Flaws mar national guidance on information sharing

Is the national guidance on information sharing, endorsed by 30 leading bodies in the sector, up to the job? Bob Miller, a lawyer who works as a consultant for local authorities, argues that it has some serious flaws

A mother tells a school teacher that another mother isn’t coping. The teacher has her own concerns. Her headteacher advises her to meet the mother and follow the guidance. The common assessment framework guidance refers her to Information Sharing: guidance for practitioners and managers which is, it claims, especially useful in supporting preventive work.

Practitioners are often unsure whether their basis for sharing information is legitimate. The guidance says if you work for a statutory service the sharing must be within its powers, which will be the case if you are sharing as a normal part of the job. But what if the sharing is not a normal part of your job? The guidance says nothing about that.

Yet guidance stresses that practitioners must be alert to problems outside their expertise. This lesson has been hard won. It is almost unbelievable that the national guidance on information sharing ignores it.

The teacher also has to think about confidentiality. The guidance warns it is a complex subject, but it doesn’t have to be.

People can expect the support they receive, and information relating to it, will be kept private. Moreover, they can’t be given support without their agreement. So it is safer and easier to treat all information shared for the purposes of providing additional support as confidential.

Rather than make these simple points the guidance elaborates on confidentiality as if it had swallowed a textbook. The teacher decides the things she wants to discuss must be confidential. She can share this information with consent, but whose consent?

The duty is owed to the mother and child because the information is about them. So the mother should be asked to consent for herself and on her child’s behalf. However the guidance says the duty is owed to the person who provided the information.

This means the other mother should be asked for consent to share the information she provided. But it isn’t about her or her child, so how can she consent? (She is owed a duty, but only to the fact that she provided the information.)

The teacher ignores the guidance and meets the mother. She tells her she would like to share information with practitioners who can help her. What type of consent does the teacher need?

Although sharing is intrinsic to the support, the teacher shouldn’t assume the mother understands what it involves. She should seek the mother’s express consent, explaining what she wants to share, who with, and the likely consequences. However the guidance says consent can be implied when sharing is intrinsic to the activity or service, especially if that has been explained or agreed at the outset.

Explained or agreed is nonsense – if something is explained and agreed then consent is express, not implied.

The only example of implied consent given in the guidance is of a GP referring a patient to a specialist. Yet the Royal College of GPs advises GPs, when sharing information about children, to seek consent ensuring the parent understands the records, who they will be shared with, and what the third parties may do with the information.

The teacher seeks express consent, the mother gives it, and things work out well. But was the guidance especially useful? Ask the teacher.

For further information bob.miller@zen.co.uk

This article is published in the 13 May 2010 edition of Community Care under the headline “To share or not to share?”