If an adult is not competent to take their own decisions, professionals should share information that is in their ‘best interests’. The capacity to be able to give consent can be assessed by considering:
- Has the person got the ability or power to make a particular decision;
- Have they got the ability to understand and retain the information relevant to the decision;
- Will they be able to understand the reasonably foreseeable consequences of deciding one way or the other;
Will they have the ability to communicate the decision they have come to.
Where a person is not the legal representative but acts as 'carer' to a person not capable of giving consent, a mental capacity
assessment and best interest decision should be undertaken. See Section 5, Best Interest below.
The Mental Capacity Act 2005 and the Code of Practice set out the best interest’s checklist to which professionals must have regard when determining what is in the best interests of an individual.
Where an Adult at Risk is judged to lack Capacity in relation to a specific decision, this decision should be made in their ‘best interests’.
In the context of determining whether or not medical treatment should be provided to someone who lacks capacity, the House of Lords has defined best interest as an intervention which is: ‘Necessary to save life or prevent deterioration or ensure an improvement in the patient’s physical or mental health; and in accordance with a practice accepted at the time by a responsible body of medical opinion skilled in the particular form of treatment in question.’ (Code of Practice: Mental Health Act 1983)
In other aspects of decision making, particularly in relation to information sharing, the law is less clear. However, the Law Commission has recommended that in deciding what is in a person’s best interests consideration should be given to the following:
- Ascertainable past and present wishes and feelings of the person concerned and the factors the person would consider if able to do so;
- The need to encourage the person to participate as fully as possible in decisions;
- The views of other people whom it is appropriate and practical to consult about the person’s wishes and feelings and what would be in their best interests;
- Any person named by the client as someone to be consulted on those matters.
Anyone (whether a spouse, relative, friend or other person) engaged in caring for the client or interested in the client’s welfare.
The holder of any lasting power of attorney.
Any deputy appointed for him by the court.
Achieving the purpose of an action or decision by means which least restrict the freedom of action of the person.
If someone is unable to give consent and there is no-one to represent them, we should record that they cannot give consent and only share information where necessary in their best interests or where we have a statutory duty to provide care.
If an adult is unable to give informed consent, then decisions to disclose information will generally be taken by the professional concerned. Any decision should take into account the person’s best interests and as necessary the views of relatives and carers. An earlier refusal to particular information being passed on, given while the person had capacity to decide, should normally be regarded as decisive.
Where a service user’s capacity may change from day to day (for example as a consequence of fluctuating mental health), a decision on consent should be deferred wherever possible, until such a time as they are able to be involved in the decision making process, as long as this does not adversely impact on the vulnerability of the adult.
Where it is considered that a service user does not have the capacity, a record should be made of this decision and the steps taken by the professional to reach a decision about whether information should be shared.
Information Sharing when the Adult at Risk withholds Consent to Share Information
Individuals have the right to refuse, or withhold consent, for your organisation to share information in relation to the suspected abuse. Wherever possible the views and wishes of the Adult at Risk will be respected. However, if it is thought that they are in a situation that results in their abuse or if they may be abusing another person(s), the duty of care may override the individual’s refusal.
The need to protect the individual or the wider public outweighs their rights to confidentiality. Decisions to share information about the Adult at Risk must be made by the organisation and not that member of staff acting on their own. This, however, should not cause unnecessary delay in the disclosure process. The worker must explain to the person why the disclosure needs to take place and to whom the information will be passed. This should generally be done unless it would increase the risks of harm. The person’s decision to withhold consent to share information must be recorded, along with any further decisions to sharing information.
Any decisions to share information without consent must not interfere with that person’s human rights.
Sharing Information with Carers, Parents, Family, Partners
When the Adult at Risk has the Capacity to make the decision, it should be up to them to decide what information is disclosed to their carers/ parents/ family/ partners, and records should reflect this.
When the adult does not have the capacity, consideration should be given to when to share information with carers/parents of the Adult at Risk. In addition, consideration must be given to the relationship between the carers/parents and the alleged abuser. Clear decisions should be recorded about when and what to share, as well as whom is the most appropriate person to talk to the parent/carer. Generally some assessment should be made as to whether the sharing of certain information with a particular person or organisation is in the adult’s best interests. This should all form part of the decision making in the best interest decision.
Sharing Information with Third Parties about the (alleged) Source of Harm
Organisations and workers must ‘honestly and reasonably believe’ that the sharing of information is necessary to protect an Adult at Risk or the wider public and must use the test of ‘pressing social need’. To pass this test the relevant organisation must consider the following issues:
- How strong is the belief in the truth of the particular allegation? The greater the conviction that the allegation is true, the more compelling the need for disclosure;
- What is the interest of the third party in receiving the information? The greater the legitimacy of the interest in the third party in having the information, the more important need to disclose;
- What is the degree of risk posed by the individual if disclosure is not made?
Decisions about who needs to know and what needs to be known should be taken on a case by case basis. It is vital there is a balancing exercise undertaken weighing the serious consequences of disclosure against risks to Adult at Risk. Clearly the issue of proportionality will be vital.
This decision will be made at the strategy discussion stage, where it will be determined who within the investigation team will contact and speak to the alleged source of harm and how this will be managed.
Disclosures to other Organisations Outside of the Safeguarding Outcome Meetings
The exception to disclosure outside of the safeguarding process will be where the risk posed by an individual in the community cannot be managed without the disclosure of some information to a third party outside statutory organisations. An example of this may include an employer, voluntary group organiser or church leader who has a position of responsibility/control over the individual and other persons who may be at serious risk.
Caution should be exercised before making any such disclosure: it should be seen as an exceptional measure. The following check list may be of assistance:
- The individual presents a risk of serious harm to the Adult at Risk, or to those for whom the recipient of the information has responsibility. The right person will be the person who needs to know in order to avoid or prevent the risks;
- There is no other practical, less intrusive means of protecting the Adult at Risk, and failure to disclose would put them in danger. Also, only that information which is necessary to prevent harm should be disclosed, which will rarely be all the information available.
- The risk to the individual should be considered although it should not outweigh the potential risk to others were disclosure not to be made. The individual retains his rights (most importantly his Article 2 right to life) and consideration must be given to whether those rights are endangered as a consequence of the disclosure;
- The disclosure is to the right person and that they understand the confidential and sensitive nature of the information they have received. The information will not be disclosed by the recipient third party without the express permission of the original disclosing organisation. Consider consulting the individual about the proposed disclosure. This should be done in all cases, unless to do so would not be safe or appropriate. If it is possible and appropriate to obtain the individual’s consent, then a number of potential objections to the disclosure are overcome. Equally, the individual may wish to leave the placement rather than have any disclosure made. If appropriate, this would also avoid the need for disclosure;
- Ensure that whoever has been given the information knows what to do with it. Again, where this is a specific person, this may be less problematic but in the case of an employer, for example, advice and support may need to be given.
Access and Security
Access to personal information must be adequately protected from unauthorised or inappropriate access. All organisations must implement and maintain appropriate security measures to protect confidentiality, integrity and availability of personal information.
Adopted security measures must be effectively communicated to all staff and system users, detailing individual roles and responsibilities. System users must be provided with sufficiently detailed training to enable them to undertake their duties and maintain information security