In cases of abuse or risk of harm to a child or vulnerable adult, consultation about sharing should not apply e.g. in the case of a five year old child, who may be at risk of abuse by a parent, or is suffering lack of care, the parent’s consent is not a determining factor.
When the Child Protection Concerns arise, any requirement to obtain a child/young person’s consent should also be discounted in normal circumstances. For example, if a 13 year old child, “who is deemed to have capacity”, tells a practitioner about information which merits child protection procedures being applied, the issue of consent is not relevant.
Equally, if it is believed the child has been abused, or is at risk of abuse or serious harm, or that other children may be at risk, the withholding of consent by the child should not prevent any decision to share information. The issue may require sensitive and supportive handling but consent to allow sharing should not be a barrier.
The decision to share information without an individual’s consent is a difficult one and can pose challenges for staff. This may apply in relation to circumstances which may arise when staff have a primary involvement with one member of a family or extended family but concerns arise about the safety of another family member e.g. a child, because of that individual adult’s behaviour. An example of this would be where an addiction worker becomes aware that a service user has bought no food for their young family and has spent all their income on drugs.
In such circumstances, practitioners must make an assessment of the risk of significant harm which the child may face and whether this risk is greater than the risk of any break of privacy, which sharing information about the parent may pose.
In all circumstances, the legal test contained in the Children’s (Scotland) Act 1995 – “the welfare of the child is paramount” should apply.
Any practitioner who makes a considered decision to share information about a child or vulnerable adult without their consent should consider:
- Is it in the best interest of the child or vulnerable adult?
- Is the risk to the child or vulnerable adult heightened by not sharing?
If it is = We all have a duty of care
On this basis the practitioner will be acting within the spirit and intention of the legislation, national guidance and local guidance regarding information sharing among partner agencies and is supported by this.
Staff need to record why the decision was made, what information is being shared, with whom and who was involved in the decision. This should include notification to the receiving partner of the decision to override consent to share information.