Sunday, August 06, 2006

#12 Consent to information-sharing

The key issue with all of the existing and proposed database systems is that of gaining the consent of those to whom the information refers. As we have shown over the last couple of weeks, information may be shared without any consent whatsoever, or refusal of consent may be overridden by purported reliance on general, discretionary statutory provisions.

To give some examples of the vague powers being invoked to share data without consent:
  • s2 Local Government Act 2000 gives a local authority (LA) a discretionary power to do anything that promotes the economic, social and environmental well-being of their area
  • s37 Crime and Disorder Act 1998 requires that LAs should have the aim of preventing offending by children
  • s175 Education Act 2002 requires schools and LEAs to carry out their functions ‘with a view’ to safeguarding children’s welfare

More specific information-sharing powers are provided by:

As the potential to share information has increased, so, too, has the guidance to agencies on whether, when and how consent should be sought before sharing.

We’ve already mentioned the Youth Justice Board’s
‘ID50’ guidance; elsewhere, other YJB guidance on sharing information about those thought to be potential young offenders advises that: “obtaining consent remains a matter of good practice, as opposed to a requirement of law”.

The Department for Constitutional Affairs'
data-sharing toolkit implies that agencies can rely upon a range of implied powers to share information, and suggests that: “If there is no existing legal power for the proposed data collection and sharing, then consideration should be given to establishing a statutory basis by enacting new legislation”.

The effect of s12 Children Act 2004 is to obviate any need for consent in order to populate the proposed Children’s Index, and the entire ethos of the ‘Every Child Matters’ agenda is one of widespread information-sharing.

After considerable protest from various agencies, the DfES has now said, in its
most recent guidance, that practitioners should normally seek consent before sharing any confidential information that they hold about a child and his/her family – but this guidance is non-statutory and ultimately it will be for each local area to develop its own information-sharing protocol.

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