GIRFEC Developing Policy and Practice

1. GIRFEC Developing Policy and Practice Information Sharing FAQ’s Elgin – 17 May 2012 Margaret A Forrest Legal Services Manager (Litigation & Licensing) The Moray Council

2. FAQ No. 1 As “Named Person” within my primary school I have been advised that I need to seek the written consent of a Primary 3 pupil, before I can refer him to another agency. Is this correct?

3. NO. • 2011 Memorandum Of Understanding (MOU) - recognises that consent does not need to be relied upon exclusively for sharing info. It is one of several conditions that can be met for justifying disclosure of info. • MOU to replace the Pan Grampian Information Sharing Protocol. • To consider both at moment.

4. Legally, and in terms of The Role of the Named Person in Universal Services document, explicit consent should be sought. • explicit consent = active consent, i.e. in writing but where not possible can be verbal. • Whatever form consent is, it must be informed.

5. LIAP Procedures: judge whether child is capable of giving informed consent and if not, approach legal representative. • Memorandum Of Understanding – presumption pupil of 12 or over enjoys capacity to give or withhold consent unless incapacity has been established. • Child< 12 years of age. • Parent = legal representative • Audit trail – keep records

6. Responsibility to… safeguard & promote child’s health, development & welfare Provide direction & guidance Maintain personal relations & direct contact on regular basis if not living with the child To Act as the child’s legal representative Right to… have the child living with him or otherwise regulate residence Control, direct & guide child’s upbringing in a manner approp to stage of development of child if child is not living with the him, to maintain personal relations & direct contact on regular basis To Act as the child’s legal representative Parental Responsibilities & Rights – sections 1 and 2, Children (Scotland) Act 1995

7. FAQ No. 2 As part of the school team, the school nurse can share information with teaching staff without the permission of the child or family. Is this statement true?

8. DEPENDS. • Medical information is sensitive personal information. • Child entitled to the same degree of confidentiality as an adult. • Nurse to work within professional guidelines e.g. Nursing and Midwifery Code May 2008. • Nurse to work within parameters set by employer.

9. Explicit consent to share would normally be needed, BUT … • Can share info if necessary to protect the child. • Audit trail – keep records.

10. FAQ No. 3 I want to organise a LIAP meeting for a 13 year old girl. Who should I discuss this with, and whose permission should I seek?

11. Girl? Parent(s)? Both? • LIAP Procedures: judge whether child is capable of giving informed consent and if not, approach legal representative. • Girl > 12 years of age. • Memorandum Of Understanding – presumption girl enjoys capacity to give or withhold consent unless incapacity has been established. • Legal rep = parent. • Informed, explicit consent. • Audit trail – keep records.

12. FAQ No. 4 A 15 year old girl tells me in confidence that she has had sex with her 16 year old boyfriend. Who should I report this to?

13. Police? Social work? Parent? No-one? • Criminal offence – s28 Sexual Offences (Scotland) Act 2009 • No legal duty to pass on information to police/social work/parent but to work within professional guidelines: GTC Code of Professionalism and Conduct. • To work within parameters set by employer : NESCPC guidance on working with young people who are sexually active. • Ascertain what responsibilities are, how much discretion is allowed and support available re decision making. • Audit trail – keep records.

14. FAQ No. 5 I have discussed organising some social work support for a family I am concerned about with both parents. They refuse, and angrily tell me the difficulties do not occur at home. Can I make a referral without consent?

15. MAYBE. • If a reasonable concern child may be at risk of harm. • Act within professional guidelines. • Act within parameters set by employer – NESCPC Guidelines, Pan Grampian ISP. • Audit trail – keep record of concerns and decision making.

16. FAQ No. 6 I am working with a young child whose parents are separated. If I want permission to refer to another service, whose permission do I need?

17. Mother? Or father? Or both? • Any person who has parental rights and responsibilities can act alone unless a court order says otherwise. • Person must consult the child and any other person having parental rights and responsibilities for major matters - and if one disagrees - then they must go to court to have that decided- s 11 orders.

18. Mother Always has them, whether or not married to child’s father, unless deprived of them by a court order. Father Only if: married to child’s mother at time of conception or subsequently; on or after 04/05/2006 he is registered in Scotland as the father on the child’s birth certificate; given them by a Scottish court order - section 11, or a court order from another part of the UK or EC; enters into an agreement with the mother in Scotland- section 4. Parental responsibilities & rights – Who has them? - section 3

19. FAQ No. 7 A 13 year old boy advises that following a recent LIAP meeting he and his parents have consulted with a solicitor as he does not agree with what was written about him. The solicitor says he will attend the next meeting. Is he bluffing or are children able to appoint their own solicitors?

20. Not bluffing.Children can appoint their own solicitors. • Solicitor decides if s/he is capable of getting instructions from the boy i.e. that he has a general understanding of what it means to appoint a solicitor. • Presumed to be of sufficient age and maturity to have that understanding if 12 or over. • Under 12’s can appoint one too – solicitor decides if they have the understanding.

21. FAQ No. 8 I have been advised that now that social work and education have amalgamated, we no longer need to worry about consent under Data Protection Principles, as we are now 1 department, and the family’s consent is only needed if I want to make a referral to health or a voluntary agency. Is this advice accurate?

22. NO. • For purposes of DPA ‘98, LA is one organisation but still need to comply with data protection principles. • Information given to an officer is generally for a specific purpose e.g. to provide education. • If you need to pass info on to another officer for a different purpose then this can only be because you have consent to do so or you have determined that it is necessary for that other officer to have that information to discharge their duties. • Still need to explain to person how info is being used, even if you don’t need consent. Ideally tell them all the potential purposes at time you are gathering info and then there is no problem.

23. FAQ No. 9 I am not sure whether the concerns I have about a family indicate that the child is at risk, and am worried that I cause further problems for the child by discussing my concerns with the family. What should I do?

24. Refer to social work? Refer to Reporter to Children’s Hearing? Do nothing? • No legal duty to pass on information but to work within parameters set by employer e.g. local child protection procedures, ISP’s. • To act within professional guidelines. • Ascertain what responsibilities are, how much discretion is allowed and support available re decision making. • Audit trail – keep record of concerns and decision making.

25. FAQ No. 10 Does “consent” always have to be signed?

26. NO. • Consent must be “explicit”. • “Explicit” not defined in legislation but it is taken to mean active consent i.e. in writing or where this is not possible, verbal. • But consent should be in writing if this is what has been agreed e.g. in a protocol/policy/procedure.

27. Any questions