Section 3: Code of Practice for Access to Confidential Information, including Health Information
1. The rationale underlying the joint inspection of services to protect children and young people is to audit child protection and improve children's services rather than to review individual records, such as those held by health or the police. The principles of the joint inspection of child protection services have been agreed by the Heads of Inspectorates, following extensive consultation. However, access to individual records is necessary to ensure effective inspection. These records are accessed to verify and check specific areas relating to the relevant Quality Indicators used by the inspection team. These include:
QI.1: How effective is the help children and young people get when they need it?
1.1 Children and young people are listened to, understood and respected.
1.2 Children and young people benefit from strategies to minimise harm.
1.3 Children and young people are helped by the actions taken in immediate response to concerns.
1.4 Children and young people's needs are met.
QI.3: How good is the delivery of key processes?
3.1 Involving children, young people and their families in key processes.
3.2 Information sharing and recording.
3.3 Recognising and assessing risks and needs.
3.4 Effectiveness of planning to meet needs.
2. All members of the Inspection team have received appropriate training and are bound by professional, legal and contractual obligations to preserve confidentiality. Section 3 of the Act, has introduced a duty of confidentiality that places a requirement on inspectors not to disclose personal confidential information. There are some exceptions provided for to take into account the important, existing statutory duties of inspectors, for example to report an offence. Nevertheless, this provision within Section 3 reinforces the requirement to handle personal information confidentially by the Joint Inspection Team.
3. While seeking the consent of individuals to access to their records is best practice, for the purpose of the Joint Inspection of Child Protection Services, the inspection team will proceed on the basis of implied consent. Patient information leaflets covering access to health information by inspectors for the purpose of quality assurance or improvement should advise patients that their consent has been implied for the purpose of joint inspection of services to protect children unless the patient specifically indicates otherwise to the holder of the record or the relevant Health Board. The Services for Children Unit will liaise with the Scottish Executive Health Department to ensure that an appropriate template for a leaflet is distributed to all NHS Boards, if this is considered necessary, following a review of the first stage of the Joint Inspection of Child Protection Services.
4. There may be circumstances where implied consent is refused or withdrawn. A case by case approach will be adopted, using the guiding principles in the Children (Scotland) Act 1995 and the United Nations Convention on the Rights of the Child concerning the 'best interests of the child.' Section 1 (6) of the 2006 Act requires inspectors to have regard to this Code of Practice. If a child or parent does not want the child's health record to be accessed , the inspection team will have regard to these views. If the inspection team considers it necessary to examine the record the situation will be discussed with relevant professionals, including, where appropriate, the NHS Board's Caldicott Guardian. The Caldicott Guardian will be asked to consider whether access to the child's health records without consent is appropriate in all the circumstances of the case.
5. The starting point for an inspection is an announcement letter with an enclosure briefly describing the inspection process to the Chief Executives of the local authority and the NHS Board, the Chief Constable and the Authority Reporter. This letter will also enclose the Pre-inspection Return ( PIR) and the guidelines for completing the PIR. The inspection team recently visited senior staff in all local authorities to advise on the completion of the Pre-inspection Return.
6. Among the documents in the PIR, information will be sought to enable inspectors to select children or young people who would form a sample for review. The sample will include children on the Child Protection Register ( CPR), children recently removed from the CPR, as well as recent referrals to the key agencies, i.e. social work services, police, the reporter and children who have been identified as a cause of concern by health visitors in the area. Inspectors will also examine cases where the children or young people have received support from services over a longer period (see Appendix 2). It is not the intention of the case sampling to be retrospective but there are 3 categories of cases where the time frame may exceed a calendar year: long-term support for children recovering from abuse, complaints and allegations against staff and critical case reviews undertaken by agencies..
7. In order to preserve the anonymity of children, agencies will be asked to use a unique identifying number and the first half of the child's post code to enable inspectors to select a sample which will be geographically representative of the area. The size of sample varies according to the population of each local authority area.
8. The master index which links anonymised numbers to names will be kept by the designated person within the local authority or agencies being inspected. The managing inspector will have the primary responsibility of holding a copy of that list for the inspection team, which will be destroyed as soon as the fieldwork is completed.
9. As soon as a local authority is aware of an impending inspection the managing inspector will contact the "key people" in each agency to organise a briefing meeting. This meeting will take place several weeks before the inspection fieldwork starts.
10. During the course of the first fieldwork phase inspectors will read records as listed below in paragraph 11 concerning a number of children in the inspection case sample. All the records supplied concerning a particular child will be allocated to an inspector by the managing inspector. An individual inspector gains a holistic view of how the child has been supported by all the services and agencies involved in the child's life. The multi-disciplinary nature of the team means that professional expertise is available in any area where further clarity may be required.
11. The records supplied for each child and young person contained within the sample should include:
- the child and family social work record and any other records held by social work concerning the child e.g. family centre, residential unit.
- any records held by the police concerning the child;
- if the child is of school age, the PPR and any other records concerning the child held by the school;
- any records held by SCRA concerning the child; and
- the core health records, namely the health visitor or school nurse records.
12. Only core records pertaining to the child or young person will initially be required. For health, core records are the Health Visitor records for pre-school children and School Nurse records for school-aged children. The joint inspection team will not seek to recover adult's personal records. However, within child protection services, the parental or caring context will have an impact on whether a child is safe and protected. The joint inspection team will consider the parental or caring context within their evaluation. Relevant information for this purpose that is within the child's record will be a factor in the Joint Inspection Team's considerations
13. The joint inspection process may identify an issue or particular case which will lead to a requirement for further information. Under these circumstances, the inspector may wish to discuss the case further with a health professional. In a minority of cases the inspector may wish to access other health records such as those held by GPs, Community Paediatricians or Mental Health practitioners. The experience of the inspection team in the Perth and Kinross audit trial suggests that the opportunity to discuss individual cases with health professionals greatly assisted evaluations and proved more illuminating than the access to further health records. However, it is important to stress that this experience could not be replicated in the pilot inspections so any indication of how frequently further records may be required is difficult to gauge. This will require to be reviewed in the early part of the inspection programme.
14. Core records will be delivered to a room provided within the local authority where the inspectors are based, and kept in a locked cabinet. If it is practical some core records may be read in the premises of the relevant agency. They will be kept for the minimum amount of time required to review the record and then returned to the record holder. The Managing Inspector's mobile phone number will be made available to the health 'key person' in the event of the need for immediate access to the records. No copies of records will be made by the inspection team. Inspectors will sign for core records, indicating date of receipt and return. Inspectors will also sign and date an individual health record whenever they access them.
15. Non-core records will not leave health premises. They will be reviewed by the inspectors in a quiet confidential area within relevant health premises.
16. While the majority of records are likely to be read by one inspector, some cases could be read by two inspectors. Where more than one inspector reads the records, evaluations will be jointly agreed and recorded by one inspector .
17. Children or young people in the sample may be asked to meet with inspectors to discuss aspects of the service they received. Any approach to meet with children is always made through a key worker and inspectors will ask for express consent for both interviews and to attend any meetings where the child may be present.
18. Inspectors will record relevant evidence and information relating to the above, but no individual name will be recorded or identified in any material held by the Inspection team.
19. Service users and third parties will not be identified or recognisable in the reports produced. All the notes taken by inspectors and evidence collected will use identifying numbers, not names.
20. If serious concerns arise during the Inspection about the safety or welfare of a particular child or children, this will be raised with an appropriate senior officer in the agency(ies) concerned. A protocol covering such situations has been developed (Appendix 3) and will be shared with the relevant senior staff in the agencies being inspected at an early stage by the managing inspector.
21. Inspection material will be destroyed in line with HMIE's records management policy. This happens immediately after the inspection. One summarised and anonymised record of evidence is kept for one year after the publication of the report. That evidence record is then destroyed.
This Code of Practice will be reviewed after the first four Inspections and following further discussion with key stakeholders. It will be modified accordingly, in the light of any new issues identified.