5.2.1 Access to Case Records |
SCOPE OF THIS CHAPTER
This chapter was included in the second version of the Bradford Children's Social Care Manual of Procedures. It came into force in January 2008.
Contents
- Summary Procedure
- Legislation and Definitions
- Potential Litigation against the Local Authority
- Access by Data Subject or Person with Parental Responsibility
- Access by Defendants in Criminal Proceedings
- Access by Police/Crown Prosecution Service
- Access by CAFCASS
- Access by Other Local Authority Social Service Departments
- Access by Other Professionals, such as Health and Education
- Access Within Bradford Social Services
Appendix 1 - Draft Letter to Other Professional or Organisation
1. Summary Procedure
| 1.1 | Requests for information from Social Services paper files, electronically held or other records must be made in writing and can be made to:
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| 1.2 | If Legal Services or the Authority’s Data Protection Officer receives a request they will forward this to Children’s Services Children’s Advice Team or the caseholder as appropriate. |
| 1.3 | Where the case is closed Children’s Services Children’s Advice Team will deal with requests from defendants in criminal proceedings, Police/Crown Prosecution Service, CAFCASS, other Local Authority Social Service Departments, other professionals such as Health and Education and from within Bradford Social Care Services |
| 1.4 | Where the case is closed and the request is from the data subject or person with parental responsibility Children’s Services Children’s Advice Team will retrieve the casefile and pass the case to the area based teams on a rota basis as determined by Children’s Management Team. |
| 1.5 | Where the case is open the allocated worker or team will deal with requests. |
| 1.6 | A request will not be accepted until the referrer has provided sufficient information to enable identification of the relevant data. The information required guidance on making requests for information and a pro forma are contained in leaflet C252. |
| 1.7 | The Authority’s Data Protection Officer must always be informed by the Children’s Advice Team when a request for information by a data subject is accepted, and by the keyworker or Lead Social Worker when the information has been provided. |
| 1.8 | Where there appears to be the potential for litigation against the Authority the Legal Services must be contacted immediately. |
| 1.9 | The attached policy details how to deal with each type of request and must be consulted before undertaking work on a request. |
2. Legislation and Definitions
| 2.1 | The rules on access to files and other data where the data subject can be identified are now found in the Data Protection Act 1998 and consequent regulations (S.I. 2000/415 and S.I. 2000/419). This legislation applies to all files and other data irrespective of the Unit or part of the service which generated them. This document summarises Department of Health guidance 'Data Protection Act 1998: Guidance to Social Services' or obtained free from Department of Health Publications, P.O. Box 777, London SE1 6XH |
| 2.2 | If third parties request access to adoption records or Special Educational Needs Statements legal advice must be sought given the sensitivity, recognised in legislation, of the documents. |
| 2.3 | Court documents are exempt, and must normally be the subject of a separate application to the Court by the person requesting access. However, he/she may automatically be entitled to copies if he/she was a Party to those proceedings. An adult may therefore be entitled to Court papers concerning themselves as a child. |
| 2.4 | The Data Protection Act 1998 came into force on 1st March 2000. It repeals the Data Protection Act 1984 as well as the Access to Personal Files Act 1987 and most of the Access to Health Records Act 1990. The effect is to create a single regime of access for social work records. |
| 2.5 | "Data" means both manually created records, such as files and microfiche, and computer-generated and stored information. It includes both statements of fact and opinion, and also information about the planning process in the case. It includes data on the file provided by third parties, subject to the restrictions referred to within this policy. |
| 2.6 | Legal advice should always be sought where there is any uncertainty about an individual’s right of access to information held on Social Services (Or Children’s Social Care) records, or where access is to be denied. Information to be disclosed must always be agreed by a Senior Care Manager prior to disclosure, and the manager will determine at that point whether (further) legal advice is required. |
3. Potential Litigation against the Local Authority
| 3.1 | Enquiries or correspondence will sometimes be received, which either explicitly states, or may suggest the possibility, that the relevant person may wish to litigate against the Local Authority. For example he/she may be suggesting that he/she has been abused whilst in the care of the Local Authority, or he/she may be suggesting that the Local Authority has in the past failed to protect them from abuse or has been negligent in some other way. If there is any suggestion of such litigation from the nature of the enquiry or correspondence, the Social Worker should acknowledge the request and forward the correspondence to Legal Services, who will make a decision about how the correspondence should be handled. If such circumstances become clear during the process of disclosure then Legal Services should be contacted immediately. A failure to follow this procedure may affect the insurance cover of the Local Authority, laying the Local Authority open to significant financial loss. |
4. Access by Data Subject or Person with Parental Responsibility
Any living person has a right of access to personal information held by a social services authority for the purposes of its social services functions, whether held in electronic or manual form. 'Information' includes factual information, expressions of opinion and the intentions of social services in relation to that individual.
4.1 |
Information provided by other professionals or organizations |
| 4.1.1 | Social Services data very often contains information provided by other organizations or professionals such as education and health professionals. Unless such information is included in the exemptions at Section 4.7 below it is accessible data. However you should attempt to gain the consent of the author or organization unless it is impractical to do so; for example the author may be dead. Appendix 1 provides a draft letter for such purposes |
4.2 |
Information about a child where the applicant has parental responsibility |
| 4.2.1 | See section 4.4, paragraph 4.7.4 and section 7.4. |
| 4.2.2 | Where a person who has parental responsibility but is not the main carer of the child applies for access to information about the child a detailed assessment of the purposes of the application is required. Legal advice should be sought and the person with primary care of the child should be informed. Social Care Services will need to be satisfied that it is in the child's interests to grant the request and that the request is made not simply for the benefit of the adult. |
4.3 |
Information about other people |
| 4.3.1 | One person does not have the right to know what is recorded about someone else. So information kept on one member of a family on a file does not allow that person to see information about another member of the family on the same file. Exceptions are:
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| 4.3.2 | If it is impossible to disclose personal information without disclosing information about someone else, as much information as possible should be provided without revealing that other person's identity. |
| 4.3.3 | If information does disclose the identity of another person who has not given consent, it can be disclosed if 'reasonable in all the circumstances'. Regard should be had to:
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| 4.3.4 | This provision (4.3.3) does not give a right to withhold information about Social Services employees, or other service-providers (but see paragraph 4.7.3 if there is a risk of serious harm). |
4.4 |
Can a child apply for access to personal information? |
| 4.4.1 | A young person under 18 has a right of access to personal information if social services consider that s/he has sufficient understanding to make the request. This is the “Gillick Test”. If not, a person with 'Parental Responsibility' can make a request on behalf of the child. Note that, for example, an unmarried father may not have 'parental responsibility' but any person who has a Residence Order in relation to the child in question does have parental responsibility. Social Care Services will need to be satisfied that it is in the child's interests to grant the request and that the request is made not simply for the benefit of the adult. |
| 4.4.2 | See paragraph 4.2.2 for considerations regarding non-custodial parents. |
| 4.4.3 | If social services are of the view that to give access is likely to cause 'serious harm' to the physical or mental health/condition of the data subject or any other person, then the request may be refused (see paragraph 4.7.3 Exemptions). |
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| 4.5.1 | The same rules apply for a person with a mental incapacity or disorder. Does that person understand the request made and will access cause 'serious harm' (see paragraph 4.7.3) |
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| 4.6.1 | An individual can ask another person ('agent') to make a request for access to personal information. The agent should be able to prove his or her identity and be able to show proof of his/her authority. Normally that authority should be given in writing. |
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There are various exemptions to the requirement to give access to personal information. |
| 4.7.1 | Where information relates to another person See Section 4.3. |
| 4.7.2 | Preventing or detecting crime An individual need not be provided with information that has been received or disclosed for the purposes of preventing or detecting crime, if to do so would be likely to prejudice the prevention or detection of crime, or the arrest or prosecution of offenders. Legal advice should be sought if in doubt as to what should be disclosed. |
| 4.7.3 | Disclosure will cause 'serious harm’ This particular exemption applies if social services consider that disclosure of personal information that is held for social work purposes would be likely to cause serious harm to the mental or physical health of the individual or any other person. What is 'serious harm' will depend on the circumstances. It may be advisable, for example, for disclosure to be deferred or for counselling to be provided before disclosure. |
| 4.7.4 | Children and those with a mental incapacity Where a person, such as a parent, is legally able to request data on another person, that may be refused if:-
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| 4.7.5 | Adoption records, etc Adoption records are exempt from the Data Protection Act, and are dealt with separately under the Adoption Act 1976. The exemption only applies to data compiled for adoption purposes, such as for Adoption Panel and for placement, not other social work data that may be transferred to the Adoption Unit for administrative convenience. Records which relate to matters covered by the Human Fertilisation and Embryology Act are also exempt and legal advice should be sought on these. |
| 4.7.6 | Statements of Special Educational Need under Regulation 19 of the Education (Special Educational Needs) Regulations 1994, are exempt. |
| 4.7.7 | Personal health information. Information must not be disclosed about an individual's physical or mental health without first consulting an 'appropriate health professional'. This will normally be the person responsible for the individual's medical care such as a G.P., psychiatrist, nurse, etc. |
| 4.7.8 | Legal advice: All legal advice is confidential, and should not be disclosed. |
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| 4.8.1 | A request for access must be made in writing. Bradford Council does not normally require payment of a fee for requests involving social services records. Sufficient details must be given to identify and to find the information. The person may require assistance in making the written application, e.g. due to his/her age or if English is not his/her first language. |
| 4.8.2 | Social Care Services have 40 days to respond to the request but that period does not begin until sufficient information has been given to find the information sought. Within those 40 days, any consent from another person will have to be obtained. If that cannot be achieved in time then as much information as possible should be given without identifying that other person. There is discretion to give information without that other person's consent if it is not or cannot be given. (See 4.3.3 above.) Legal advice should always be sought where there is any doubt about disclosure of information. |
| 4.8.3 | The information must be provided in an intelligible form. A copy must be provided unless it is not possible to do so, would involve disproportionate effort or the applicant agrees otherwise. Where an applicant asks, for example, for a copy of all entries on a large social work file this may well amount to disproportionate effort and it is suggested that discussion should take place with the applicant on the extent of information that should be copied. Information to be disclosed should always be agreed by a Senior Care Manager, who will determine if further legal advice is required. |
| 4.8.4 | If the applicant considers that the information is inaccurate then s/he can ask for that information to be corrected. 'Inaccuracy' relates to incorrect or misleading facts but only to any statement of opinion that is based on an inaccuracy. It is good practice to deal with a request for amendment promptly and any disagreement should be noted in the file. The applicant can approach the Information Commissioner or the courts if the correction is not made. |
| 4.8.5 | Notification of a decision to refuse access should be given in writing as soon as practicable. The reasons should be explained to the applicant unless good reason not to. So an explanation may be given in general terms if appropriate. Legal advice must always be sought prior to refusal of disclosure. |
5. Access by Defendants in Criminal Proceedings
| 5.1 | Occasionally, a request may be made in person by a defendant in a criminal trial. More usually, a request will be received by the Council from Solicitors acting for the defendant, either directly to Social Services, or to Legal Services. |
| 5.2 | In such cases, the defendant is entitled to information about him/herself, and the policy at 3 above should be followed. |
| 5.3 | All other requests for information, particularly about third parties such as the child or other alleged victims, must be referred to Legal Services. Correspondence from the Solicitors must be acknowledged by Social Care Services, and the acknowledgement must indicate that the request has been forwarded to Legal Services and that they should subsequently correspond directly with Legal Services. |
| 5.4 | Contact must be made promptly with Legal Services, preferably by telephone to duty and fax, as the degree of urgency may not be apparent on the face of the letter, and there may be a criminal trial which is very imminent. Where necessary Legal Services will indicate that Social Care Services staff must secure all relevant files, including taking steps to retrieve Social Care Services files from other locations in the District. Arrangements should then be made for the files to be taken promptly to Legal Services, who will then act on behalf of Social Care Services in the correspondence and any subsequent proceedings in Court. |
| 5.5 | Often Legal Services will need to instruct Counsel, frequently as a matter of urgency, both to scrutinise files and to represent the Council at any public interest immunity applications in the Court. A Service Manager can authorise the instructing of Counsel in these applications. It will usually be obligatory to instruct Counsel, since Solicitors do not have a right of audience in open Court within criminal proceedings in the Crown Court, where the majority of these cases take place. |
| 5.6 | Normally, if a Witness Summons is subsequently required, Legal Services will negotiate with the Defendant that the Witness Summons should be issued in the name of the Director of Social Care Services, but normally no Officer from Social Services will need to attend at Court, although Legal Services will require a named Officer as a point of contact if urgent instructions are required by telephone from the Court. In exceptional cases, Legal Services may require an Officer of Social Services to attend Court. |
6. Access by Police/Crown Prosecution Service
| 6.1 | Under the provisions of Section 29 of the Data Protection Act 1998, information can be shared with the Police or Crown Prosecution Service if the enquiry is for the purposes of either the prevention, or detection of a crime, or for the apprehension or prosecution of offenders. This is also recognised in “Working Together to Safeguard Children”, where at paragraph 7.29 it says “professionals can only work together to safeguard children if there is an exchange of relevant information between them. This has been recognised in principle by the Courts. Any disclosure of personal information to others must always, however, have regard to both common and statute law”. |
| 6.2 | In such situations, ideally the consent of the subject of the data should be sought first, but this may not be practicable, and in addition it may not be appropriate (see paragraph 7.30 of "Working Together, etc."). |
| 6.3 | If a request is made for access during a continuing Police investigation, the above-mentioned principles should be applied. The Police Officer should be asked to identify in broad terms the nature of the crime that is being investigated, and the types of information that are sought. In some cases, it may be necessary to give access to the whole file; in others, it may be sufficient to provide access only to the relevant records of particular dates or incidents. Advice from a Manager should be sought, as appropriate. |
| 6.4 | On a more contentious basis, access may be sought at a later stage when the criminal investigation has been completed, and when the case is due to come to trial. The enquiries may relate to seeking information, which might diminish the value of the Prosecution’s evidence, or assist the defence case. Such requests must not be acceded to without taking legal advice. |
| 6.5 | In such situations, practitioners need to be aware that if documents are in Police possession, and this will include Case Conference minutes if a Police Officer attends, those remain the property of the Police, and they are under independent obligations to disclose those records to the Crown Prosecution Service. In the normal course of events, the Local Authority will be invited to express its point of view about subsequent disclosure by the CPS to the defence or the Court. Any objections of the Local Authority to such disclosure would necessitate Local Authority attendance at Court. |
| 6.6 | If there are any documents on the Social Services file which are from legal proceedings, such as Care proceedings, the Police cannot have access to those documents without leave of the Court. That will usually be the Court which had the conduct of the relevant proceedings relating to those documents. |
7. Access by CAFCASS
| 7.1 | If a CAFCASS Officer has been appointed by the Court in respect of “specified proceedings”, he/she has the right, under Section 42 of the Children Act 1989, to Social Care Services records. This includes the right to take copies of any such records. |
| 7.2 | However, although it is not explicit in Section 42, this does not extend to access to confidential legal advice to Social Services, which is protected by client confidentiality. If necessary, such advice should be removed before the file is provided to CAFCASS. |
| 7.3 | “Specified proceedings” are public law proceedings, such as applications for Care Orders, Supervision Orders, Discharge of such Orders, Secure Accommodation Orders and Emergency Protection Orders; together with associated miscellaneous applications and appeals. |
| 7.4 | For the purpose of other, essentially private law, proceedings, CAFCASS Officers require the consent of a parent, or a Court Order, to gain access to Social Services records. To simplify the procedure, CAFCASS, upon receipt of a case from the Court, will contact the Child Protection Unit and ascertain
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8. Access by other Local Authority Social Service Departments
| 8.1 | If the Social Workers in another Local Authority are conducting a Section 47 Investigation, Social Workers should co-operate in the sharing of relevant information, and access should be given to relevant documents if required. However, if this includes Court documents, such as from Care proceedings, copies cannot be provided without a Court Order being obtained. However, that does not prevent, in the context of a Child Protection Investigation, the sharing with the other Social Workers of a summary of the relevant information. |
| 8.2 | If the Social Workers in another Local Authority are conducting a Section 17 assessment, for example if they are considering providing services to the child and this is not within the context of a child protection investigation, information cannot be shared without the relevant consent being given. In such a situation, the consent should also be sought both for access to the documents and the right to take copies of such documents. |
9. Access by Other Professionals, such as Health and Education
| 9.1 | Please refer to the Information Sharing Protocol agreed between the respective local agencies. |
10. Access within Bradford Social Services
| 10.1 | Although there is no requirement for our Department to gain consent for staff within our Department to have access to case records and other data we have a responsibility to ensure that only enough information is shared to allow staff to fulfil their responsibilities. Therefore a caseholder would need to have access to the complete file whereas a clerk disbursing a payment would only need information relevant to that payment. This could be called a system of proportionality, where the information shared is in proportion to the task to be completed. |
11. Appendix 1 - Draft Letter to other Professional or Organisations
Dear Re: Access to Personal Files (Data Protection Act 1998) A request has been made by name, for access to personal information held about them by Social Services. I am formally asking if the information you provided to us can be released to name. Should you wish to withhold consent you must do so for a reason stated in the Data Protection Act 1998. The most common reason for refusal of consent is that disclosure of the information held in Social Services records would cause serious harm to the mental or physical health of the individual or any other person. Please be aware that as we hold a variety of files within the Department you may receive further requests from other file holders. With requests of this nature we are working to tight timescales and as such I need to advise you that unless we hear from you by date I shall assume the information is appropriate for release. If you wish to discuss this request please feel free to contact me on the above telephone number. I would like to take this opportunity to thank you for your continued support. Yours sincerely |
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