Children and Young People Information Sharing Scotland Bill

First meeting transcript

The Convener

Agenda item 4 is a briefing from Scottish Government officials on the Children and Young People (Information Sharing) (Scotland) Bill. I welcome to the meeting Ellen Birt, who is the bill team leader, and John Paterson, who is a divisional solicitor. This is our first meeting on the bill, so I invite the officials to brief the committee on its detail, its financial implications and its delegated powers.

Ellen Birt (Scottish Government)

I am happy to do that. My intention is to provide a bit of background to the bill and an explanation of what its provisions will do. I will also address the financial memorandum and delegated powers within the bill, which the convener has just mentioned.

The Children and Young People (Scotland) Act 2014 provides the statutory underpinning for the getting it right for every child approach, which is our national approach to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time and from the right people. The named person service and the child’s plan are central to the approach; they put the wellbeing of every child and young person at the centre and ensure that services work together to support children, young people and their families.

The policy was developed in response to real-life experiences and expert advice that a timely and early offer of advice or help can prevent troubles from becoming crises. It was developed in response to parents asking for a clear point of contact for children, young people and their parents, should they be seeking support, information or advice.

The Scottish Government is committed to ensuring that all children and young people have access to the same standard of support, irrespective of where they live, and it remains committed to provision of a universal named person service for all children and young people up to the age of 18. It is against that backdrop that the 2014 bill was passed.

As members know, the 2014 act was, in the case of the Christian Institute and Others v the Lord Advocate, challenged as being outside the Scottish Parliament’s legislative competence. The grounds for challenge were that part 4 of the act, which relates to the named person service, related to reserved matters and that it was incompatible with the European convention on human rights and European Union law.

In July 2016, the Supreme Court gave its decision. It dismissed the challenges on reserved matters and EU law. On the human rights challenge, the Supreme Court found that the provision of a named person service was

“unquestionably legitimate and benign”.

However, it went on to find that the information-sharing provisions in part 4 were not in accordance with the law. In brief, that was because of the very serious difficulties in accessing the relevant legal rules and a lack of safeguards that would enable the proportionality of an interference with article 8 rights to be examined.

What has happened since the Supreme Court case? The Scottish Government held an intense period of extensive engagement between September and December 2016. It included more than 50 meetings with about 250 organisations and groups. We heard from about 700 young people, parents and carers, practitioners, professionals and leaders from education, health, local authorities, the police, faith communities, unions and charities. Through that engagement, we also listened to those who had raised concerns about the named person policy, including Christian Action Research and Education for Scotland, Clan Childlaw, Together and the Scottish Parent Teacher Council, among others.

The bill seeks to address the points that were raised by the Supreme Court and to ensure that decisions around sharing of information are taken in partnership with children and young people and their parents. That is something that children and young people, parents and practitioners expressed was a key issue for them, and it is core to the getting it right for every child approach. The bill will make changes to parts 4 and 5 of the 2014 act, which relate to the named person service and the child’s plan. The changes that the bill will make relate to information sharing only. It seeks to clarify the provisions around information sharing and to ensure that proper safeguards are in place.

In relation to part 4 of the act, on the named person service, the bill will substitute a new section 26 and insert a new section 26A. Those sections relate to the provision of information by or to a named person service provider. The previous duty to share information under the 2014 act will be removed and replaced with a new duty to consider sharing information. First, the named person or other information holder who is seeking to share information with the named person service provider must consider whether providing the information

“could, in its opinion, promote, support or safeguard the wellbeing of the child”.

Secondly, the provider will have to consider whether the relevant information could be shared in accordance with the law. That includes data protection law, human rights law and the law of confidentiality.

Thirdly, the bill provides a power to share information. That means that there will no longer be a duty to share information, but named persons and others who seek to share information with the named person will be able to continue to exercise their professional discretion.

Section 1 of the bill will amend section 23 of the 2014 act, on communication in relation to the movement of children and young people. The changes, which are similar to those that I have just set out, will ensure that information may be shared where that

“could ... promote, support or safeguard the wellbeing of the child or young person.”

There is also similar provision making it clear that information can be shared only where that is in accordance with the law, which includes data protection law, human rights law and the law of confidentiality.

The proposed new section 26A makes it clear that information cannot be shared under part 4 unless the Data Protection Act 1998 and other relevant law can be complied with. It also ensures that information cannot be shared where that

“would prejudice the conduct of a criminal investigation or the prosecution of any offence.”

With regard to delegated powers, the bill will introduce a new section 26B into the 2014 act, which will place a duty on ministers to issue a code of practice about the provision of information under part 4, which means by or with named person service providers. The bill provides for the code to be binding and states that it

“must ... provide for safeguards applicable to the”

sharing of information. The bill sets out the procedure that must be followed before issuing a code of practice, which is akin to affirmative procedure. It places obligations on ministers to consult relevant persons, to lay a draft before the Parliament for 40 days and to take account of any views expressed by the Parliament.

Although the Supreme Court focused on part 4 of the act, in relation to the named persons service, the bill will make similar changes to the information-sharing provisions in part 5 of the 2014 act, which relates to child’s plans. In particular, it will bring those provisions into alignment with the new provisions on information sharing under part 4, thereby making clear that information can be shared only where that is in compliance with the law and where it would not

“prejudice the conduct of a criminal investigation or the prosecution of any offence.”

Proposed new section 40B will place a duty on ministers to issue a code of practice in relation to the sharing of information under part 5, in the same way that proposed new section 26B will in respect of the named person service. The committee has been provided with an illustrative draft code of practice. That is intended to assist the committee in understating how the power to issue a code of practice could be used. It is intended to be an illustration only and shows how a code of practice could provide for additional safeguards in relation to information sharing. As it is an illustration, it was drafted with regard to the law as it presently applies. The illustrative code is set out in two parts: the first concerns safeguards and the second is a description of the relevant law. Those are both aspects on which the Supreme Court focused.

The code sets out the steps that the named person service provider, or the relevant authority seeking to share information with a named person, must follow in order for the information sharing to be in compliance with the law. It sets out the responsibilities to inform the person to whom the information relates and the need to seek consent, which will be applicable in most circumstances. Practically, that is likely to be the consent of the child or young person or their parents. It sets out the responsibilities that apply in the limited circumstances where the law permits consent not to be required, including steps to inform persons affected before or after sharing. Importantly, the code does not change the law on data sharing or human rights, but sets out the safeguards that must be followed to ensure that information sharing is in compliance with the law. The code also contains requirements to records decisions, which is an important part of good decision making.

The second part of the code provides a description of the relevant law. Again that is because of the importance that the Supreme Court placed on the matter in its decision. As I said, the draft that has been published is for illustrative purposes only: any code of practice will be subject to consultation and the procedure that is set out in the bill.

Before taking questions, I will address the financial memorandum. The Scottish Government has supported local implementation of the getting it right for every child approach by providing £10.2 million to local authorities to prepare for the commencement of parts 4 and 5 of the 2014 act. Prior to the planned implementation date of August 2016, local authorities, health boards, Police Scotland and other organisations had confirmed that they were ready and prepared to be compliant with those parts of the 2014 act on commencement.

The financial memorandum sets out the additional costs of £1.2 million that will be required to develop training and learning materials to support national consistency and to backfill for staff who are undergoing training on the new duties on information sharing only, which are set out in the bill.

The financial memorandum is based on the same modelling that was agreed with stakeholders and Parliament during the passage of the 2014 act. The expectation is that that training will complement and become part of the regular supervision and continuous professional development requirements that professionals undertaking the named person and child’s plans responsibilities already undertake. That will be supported by revised statutory guidance under the 2014 act, and by information and practice materials that the GIRFEC policy team will be developing in collaboration with children, young people and practitioners in advance of implementation.

I hope that that summary has been of assistance to the committee. My colleague and I are happy to answer any questions.

The Convener

I might ask some questions later, but I will first let Liz Smith ask her questions.

Liz Smith

Thank you for the information that you have provided us with.

During the passage of the Children and Young People (Scotland) Bill several years ago, one of the concerns that was expressed by witnesses—specifically the Faculty of Advocates, Clan Childlaw and Professor Norrie, who gave a legal interpretation of some aspects in order to assist the committee—was that there had not been sufficient consultation on the implications of data sharing and on some of the legal implications of specific terms, which I will come to in a minute. What consultation on those specific issues have you had in preparation for the bill? In particular, what consultation have you had with the Information Commissioner’s Office?

10:15

Ellen Birt

As officials, we have been engaging very closely with the Information Commissioner’s Office. As I said, there was an intensive three-month period of engagement on the back of the Supreme Court decision, during which we sought to look critically at the issues that that decision raised and at how best we could move forward to ensure that the objective of a named person service could be fulfilled, because we know that practitioners and parents have told us that when the getting it right for every child approach is working, it supports them.

Recently, following that period of intensive engagement, we have continued to work through our close stakeholder groups. We have a national implementation group and a GIRFEC lead officers group, with which we have discussed the intricacies of the plans that the Government intends to implement. In the past few weeks, we have again met the Information Commissioner’s Office. The bill and the illustrative draft code of practice that is before the committee have both been drafted to be cognisant of the fact that the general data protection regulation is on the horizon. The way in which the bill is set out allows us to be responsive to that changing landscape and to ensure that, when additional safeguards and explanation are required once the position of the United Kingdom Government on the general data protection regulation is clear, we will be able to provide those through the procedure on the code of practice that I set out.

Liz Smith

Thank you for that.

On a technical level, are you confident that your advice to ministers about the legal definitions in the bill, and the advice on the legal interpretation that has been provided by the Information Commissioner’s Office, are clear?

Ellen Birt

I will defer to my legal colleague on that.

John Paterson (Scottish Government)

The answer to the question is yes.

I will pick up on Ellen Birt’s answer. In addition to the consultation that took place prior to the draft code of practice being published, there is a proposed requirement for the Scottish ministers to consult. I envisage that that consultation would include relevant bodies such as the Information Commissioner’s Office.

Rather than providing a power for ministers to issue a code of practice, the bill makes it a requirement for them to do so. The consultation that would take place prior to the code being issued forms part of the scheme that is proposed under the bill.

Liz Smith

I will make two technical points. The Faculty of Advocates notes that a section in the draft code of practice relates to the law of confidentiality, which is said to derive from common law. The Faculty of Advocates understands that the Scottish Government’s interpretation of the law of confidentiality is that it is a common law. In its submission, it says:

“It is not clear to what this section refers.”

Could you help us out with that?

John Paterson

Ellen Birt

I will start by dealing with your first point, to wrap up the discussion that we were having. You asked about what the Faculty of Advocates said when it asked which provision or section of the 2014 act the law of confidentiality applies to. The bill simplifies the relationship between what will be an amended 2014 act and the law. One of the concerns that the Supreme Court raised was how a duty to share information—a duty that did not carry any professional discretion—sat alongside the requirements of data protection law, human rights law and the law of confidentiality. The bill now removes that tension; there is no longer a requirement to share information. The bill creates a legal prompt for named person service providers and others seeking to share information with them to consider whether sharing that information would support, promote or safeguard the wellbeing needs of a child, and then gives them the power to share it. The law of confidentiality, data protection law and human rights law will apply to all of that decision-making process.

In relation to your point about the definition of wellbeing, it is again important to recognise that the 2014 act is setting up a named person service that provides help to children and young people and their families when they need it, in order to prevent low-level issues from escalating and turning into bigger problems. By their very nature, the wellbeing needs of children will be as different as the number of children. That concept has been well utilised and understood among practitioners, families and children who are using the indicators now. The 2014 act put those wellbeing indicators on a legislative footing for the first time. It is important to read the indicators with reference to the wider statutory guidance and practice materials that have been developed and will be redeveloped in relation to the bill. The Government’s position is that for wellbeing, unlike welfare concerns, there is not a threshold that children have to meet.

As you have set out, one of the principal changes from the bill is a move from there being a duty to share information to a situation in which professionals must consider and make a judgment that balances the sharing of information to promote wellbeing against relevant laws, particularly on data protection. What consideration was given to what that will do to the role of professionals and, in particular, to the capacity and capability that those professionals have to make that judgment as part of their work?

Ellen Birt

I point to the fact that the people with those responsibilities are professionals; they are the teachers, health workers and others who are already engaged with children and families. The intention behind the named person service was that families, children and young people would have a single point of contact who they were already familiar with.

As I said before, the law that the bill requires compliance with is the law that already applies. When considering whether sharing information could promote, support or safeguard the wellbeing needs of a child, the duty under the Data Protection Act 1998 in the vast majority of circumstances is that that is done with the consent of the child or their familiy. Those wellbeing needs would be discussed with the family, and any intervention or proposed move forward would also be discussed with the family.

Daniel Johnson

I accept that that is the situation for the majority of cases, but where it becomes controversial is in the extremes. You are right—we are talking about professionals who are trained, but they are trained in healthcare or education, and not the law. Was any work carried out to look at their capacity—their ability to carry out the work—and capability to undertake those judgments? What new implications will the change have for those professionals?

Ellen Birt

During the passage of the Children and Young People (Scotland) Bill and the current bill, we have engaged extensively with education and health stakeholders in relation to the impact that the approach will have on the workforce. We also have a national implementation support group that includes professionals from local authorities and the health sector, and we continue to engage closely with health boards, unions and representatives of the teaching workforce.

In relation to difficult or extreme cases, it is important to underline that the bill and the 2014 act do not in any way alter current child protection mechanisms. The law is clear on what professionals must do when there is a significant risk of harm, and professionals who work in an education or healthcare setting are familiar with that.

We have touched on this issue, but I am looking for further clarity about the provisions on consent being in the code of practice rather than in the legislation. What makes you confident that you have met the requirements of the Supreme Court without putting those provisions directly into the bill?

Ellen Birt

I want to draw this to a close. We wrote to the cabinet secretary about it and he got back to us to say that he would provide an illustrative draft code of practice to accompany the bill just to show us how the powers might be operated once the bill has been passed. We are getting caught on something that was meant to be helpful—regardless of whether we find it so—when there are more important issues to discuss about the bill.

We will move on with Johann Lamont. Please do not go back to the code of practice.

Johann Lamont

No, I will not. We can raise that with the cabinet secretary himself.

I have a couple of final questions. Has there been a change in the policy intention in this area of work? I ask because what we are now seeing feels a very long way from the real world. The real world is not just about families who are seeking help; there are also families who resist seeking help and their children are vulnerable. Does the bill address that situation?

As I said in my opening statement, £10.2 million has already been invested in supporting the people who will have responsibilities for the named person service to ready themselves for implementation. Those organisations confirmed with the Government ahead of August 2016 that they were ready to be compliant with the law under the 2014 act.

As I set out, the bill will make changes in relation to information sharing only. It clarifies the relationship between what would be an amended 2014 act and the current law on data sharing, human rights and confidentiality. Using modelling similar to that which was used during the 2014 act’s parliamentary progress, the Government has identified a further £1.2 million that will be invested in 2018-19 to develop the training and ensure that it becomes embedded within the normal CPD and supervision requirements that persons who will take on those new responsibilities already undertake. Our expectation is that it will be a one-off investment and that that training will become part of the regular and ordinary professional development and supervision.

Liz Smith

Why would it be a one-off investment, given that new named persons would require continuing training?

Ellen Birt

That is how services deal with turnover of their staff now. The additional funds that are being invested are to ensure that the training methodology and the practice materials that will be required to support that training are in place.

Liz Smith

Are there no financial predictions for the continuing costs beyond the additional £1.2 million in 2018-19?

Ellen Birt

As I said, we used the same methodology that was applied to the 2014 act. We will put in place the finances that are required to ensure that that training can be given, and that backfilling can be done, in 2018-19. However, as the financial memorandum sets out, the expectation is that that will be a one-off investment, with that training becoming part of the normal professional development and supervision requirements with which those professionals already engage.

The Convener

Thank you very much. I draw the evidence-taking session to a close and thank Ms Birt and Mr Paterson for attending and for their forbearance.

11:13 Meeting continued in private until 12:26.

6 September 2017

Second meeting transcript

The Convener (James Dornan)

Good morning and welcome to the 23rd meeting of the Education and Skills Committee in 2017. I remind everyone present to turn their mobile phones and other devices to silent for the duration of the meeting.

This is the second meeting at which we will consider the Children and Young People (Information Sharing) (Scotland) Bill. Two weeks ago we heard from Scottish Government officials. This morning we have two panels: the first is made up of representatives of the legal profession, and the second of people from the health service.

I welcome Kenny Meechan, who is a member of the privacy law sub-committee at the Law Society of Scotland, and Janys Scott, Queen’s counsel, from the Faculty of Advocates.

Liz Smith (Mid Scotland and Fife) (Con)

I will ask Janys Scott the first question. In your submission, you rightly say that the Supreme Court identified two key issues with the bill. Your submission states:

“The first was that there was a serious lack of clarity for those implementing the legislation and the second was the lack of safeguards for those affected.”

Your submission then says that

“Neither of these issues is easy to resolve and some of the criticisms of the Supreme Court will continue to apply if the Bill as drafted is passed and the accompanying Code of Practice is approved.”

Could you be very specific about what you think those criticisms by the Supreme Court are, and why they will not be addressed?

Janys Scott QC (Faculty of Advocates)

I will start with the criticism, which was that the bill solves one problem only to raise another. The Supreme Court said that when previous legislation required the sharing of data, and compliance with the Data Protection Act 1998 was required at the same time, that imposed a circular consideration on health visitors, teachers and others who were required to abide by the legislation. If a person is required by law to do something, they are not in breach of the 1998 act, but the act exempts them only if they are required to do something by law. There is a circular problem.

The bill proposes a shift so that there is no longer a requirement to share information, but a power to share information. That would remove the difficulty of circularity, but the Supreme Court has said that because the requirement to share information gives people protection under section 35 of the 1998 act, if they are no longer required to share information, that protection will be removed. The responsibility for safeguarding people’s data would be shifted, in effect, on to the information holder. That would require health visitors and teachers—laypeople—to implement complex law on data protection, and it is very fast-moving law. If you look at the responses to the consultation exercise, you will see that those people are puzzled and do not know what to do. They are asking you to define terms for them. It is going to be difficult for them.

I can go on to what the problem is with defining terms, if you like.

Liz Smith

I will come to that in a minute. To be clear, are you saying that the responsibility for taking the decision would be shifted on to the named person—the practitioner—instead of resting in law, or with Parliament because it has scrutinised that law? Is that what you consider to be the problem?

Janys Scott

That is part of the problem. It is not just named persons; other service providers must consider whether to pass data on to the named person. Laypeople who are involved in the care of children in other respects will be asked to exercise some very complex functions. The issue that the Supreme Court raises is whether the bill is clear enough to allow them to know what they are doing, and to allow families to foresee what will happen when they share data with their dentist, doctor, health visitor or teacher. Would they know what was going to happen, and could they regulate their behaviour accordingly, if they felt the need?

Liz Smith

Thank you. That is very helpful.

I come to the substantive issue, which I believe has been quite a problem since the Children and Young People (Scotland) Act 2014 was passed, and is a very considerable issue at the present time: the lack of a definition of the term “wellbeing”. That is raised in quite a number of the submissions. I am interested in the Law Society of Scotland’s perspective on it, as well. Two weeks ago, we were given information from the bill team, who said that the term “wellbeing”

“has been well utilised and understood among practitioners, families and children”.—[Official Report, Education and Skills Committee, 6 September 2017; c 12.]

“Health professionals, such as health visitors, are, however, already well practised and familiar with information sharing and how to do this in line with data protection law, European law and in a manner which is compatible with the European Convention on Human Rights”.

We are talking about not just health professionals but a wider range of people. Is the issue not then more about training? Mr Meechan has said that people will have to know a wide range of things that they did not have to know before. Is it not just about making people aware of the parameters within which they work?

10:00

Kenny Meechan

I spend a significant amount of my working life training people on data protection issues, so I know that it is not an easy subject for people to embrace. We have done a lot to get across the message about keeping people’s data safe and secure and, barring human error, we are usually not too bad at it. People will need a much deeper understanding of data protection and human rights legislation in order to satisfy themselves that all the tests have been met. In some regards, the tests in the code of practice are misleading, at best. The code suggests that people should ask for consent and that they should, if they do not get it, think about whether they can share the information anyway. That very much runs counter to the Information Commissioner’s Office’s code of practice on data sharing, which makes it clear that, if people are going to share without consent, they should not ask for consent, because that is misleading.

People will have to be trained in such concepts, and the code of practice does not really address that. It reads as a primer on information law—I have actually commended it to a couple of colleagues who were interested in finding out more about that—but it will not really tell a professional from another discipline what they need to know. It does not tie in in any meaningful way with what a named person is supposed to do.

The Convener

Are you suggesting that the problem lies with how the code of practice is written and that it should be made clearer?

Kenny Meechan

The code of practice has to be made clearer. There are some problems with the bill, but when we strip it back, the bill largely provides just a statutory vehicle for the code of practice. It can be argued that the powers to share information already exist. People have been sharing information because it is reasonably necessary to do that to carry out their functions as part of an education or health authority. That is a reasonably well established legal test. In some respects, the powers in the bill will not add to what we already have. Ultimately, the real meat of the bill is that it creates a statutory code of practice.

Gillian Martin (Aberdeenshire East) (SNP)

Am I correct that it is a draft code of practice?

Kenny Meechan

It is a draft code of practice. I have spoken to the bill team about it, who have said that it is a draft.

Gillian Martin

I would prefer that we refer to it as a draft code of practice, because anybody watching the meeting would be given the impression that the code of practice is set in stone, whereas obviously it is a draft at the moment.

Janys Scott

The problem is that the meat of what is proposed will be in the final code of practice, which will not come before Parliament. That is a big issue. Would Parliament want to approve a code of practice for professionals to implement that it had not seen and which can be changed?

Daniel Johnson

Are you saying that it would be better if the guidance was put on a statutory footing?

Janys Scott

It would be better if the guidance was on a footing that allowed MSPs to have parliamentary scrutiny of it.

Daniel Johnson

That is perfect. That is exactly what I wanted to know.

Johann Lamont (Glasgow) (Lab)

It is helpful, when passing a piece of legislation, to think whether it will be compliant with all the necessary requirements and whether it will be implemented in a lawful manner. One of the problems with meeting those conditions is that the Supreme Court was concerned that, because the provision in the named person legislation was unclear, it could not easily be implemented in a manner that was compliant with the law. With your questions, you are drilling into how easy and appropriate the implementation of the proposed new legislation will be, and you are expressing concerns about how it will be done and what the practical parts are. That is where professionals need the guidance. At the moment, we are looking at a higher level and at whether a framework will be needed to meet the requirements of the law. That was the concern of the Supreme Court.

Johann Lamont

The issue is also whether the practice inhibits the policy intention of safeguarding children. One of our judgments will be to test the practicalities of the legislation against the intention of the original legislation.

The Convener

I call Tavish Scott.

Tavish Scott (Shetland Islands) (LD)

I apologise for being late, convener.

The submission from the Faculty of Advocates to the committee says that, with regard to professionals, the imposition of the code

“risks making their job considerably more difficult and undermining the trust of families and the willingness to share information with the professionals concerned.”

Could you expand on that argument, please?

Janys Scott

As outlined in the Supreme Court’s decision, families do not know what professional people such as teachers, health visitors and midwives are going to do with the information that is shared with them. Will I be willing to share with my health visitor that I have post-natal depression? I do not know where that information will go. Can I be certain that it will not be shared with my child’s teacher? When might it be shared with my child’s teacher? Will it be passed on to them without my consent? In those circumstances, will I be willing to tell my health visitor that I have post-natal depression? If I do not tell them, where will my depression take me? That is just a small example of the sorts of issues that might arise unless we have clarity for families and they are kept involved in the process.

The difficulty is that the draft code does not really help very much. It is a legal document—it outlines the law—but it does not give a clear pointer to where that sort of issue will be taken.

Kenny, is that what you were thinking?

Kenny Meechan

Broadly speaking, yes. The illustrative code of practice does not provide any meaningful guidance in its current form. However, as I understand that it will be rewritten, I do not propose to speak about it at great length.

A more fundamental issue is that the legislation is trying to reconcile two almost irreconcilable points. Because the Supreme Court has said that this is all about sharing information without consent, you build a consent model into the information. Then you look at the GDPR, which is on the horizon, and the draft guidance on consent that has been issued under the GDPR, and they make the point that, because consent under the GDPR has to be freely given and informed, it will not work terribly well if there is a massive imbalance in power between the agency asking for consent and the person being asked. The GDPR specifically says that, for a public authority, consent will not be the most appropriate way forward if that power imbalance exists. That is a difficult square to circle.

Janys Scott

The other problem is that it is going to be difficult to draft. Let me highlight three points. The first, which we have already discussed, relates to the vagueness of the term “wellbeing” and its centrality to whatever is done under the code and the legislation. Secondly, there is a question whether words are being misused. Some of the submissions refer to, for example, “sensitivity”; however, that is not the same thing as sensitive personal data, which is a categorised form of data.

The difficulty is whether the Parliament can legislate for something that is already in other legislation. We know that very soon—indeed, on 25 May 2018—the legislation that exists at the moment will not be in place any more. At that time, the GDPR will become directly enforceable, and anything that you do will have to be compatible with that.

Our proposal is that, because the Supreme Court made such an issue of the need to inform people that their data was being shared, that should be added to the essential considerations required of the named person service provider. If you are going to ask the service provider to consider whether they should share the information in terms of the wellbeing test and then give them the power to share it, you should add to that a consideration of whether it is appropriate to inform people and so on, as specified by the Supreme Court. You will have seen our proposal; we think it consistent with the bill, and I do not think that it is something that the cabinet secretary will necessarily oppose. It does not impose any extra test other than one that is within the intendment of the bill. If you are going to impose a duty of consideration, you must have the full gamut.

Oliver Mundell

Thank you—that is super.

Your written submission also says:

“Where there is any conflict between the statute and the Code of Practice, the statute will prevail.”

In cases where the statute was silent about something that the code of practice spoke to, where would we stand legally if, for example, we went to judicial review?

Janys Scott

The existing bill contains a requirement for compliance with the code. In such cases, the expectation in any judicial review would be that the code would be complied with. The code is stronger than guidance—it imposes duties on people.

Oliver Mundell

From a technical point of view, does that mean that the code could change the law in this area? Could it in theory change the thresholds or where proportionality sits?

Janys Scott

It could not change human rights issues. If something was contrary to human rights, the human rights aspect would prevail and anything that was in the code would either have to be read down or disregarded. Moreover, it could not change something that had been imposed by a European regulation. Such regulations prevail over domestic law until we leave the European Union—and then we are in the hands of the bill that was introduced in the Westminster Parliament last Friday.

Kenny Meechan

The bill could usefully set out a number of ground rules. It should set out what the law is, and the code of practice should say how it is to be implemented. It should not create any new rules, standards or tests, although it might set out or clarify which tests the existing law expects people to apply.

The logical sequence of events should be, as has been mentioned, to think first of all whether sharing the information will assist the child’s wellbeing, however that is defined, and if the answer is yes, to proceed to considering whether it can be shared legally. The first question that you need to ask is, “Can I share this without consent?” The reason why that question comes first is so that you are not then going through the mock exercise of seeking consent when you have already decided to share the information anyway.

If the information is sufficiently important that you feel that you should be sharing it without consent, you are arguably going beyond wellbeing and starting to stray into child protection territory. That would be my thinking. Sharing without consent is something that the Supreme Court was very much against in its ruling. If the information that you have does not pass the threshold of being sufficiently important to share without consent, the next step is to figure out how to ask for consent in a way that is compatible with the GDPR requirement that makes it clear that, in cases where there is a power imbalance, consent is not always going to be appropriate.

The code of practice might usefully address that kind of area. I could envisage a code of practice that says, “When seeking consent from the young person or the parent, you must make it absolutely clear that there will be no adverse consequences if they say no.” If that is not made clear—and I appreciate Janys Scott’s experience that that is not how it works in practice at the moment—you cannot really say that a person has given free, informed and voluntary consent. That is the level of detail at which I would anticipate a code working.

Oliver Mundell

Janys Scott

I put myself in the position of a primary school teacher. Information comes into my possession and I ask myself whether I should share it with social work. To decide that, I will have to go through an exercise which, at the moment, I do not have adequate guidance on. I will have to ask myself, does this information impact on some aspect of the SHANARRI indicators test? Does it impact on how this child is achieving and what does that mean? Is it necessary to share the information to allow this child to achieve better? If I do not share the information, what is the effect of that? If I am thinking of sharing the information, will it be a proportionate sharing? That is to say, will the sharing of the information result in a problem that is more serious than not sharing the information?

The thought of a primary school teacher sitting down at 4 o’clock in the middle of marking a load of books and thinking all that through without help and trying to make their way through a code of practice on things that I, as a lawyer, would find difficult, in the knowledge that if they get it wrong, it will be raised in a court of law, strikes me as something that would be unattractive to that primary school teacher. Does that give a flavour of what I mean?

10:30

Daniel Johnson

Yes. Mr Meechan, do you agree with that? Would you say that, even as a legal professional, that would be a difficult decision to make?

Kenny Meechan

As a legal professional, I would normally be involved in providing legal advice to a practitioner. Typically, I would deal with social workers rather than education professionals, but the principle is the same. I can provide the legal framework for them, but they have practitioner knowledge, experience and skills that I do not have.

There is a non-consensual element in the bill. The provisions that relate to a change in service provider say that the outgoing service provider will provide the details of the child or young person to the supposedly incoming service provider. That does not reference consent anywhere; it just places a straight duty on the outgoing service provider. It is made subject to the test in proposed new section 26A of the 2014 act of whether it is data protection compliant, but the problem is that that takes us straight into the same logic puzzle with which the Supreme Court wrestled and that it concluded was such a weird question that it was unclear and therefore fell foul of the tests.

Absolutely.

The Convener

I thank the witnesses very much for attending and giving us their words of wisdom. We will suspend for a few minutes to allow the next panel of witnesses to take their seats.

10:41 Meeting suspended.

10:46 On resuming—

The Convener

I welcome our second panel. Professor Alison McCallum is director of public health and health policy at NHS Lothian; Professor Hugo van Woerden is director of public health at NHS Highland; Valerie White is consultant in dental public health at NHS Dumfries and Galloway; Jean Cowie is principal educator at NHS Education for Scotland; Annette Holliday is a health visitor and member of Unite; and Lorna Greene is policy officer at Royal College of Nursing Scotland.

Before we start, I should mention that Professor van Woerden, Valerie White and Jean Cowie are appearing as individuals who work for health boards, so their perspective is not necessarily that of their employers. In addition, Annette Holliday is appearing as a health visitor and accredited member of Unite.

Colin Beattie

Will the witnesses talk about their current practice in sharing information on wellbeing, with and without consent?

Valerie White

The other point is that we talk about consent when we mean working with children and families to engage them in services to come to a shared view of the best way forward and when we are talking about getting formal consent for procedures. The duty to consider sharing information seems to me to be an appropriate phrase that allows us to engage children and families to come to a shared view, even if it is not appropriate to go down the route of obtaining formal consent, which older children and families could withdraw.

Colin Beattie

Are you referring to situations in which there is a professional relationship with the family and a decision is made in that context on the best way to care for whichever member of the family requires the care, as opposed to sharing information with third parties, which is perhaps the more contentious side of things?

Professor McCallum

The framework that we have in place in Scotland allows us to have formal relationships between, for example, the health service and the local authority and with third sector organisations and to agree, in line with the Data Protection Act 1998, what information is shared for the purpose of providing services.

That is quite a strong statement. What would be the impacts and consequences on the ground if that were to come about?

11:00

Lorna Greene

To explain what we mean by that, we need to go back to where the concept of the named person came from and took off. The approach in Highland is a really positive example of what happens when practitioners are allowed to develop meaningful relationships and build trust, and when information sharing takes place in an appropriate way that is in line with the existing legal parameters. That happened as part of best practice, and we see it as a really great contributor to GIRFEC and promoting and supporting wellbeing.

We already face challenges from parents—particularly those who do not wish information about their children to be shared. That impacts on the way in which we provide immunisation services, for example. Under the National Health Service (Scotland) Act 1978, we are required to offer immunisations to all children. It is important that we have positive child identification so that we can identify children for whom immunisation is not clinically appropriate but it can be offered to everyone else. There is a point of consent at which parents and, indeed, older children can refuse consent to immunisation. We need to know who every child is and where they go to school in order to provide universal services, as well as to ensure that we have the infrastructure in place to provide additional support for children with chronic and on-going problems, so that is already a problem for us.

And the organisation has placed trust in you and is responsible for your behaviour on that one.

A couple of people want to come in, so I will come back to Lorna Greene.

Gillian Martin

A few of you were sitting in the gallery when the previous panel was in. Janys Scott made a recommendation, which was also in a submission to us, that people be notified when data about them is shared. Given what you have just been talking about, what impact could that have on, say, the safety of children? If you notice that a parent has refused care for a child in a way that concerns you and the parent has to be notified when you make another person aware of the situation, what impact might that have?

Valerie White

Obviously, people will want to follow good practice and get consent where appropriate, but there is certainly a tension in that respect. How will seeking consent affect your on-going relationship? It is a difficult issue; on the one hand, you have your professional obligations, but, on the other, you do not want to stretch your relationship with the family. If you were able to have an informal conversation with the named person about some low-level concern, they might be able to reassure you on the matter or even say, “Thanks very much—I’ll have to go and look into that.”

Gillian Martin

So if a letter had to be originated to let a parent know that you had spoken to the named person, that could be an issue in some cases.

Valerie White

It could be a barrier. Let us be realistic: historically, there was some nervousness even about certain child protection matters, but we have got over that and moved past it now. We are talking about a cultural shift with the new threshold that has come about as a result of GIRFEC and the wellbeing-focused and supportive approach that is being taken. Having to share letters and so on might make it difficult for people to see it as a supportive approach.

Annette Holliday

The fact is that relationships can be fractured and it can be difficult to restore them. At certain levels of child protection, other processes come into play. There is the potential for more of that to happen at the wellbeing level, because at that level you might not have the child protection framework that you can use as a counterbalance. It all comes down to having shared decision making and shared views with families, and practitioners being brave enough to go beyond all that, but you certainly do not want to fracture any more relationships with families, as that will be damaging in the longer term.

Lorna Greene

The RCN has made it quite clear that it sees the named person as part of an early intervention and prevention programme and that conversations about wellbeing should, for the most part, take place in a forum where there is consent and where you are having a dialogue with the family and their children. If you have that conversation and you are concerned that the child is at risk of harm, you begin to veer into child protection issues, which will require a different conversation. As a result, we have tried to focus on this as part of an early intervention and prevention strategy and policy and to keep it rooted in that domain.

Going back to the duty to consider sharing information and the impact on professionals, which we discussed earlier, I think that it is also worth mentioning an issue that has not yet been mentioned: the duty to identify. It, too, could have repercussions for professionals, but it feels quite vague and we are not entirely sure what it means yet. For example, is it a duty to identify information that comes directly to you, or is it a duty to identify and further investigate a particular issue? What does that mean for the role of the health visitor? When we spoke to the legal professionals in our organisations, they were a little bit concerned about that duty and flagged up the potential for that role to take on something of a watchdog aspect. It is not an issue that we have explored a whole lot—and I did not hear it being explored in the previous evidence session—but it should definitely be flagged up, because we think that it could have repercussions for our members.

The Convener

Thank you. That was helpful.

Professor van Woerden

I think that trust is often built on sharing, openness and transparency. I certainly support the suggestion that, under normal circumstances, families would be informed if information was being shared. I say that for two reasons: first, it builds trust; and secondly, it provides the opportunity to correct matters of fact. Often such areas are quite complex, and it is possible that the professional in question might be incorrect about certain matters of fact.

11:15

Johann Lamont

It has been said that responsibility for a failure in the system would lie with the local authority or health board. I am interested to know what such organisations would do internally to protect themselves. What are the consequences for practitioners if a health board says, “We might get into trouble, so we want to ensure that all our employees are doing the right thing”? Does that put a different kind of pressure on people? Perhaps Annette Holliday can answer my question. Have you had training on that, Annette? I presume that an organisation would want to ensure internally that employees were doing the right thing in order to protect itself.

Annette Holliday

I am not here to speak for my organisation. As a health visitor, I can say that we have had training, but it took place before the Supreme Court ruling so there would need to be updates and changes in respect of the Children and Young People (Information Sharing) (Scotland) Bill. We were trained on the duty to share.

You ask what would happen if there were failures. As with anything, the usual investigatory proceedings would follow, and practitioners are concerned about disciplinary proceedings being taken against them.

Johann Lamont

Have there been conversations in health boards about the nature of such a disciplinary procedure, given that there is a lack of clarity about expectations?

Annette Holliday

I cannot answer that—I do not know.

Professor McCallum

There has been a lot of training in NHS Lothian. Following the Supreme Court judgment, further communications went out to say, “Please continue to work in the current professional manner and seek advice as appropriate.”

There are implications for individuals, but there is also organisational time resource involved, in relation to the collation, transmission across or between organisations, storage and eventual safe disposal of such information.

Clare Haughey

I want to come back briefly on Lorna Greene’s point. She may not have seen the NMC’s submission. The NMC said that, because its “main interest” was

“making sure that our UK wide regulatory provisions and any named person information sharing provisions in Scotland can operate”

The professionals who we are speaking about who are involved in child development make judgments on that anyway, based on the situation. It is not always black and white, is it?

Professor van Woerden

Absolutely.

Professor McCallum

To build on Professor van Woerden’s point, in line with best educational practice, to ensure that everyone can practise at the level that we would expect them to most of the time, seven and a half hours of training will provide awareness raising and highlight gaps in confidence and on-going skills, but those gaps will then need to be filled using scenarios to test decision making and support systems that allow people to have their decision making checked out. There also needs to be on-going support as new scenarios and new evidence come along that people need to learn from. For me, it is important that there is a comprehensive programme that links with early intervention, prevention and support. Even as a marginal additional intervention, seven and a half hours of training will give us only a false sense of security.

11:30

The Convener

I have a question on an issue that might be in Jean Cowie’s area of expertise. When new things come in and training regimes are put in place, do they not eventually just become part of the educators’ role or part of the role of whoever is responsible for training in an organisation? Do they not become part of the overall training rather than stand-alone training?

Jean Cowie

With the introduction of the health visiting pathway, for example, we provided continuing professional development days to upskill the workforce. However, as Alison McCallum said, that is more about awareness raising, and we expect practitioners to go and learn more. We had sessions with the educators on the health visiting courses in Scotland to ensure that the courses addressed the key requirements and priorities for Scotland and the pathway at that time, and the 2014 act was part of that. However, as Annette Holliday pointed out, that was a couple of years ago, and the training needs to be constantly revisited and updated.

The Convener

Eventually—again using your role as an example—the training will become part of the training for new recruits into nursing or whatever.

Jean Cowie

Yes, that will happen over time, but it will probably take quite a while for it to be integrated properly.

Lorna Greene

Lorna Greene

It is difficult to comment on that. The parts of the original act that referred to information sharing were deemed not to fit in with human rights law and European Union law; therefore, whether they were easy to understand is irrelevant because they were not lawful. That does not matter. What matters is that the bill that is in front of us now introduces vague concepts that we do not feel would necessarily aid professionals in providing a meaningful service that would achieve the best possible results through a named person service.

Oliver Mundell

Thank you very much.

I have one further question on the recording of evidence and decisions. You have talked about supervision and the need for consistency across different services, with people making the same decisions every time. How can you achieve that consistency without looking at the decisions that are being made and the information that people have decided not to share? How can someone supervise that process without understanding the decisions that have been made?

Professor van Woerden

It is complex, as you know. The area that I tried to highlight in my submission as being particularly complex involves teenagers. The question is whether a teenager is competent to give consent on their own behalf. That is one of the areas in which professionals would have to make decisions. There was a slight unintended mixed message in what was being said in that, by considering the wellbeing of a teenager, one was, in effect, saying that the teenager was not competent to consider and look after their own wellbeing. At the same time, one might say that the teenager was competent to make a decision about consent. With children under the age of 12, there is a difference such that that is not the case.

One potential solution, which might clarify the situation, would be for GIRFEC to apply up to the age of 12 and not to teenagers. An alternative solution that would reduce the mixed message would be to say that, if somebody is not competent to look after their own wellbeing, they are not competent to give consent either.

Valerie White

From a practitioner’s perspective, I do not think that the legislation will ever be clear; it will always be complex. It is underpinned by guidance that is supported by the key stakeholders for the professions—in dentistry, that is the General Dental Council—and the defence organisations. By its nature, the legislation will always be complex and difficult to interpret, so it will probably be really important that the underpinning even below the code of practice is in place and agreed by key stakeholders, so that we are all singing off the same song sheet.

Oliver Mundell

Lorna Greene mentioned the press interest in the matter and the negative media attention. If the bill is passed and implemented, will there be considerable interest in the decision-making procedures below the legislative framework? If something goes wrong, will the focus of attention be on the recording and sharing of information and the decisions that are made at a local level?

Lorna Greene

That is a difficult question to answer, because I do not know what will happen with the bill down the line. We mentioned the media coverage and flagged it to the GIRFEC team because we were aware of the impact that it would have on our members, who are trying to do their job. To do that, they need to be trusted by the people whose doorsteps they turn up on to deliver care and support. Whatever happens with the bill, we want actions that make it clear that health visitors provide care and support through building trust and meaningful relationships with the people who use their services. I do not know which way the media will go with the matter following on from the bill. We want the GIRFEC team to promote the positive messages and underline why health visiting and the named person role can be meaningful.

Clare Haughey

I was struck by the Unite submission, which says:

“Unite the Union are dismayed by the approach that many in public life have taken during this debate with the Named Person becoming the rope in a political tug of war. The well-being of the child and the professionals identified as the Named Person being the potential casualties in a battle of political dogma. Ultimately it will not be a politician who has to argue the merits of the Named Person but a clinician establishing a relationship with a child and their family.”

That is an important point to make. You guys are out there at the coalface, working with families, so you have to develop a trusting relationship. We must be mindful of that.

Tavish Scott

The converse of that is that the witnesses expect us to pass legislation that works but, as they all said, the code of practice, in effect, does not exist because the draft is going to change, so we cannot do our jobs. I get the point about the need to pass sensible legislation that can work, but I am worried about passing legislation when we do not know the basis of it because we do not yet have the code of practice. The witnesses have confirmed that today. What do they want us to do—pass legislation that they know has failings in it or wait and ask the Government to get it right when everything else has been sorted out?

The Convener

I am not convinced that that is a question for the witnesses to answer. It is a fair point to raise, but I do not think that the committee is trying to propose legislation when we do not know what it is about.

Tavish Scott

In that case, I am not sure that I see the point of our being here.

Gillian Martin

I will ask about workload. The witnesses have covered much of what I would have asked about. Am I right in thinking that there is an issue about having to evidence things that ordinarily would be onerous to evidence for a bureaucracy that will steal time from the job that professionals should be doing?

We have talked about the illustrative code of practice, which I take as being intended to engender a conversation among professionals about what such a code could look like. I throw the question open to you: what would you like the code of practice to look like? How would you like to engage in the process so that the code of practice gets your support, given that you are the key stakeholders?

11:45

Professor van Woerden

The key point is that the code should emphasise that parents are the experts on their own children and that others stand alongside to help and support them in exercising their duties. As a society, we aspire to fantastic things for our kids and for the next generation of children who are growing up, but we do not want to pressure parents unduly by saying that they are failing unless their kid is right at the top in everything. We need a sense that the parent is the expert and that the system comes along to be supportive and encouraging and to help to maximise the achievements of every child.

Annette Holliday

Unite wants consistency and clarity for its members, with every practitioner across Scotland working to the same code of practice rather than following different variations. There might be local tweaks but, in general, there should be a clear, consistent message rather than a code that is based on a load of legal speak that we do not understand because we are health visitors and not lawyers.

Lorna Greene

As I said, we have not engaged on the code of practice because it is illustrative and will change and because we do not support the bill. The RCN would like the Scottish Government to consider more carefully the merits of allowing best practice, in line with data protection law and European law and in a manner that is compatible with the European convention on human rights, to be the basis for information-sharing provisions. We think that, with the right guidance and training, professionals can be trusted and expected to deliver a high-quality and consistent named person service. Services across Scotland are already delivered in line with standards and in accordance with best practice as laid out in guidance. We do not see why the situation would not be the same in this case.

Professor McCallum

I am keen that the aspiration that we all have for our children and young people to achieve their potential is realised. That requires an infrastructure that enables information sharing to allow professionals to do their jobs, to deliver universal services and to ensure that practitioners can work with colleagues from other disciplines to deliver high-quality services. We must be able to share information in order to do our jobs to the standard that the people of Scotland require. Any legislation must support that work and not get in the way.

Gillian Martin

Given that you already have to record an awful lot of what you do on the ground, and given that the new considerations might have to be evidenced in some way, can you say, “Look—we are already doing this. We have this covered and don’t need a bureaucratic layer on top”? You are largely recording such information now, particularly in the Highlands, where that has been happening for a very long time.

The Convener

Does anyone want to respond to that?

Valerie White

Currently, a general dental practitioner will write notes, so they would have to add a line to their notes to say, “I have considered this”. It would become part of the record-keeping process. However, if everything was okay and they did not think that there was anything that they needed to consider, would they still have to write that down?

Gillian Martin

I suppose that that is where the code of practice would come in.

Valerie White

Yes.

Gillian Martin

Thank you very much.

Johann Lamont

I was interested in Dr McCallum’s point about the legislation not getting in the way of people doing their job. The RCN has basically said that the bill does not help, and other folk have talked about the extra burden. It all feels very complicated. Is there a point at which we say that all this very technical debate is getting in the road? If somebody has not only to make a decision but to show evidence that they have thought about it—considered it and decided in which categories they have to consider it—at what point do we say that that is getting in the road? What would be the test for that?

Professor McCallum

At the moment, practitioners document what they do in line with their professional standards so that they can have conversations with their supervisors, and they write clinical notes in order to deliver a service, as I and others would. I do not think that the duty to consider provides much of an additional burden to that.

It is particularly important that the guidance has proportionality. Let us imagine that a health visitor comes in and says, “Your kid is a wee bit slow at speaking. I am going to refer you to the speech and language therapist.” For 95 per cent of the time, the parent would say, “Wonderful. I am so pleased. Thank you so much.” The difficulty comes when the parent says, “Oh, speech and language therapists. I think they are total quacks. They are a waste of time.” Does that make sense? There has to be proportionality once you are into child protection.

The difficulty is that there is a spectrum. Most parents want to ensure the wellbeing of their child and have no contention at all with professionals; that is the case 95 per cent of the time. The challenge comes with distinguishing what I would describe as idiosyncratic parenting from poor or harmful parenting; there is a gradient and it is about demonstrating how, proportionately, one has considered the child’s needs, the need to communicate with other professionals about the child’s needs, and the varying extent to which that would be documented.

Daniel Johnson

On the point about wellbeing, the SHANARRI indicators cover things such as a child’s being “included” and “achieving”. Surely that brings differences of opinion much more squarely into scope, perhaps in more than 5 per cent of cases. For example, one parent might think that a child should speak up all the time, and another might think that a child should listen first and then speak—I am not saying that that would be flagged up, but we can see that there might be consequences. How much of a concern is that?

Professor van Woerden

I am 100 per cent behind the aspiration of the Scottish Government. We want our children to do well. We want to be able to make a holistic assessment of the child, and we want to push forward every boundary of the child’s wellbeing.

Are you asking specifically in relation to the named person?

Colin Beattie

I am asking in relation to the named person, but you might also reflect on your current process.

12:00

Lorna Greene

As I said, I am not a practitioner, so I am not a clinician who delivers care in that sense. However, in relation to the named person and what you said about withdrawing consent, it is clear that children and their families are under no obligation to engage with the named person service if they do not want to or if they have changed their minds about it. GIRFEC guidance is clear that there should be no problem if consent is withdrawn from the named person and there is no involvement with child protection.

Colin Beattie

What would be the mechanism for withdrawing consent? You have said that consent is not always in writing and is sometimes implied.

Lorna Greene

I imagine that that is why robust guidance on the matter will be needed—whether that is in relation to best practice or whether that is dealt with in the final stages of the bill. Either way, there will need to be robust guidance that outlines the position clearly to the practitioner. Families need to be absolutely aware that they are not obliged to take part in the named person service and can end their participation in it at any point. That is what the GIRFEC team has said and it will need to make that clear when implementation happens.

Professor van Woerden

Caldicott has been mentioned. I am a Caldicott guardian for NHS Highland and I know that there is a lot of on-going work on information sharing. Dame Fiona Caldicott has produced three reports over the past decade and more; the most recent is the national data guardian for health and care’s “Review of Data Security, Consent and Opt-Outs”, which she produced last year. It considers the issues in relation to health. She does not provide total answers but, for example, her recommendation 11 states:

“There should be a new consent/opt-out model to allow people to opt out of their personal confidential data being used for purposes beyond their direct care.”

The issue is bubbling in all care areas and it relates to the new European legislation that will come into play to replace the Data Protection Act 1998.

Colin Beattie

So that is all still developing.

Professor van Woerden

At one level, it will always be developing, because technology is changing so fast. That is about technological changes such as cloud storage of data and so on that mean that there is an on-going scenario of change—it will always be a dynamic area.

The Convener

I have one last question. The issue of guidance has come up a lot from just about everybody. The committee surveyed local authorities and health authorities and found that more than three quarters of them agreed that their organisation should provide further guidance on when information could be shared. I know that Perth and Kinross Council has a child protection committee. Have any witnesses looked at the Perth and Kinross example or similar examples to identify best practice and how guidance has been rolled out? I accept that that roll-out had to stop because of where we are now, but it did take place.

Professor McCallum

We looked at Perth and Kinross as our data-sharing partnership was developing guidance in the area. We have multi-agency child protection guidance and guidance for persons caring for adults whose children are vulnerable, and similarly with adults.

There is overarching agreement between agencies, and individual agreements for the purposes of delivering particular services. That means that we can say to—in this case—children and families, “This is how we do our business. This is what the team around the child looks like.” If consent was withdrawn for a particular agency, that person would not be part of the team around the child and everybody else would just have to fill in. We do not see that changing in practice and we see the named person idea as strengthening practice and perhaps ensuring less confusion in complex situations.

The Convener

So it could be possible for organisations to roll out guidance once it becomes available.

Professor McCallum

Some organisations have the infrastructure in place, but not all do.

The Convener

Thank you very much. That brings us to the end of the session. I thank you all for your helpful evidence.

12:05 Meeting continued in private until 12:19.

20 September 2017

Third meeting transcript

The Convener (James Dornan)

I welcome everyone to the 24th meeting in 2017 of the Education and Skills Committee. I remind everyone present to turn their mobile phones and other devices to silent for the duration of the meeting.

Tavish Scott will join us, but he will be a few minutes late. Daniel Johnson has given his apologies, as he is unwell.

The first item of business is an evidence session on the Children and Young People (Information Sharing) (Scotland) Bill. This is the third meeting at which we will consider the bill; we have already heard from the Scottish Government’s bill team, members of the legal profession and the national health service. This morning’s panel will focus on services that local authorities provide, including education and social work.

I welcome Dr Gary Clapton, who is senior lecturer in social work in the school of social and political science at the University of Edinburgh; Andrew Keir, who is getting it right for every child manager at North Ayrshire health and social care partnership; Jackie Niccolls, who is a team leader for social work services at Glasgow City health and social care partnership; and Jenni Brown, who is principal teacher of pupil support at Dumfries and Galloway Council education services.

If the witnesses would like to respond to a question, they should indicate that to me or to the clerk, please, and I will call them to speak. Ross Greer will open the questioning.

Ross Greer (West Scotland) (Green)

To begin with, it would be useful to know the current state of play with the implementation of GIRFEC and the named person scheme in your local authorities.

Jackie Niccolls (Glasgow City Health and Social Care Partnership)

GIRFEC is woven into all our policies and procedures, but the named person scheme has not been implemented in any meaningful way. A proof-of-concept hub was started last year, but that was abandoned in light of the Supreme Court ruling, so Glasgow employees—particularly social work employees—do not have a lot of experience of the named person scheme and its potential impact on service delivery.

Andrew Keir (North Ayrshire Health and Social Care Partnership)

In North Ayrshire, the getting it right for every child approach has been around since 2005—I think that that is the date of the first document in which we mentioned it. We have used the term “named person”, but we have not taken forward the specific functions that are spelled out in the Children and Young People (Scotland) Act 2014; people have been named persons in name only.

Until last year, we were developing a physical named person service in our headquarters. Initially, we thought that that would be a good vehicle to support named persons to share concerns with other professionals, but we put a stop to that because we were unclear about information sharing, and we reverted to the position under the Data Protection Act 1998—well, we did not revert to that; we have always kept to that act and shared information with consent.

At the moment, the sole function of named persons is to manage requests for assistance. If a family request assistance from a named person, that request will come to the hub, which will either route it to a particular service or try to find a service to support the child. It is a consent-based model only. We are not sharing information; it is only about families saying, “I need this sort of help.”

Jenni Brown (Dumfries and Galloway Council)

In Dumfries and Galloway, we are quite far down the road with GIRFEC, certainly in education. We have used the named person idea in education for probably the past three years, and we have shared information to some extent. A little like North Ayrshire, we had plans to set up a hub that information could come into and be routed out of into different agencies. That was put on hold when the Children and Young People (Scotland) Act 2014 was not implemented. That is how we run our policy and look after our pupils in education in Dumfries and Galloway. Although we do not have the back-up of the act actually having been implemented, everything in terms of a pupil in a school goes through a named person, and information from other agencies is shared to some extent.

I reiterate that. I work across the partnership with colleagues in social work, health and education. Practitioners have always considered what information it might be relevant to share. However, the duty to consider might have an impact on adult services, such as in cases in which a family who are involved with addiction services or mental health services have a dependant child. It might help adult services to consider the impact on that child and what to do with that information. There might therefore be an advantage of the duty to consider for adult services. However, that is already part of the psyche for principal lead professionals in social work.

Dr Clapton

I agree. One of the main principles that we teach in social work is that partnership with parents is the ne plus ultra of good social work practice. One of the concerns about the named person scheme that still hangs in the air is that it was about parents rather than for parents. That phrase has hung around. Many of the social work students with whom I work have talked about that, because it butts against basic social work values about partnership. The duty to consider is part of what we do; it is, as Andrew Keir said, part of our psyche.

Jenni Brown

In education, staff consider very carefully whether to share, and that has always been the case.

Johann Lamont (Glasgow) (Lab)

If there was a duty to consider in law, would there be a different expectation about providing evidence of what you had considered? I presume that you do consider information as professionals, but you would not necessarily have to record that in the way that you would be asked to under the duty to consider. Alternatively, would there be no difference?

Andrew Keir

Information comes to practitioners all the time. The difficulty would arise in knowing when to record that they had either decided to share or decided not to share. That could become a bureaucratic nightmare. It would be resource intensive if, every time a practitioner received information and thought about whether to share it, they had to record why they had or had not shared it. I do not know where the threshold would be for recording all that.

Liz Smith (Mid Scotland and Fife) (Con)

I seek your comments on evidence that we took previously. Three weeks ago, the bill team told us that the concept of wellbeing was well utilised and well understood. Last week, witnesses from the legal profession and other witnesses representing the Royal College of Nursing and various other professionals told us that they did not agree with that. What is your perspective on it?

Jackie Niccolls

I know that, when I studied the 2014 act, legal services were critical of the shift away from the term “welfare”, which was easily defined in legal terms. In legal terms, “wellbeing” remains a bit of an unknown. Practitioners are quite clear about the holistic needs of the child that are incorporated in the term “wellbeing.” It is not necessarily child protection; there may be more of an understanding at a front-line practitioner’s level than can be taken into the legal system.

What do you want to happen now for clarity with regard to the code of practice, for example? This is your opportunity to feed into a forum about what practitioners want from the code of practice.

Jenni Brown

I want something that is very straightforward and backs up professional judgment, which is very sound most of the time. It is based on putting the child at the centre and doing the best for the child. I want the code to back up the decisions that are currently being made and make sure that a teacher is not exposed to legal retribution in whatever way.

It has to be done in a very straightforward manner. Teachers are extremely busy; the environment is constantly changing with regard to exams and other things. This scheme is an additional workload; for secondary school teachers in particular, exams are at the core of what they do.

Gillian Martin

You have just said that you are in effect already doing what a named person will do, so why do you see it as an additional workload? What aspect do you see as onerous?

Jenni Brown

The child’s plan process that comes with the named person scheme is additional. It has pretty much always been the case that there has been an individual who could be approached by a child and who has an overview on everything that is happening in the child’s life.

Gillian Martin

I ask for the social work point of view. You engage with schools. What do you want to see from the code of practice?

Jackie Niccolls

I do not think that the code of practice needs to be in legislation. It needs to be robust. I looked at the draft code for what it says on the perennial issue for services of information sharing. The last item in the list in the code, which is about whether a decision is in

“the best interests of the child”,

comes back, again, to professional judgment. We have discussed that; as the document says, it is the responsibility of the local authority, not of the named person as an individual. The named person needs to be aware that, ultimately, they are not going to be personally liable if they share information or, indeed, do not share information. They need guidance about what information can be shared.

Andrew Keir

On the question of having a named person policy, the concept of having a named person to co-ordinate at a lower level is a fantastic idea. We need someone to co-ordinate support for those children who need it. The difficulty comes from how we interpret “wellbeing”. From one practitioner to another, they may have very different views of what it means to be respected or responsible or anything else, dependent on their personal and professional experience. The concept of wellbeing has its difficulties for interpretation and thresholds.

However, like my colleague, I do not think that we need to have the code linked to legislation. We seem to have forgotten about the practice around getting it right for every child. There is a practice model with five practitioner questions—what is getting in the way of this child’s wellbeing? What information do I need? What can I do? What can my agency do? What help do I need from others?

We need to attach to the robust guidance examples of what that might look like in practice, linked to GIRFEC. We seem to have disassociated ourselves from GIRFEC and taken a legal route. I would like to us to come back to having a robust practice document around the established national practice model questions and processes rather than having a legislative document. This would then become real to practitioners and they would know when and at what points they needed to share. To be honest, if I am in the field and I am busy, I do not have time to answer someone who says, “Andrew, does that comply with schedule 2?” I need something very quick that I can make sense of.

Dr Clapton

The benign element of the named person scheme seems to have been lost in the mists of time, with all the discussions and debates that have taken place in the past couple of years. It strikes me that one of the challenges is articulating the added value that the scheme brings to the table of existing services, such as headteachers and health visitors.

As Andrew Keir said, we missed an opportunity to articulate things. “Wellbeing” remains undefined. There are eight safe, healthy, achieving, nurtured, active, respected, responsible and included—SHANARRI—indicators, but there are 269 sub-indicators, and they have grown arms and legs; some of the definitions are very technical. One is “laughs a lot”. One of the main concerns that I expressed in my written submission is that that increasing thicket of indicators might lower the threshold for intervention, and mistrust might therefore develop.

Existing child protection procedures have their difficulties, but they are fairly well articulated—we have the children’s hearings system, definitions of abuse and so on—but when we start to move wellbeing on to the table, things become messy and conflated. That is a major challenge.

The Convener

I will bring in Oliver Mundell very briefly.

Oliver Mundell (Dumfriesshire) (Con)

Andrew Keir said that a code of practice should not be in legislation. The problem is that the Supreme Court asked for some of these things to be legislated on so that they are clear in law. I just do not see how it is possible to match up what professionals need and the legal certainty that people need. The Scottish Government says that it is difficult to put that in primary legislation because such legislation would need to be very precise and specific and to cover all the different possibilities.

Andrew Keir

I just do not see what the bill gives us in addition to what we already have in the Data Protection Act 1998 and the Human Rights Act 1998, apart from the duty to consider sharing information. Why legislate when legislation is already in place? All we are saying is, “Refer to this legislation.” That is an argument for legal services, but practitioners need something very simple. It cannot be prescriptive, because every single situation is different and people’s lives are different.

That goes back to the point about wellbeing. When we compartmentalise ourselves into indicators, we lose subjective wellbeing. We can look at subjective wellbeing as having two elements. The first is personal wellbeing—things such as how a child feels about themselves, their resilience, their identity and their belonging, which SHANARRI does not really give us. The second is social wellbeing: what is their community like? Do they have trusted adults? What are their relationships like? Again, I do not think that SHANARRI gives us those things. When we consider sharing, practitioners do not just look at wellbeing in those very narrow SHANARRI terms; they look at other things that impact wellbeing and then decide whether to share.

I think that the code should be put in legislation as long as it does not confuse practitioners—however, it is confusing them now. Practitioners are retreating back to thinking that they had better not share anything because they feel that they do not know where they are supposed to go to get their legal advice from. I think that that practitioner message is clear.

10:30

Ruth Maguire (Cunninghame South) (SNP)

I should draw folks’ attention to my entry in the register of members’ interests, as I am a former councillor on North Ayrshire Council.

We have taken quite a bit of evidence on the code of practice and I know that colleagues have touched on it. What I am hearing is that it needs to be clear and accessible and in language that is meaningful to all the practitioners who are involved with children and families.

To what extent are your views on the bill dependent on the content of the finalised code of practice?

Dr Clapton

I do not know.

Jackie Niccolls

What we think of the bill will absolutely hinge on the final code of practice. It is useful to debate that, but the finished article could sway our view of the bill in its entirety.

Andrew Keir

As it stands, the code is an illustrative draft. I think that if the final version is overly legalistic, it will have no impact on practitioners. The code of practice needs to have some meaningful triggers in it so that practitioners can say, “I know what questions I need to ask to be able to take this a step further.”

There is other material out there, from the Information Commissioner’s Office and others, with examples that walk you through what things you should consider and when in quite accessible language.

My plea would be to put the code of practice in a language that practitioners find easy to navigate and which is not overly legalistic. It comes back to the question of who the code of practice is for. I am not quite sure who it is for. Is it just for named persons? Is it for all practitioners who come into contact with children? I am unsure. The shape of the code of practice depends on who the audience is.

Jenni Brown

If information sharing is at the heart of this whole act and is about named persons working to advantage, this code of practice is right behind that. It has to be accessible, easy and quick to use. If it is to help named persons and support their decisions, it has to be straightforward, quick to read, flow chart-type information, otherwise, staff will not use it—they will not have the time to use it. It has to be very accessible.

Ruth Maguire

What involvement would you expect your organisations to have in forming a code of practice and what involvement have you had previously with this type of thing?

Andrew Keir

I would expect that each health and social care partnership and local authority would be consulted but, more than that, the legislators need to learn from practice experience. It would be good to have representations from practitioners at some point in that journey rather than just a consultation on the draft at the end.

The Convener

One thing that has come out of the evidence sessions is that the Government will have to listen to stakeholders about the code of practice. That is perfectly clear.

Oliver Mundell

The panel has talked about flow charts and making the code easy to understand. These are really difficult, complex legal questions, which is why the previous legislation wenft all the way to the Supreme Court and was weighed up at length, with the court balancing past cases and looking at different bits of legislation and how they interact.

Can that ever be explained in a flow chart? Will practitioners and people on the ground ever understand the intricacies around proportionality and how all the different bits of legislation fit in? Is it possible to simplify that and still meet the legislative standard?

Andrew Keir

It is difficult to simplify such a complex subject. It is not only the law that is complex; there are a lot of ambiguous terms in relation to what is required and what must be considered. What do terms such as “public interest” mean? Practitioners have to apply interpretations, whatever terminology we use. The bill uses the phrase “in its opinion”, but we all have different opinions. I do not think that the bill can make the position any clearer for us or make such decisions any easier. What will make things easier is training and a consistent message about when we need to ask certain questions.

To come back to the term “wellbeing”, people interpret that in different ways, and their thresholds are different. We need to build in a model whereby practitioners can ask someone for help. We want them to ask their managers or the named person service. There is no reason why any professional cannot pick up the phone to another and say, “Here is the situation with this child—what do you think we should do about it?” They can anonymise the case and seek assistance without disclosing any information about the child. We need to build in safeguards so that practitioners can get assistance in thinking a situation through. It is a complex area, and people have different thresholds. That is the difficulty.

The Convener

What suggests to you that the safeguards are not in place now? I suspect that that is how you work now—you phone a colleague and anonymise the situation. Why would anybody think that that does not happen?

Andrew Keir

I am suggesting that that is what happens. Why do we need an act if that is already happening?

The Convener

We needed a named person act, but we are here to discuss the effect of the Supreme Court’s decision. That is exactly what this session is about. We are here because the Supreme Court has told us to be here.

Andrew Keir

To take the practice forward, I need to be clear about the legislative landscape. I am sure about what the landscape is like now, but I do not know what it will be like in the future. We have to plan for the future and train our staff—that does not happen overnight. We have to prepare for it, so we need to know now.

We have such processes in place. My question is whether they will still be in place. If the answer is yes, why are we changing anything? We have the 1998 act, and processes are in place already. I do not understand why we need a new bill to tell us what we need to do in the future if we are doing it already.

Oliver Mundell

I think that the Government’s policy memorandum says that there are possible options to allow the named person scheme to continue without the bill at all.

I have one final question. You have said that you want more than consultation and that you want involvement in the process. As practitioners and people who are working in this field, do you find it odd or unusual that members of the Scottish Parliament will not have a vote or a formal say on the final code of practice? Do you find it unusual that it is not deemed necessary for the members of this committee, for example, to go through the code in detail? Given the importance of the code to the bill, would you expect members of the Parliament to have more of a direct say on whether it is signed off?

Dr Clapton

I think that you should have that, but I am not a practitioner—you can address the question to the practitioners.

Jackie Niccolls

I was not aware that MSPs would not have a final say or overview on signing off the code.

The Convener

A code of practice is normally drafted after a bill is passed, so the situation that we are looking at is unusual. We were given an illustrative code of practice to help us—it will be interesting to see whether we get one the next time a bill is introduced.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Jenni Brown mentioned concerns about consent, which I will explore a bit more. To what degree are the witnesses aware of the changes under the general data protection regulation and their implications for practice on seeking consent for information sharing?

Jackie Niccolls

My knowledge of that matter is limited.

Jenni Brown

I am afraid that my knowledge of the legislation is limited, too.

Andrew Keir

The changes will strengthen the seeking of consent and the rights of children and adults. Consent is always a difficult issue. We should always have been asking for consent, unless that places the child at additional risk or there are criminal proceedings, for example.

It is always good practice to work alongside families in partnership. I do not know whether we can ever achieve full partnership with families, because we are in a different power differential as a result of the nature of what we do. In “Child Protection: Messages from Research”, Hedy Cleaver spoke of how practitioners can build that partnership and trust through honesty, integrity and so on. Once we have trust with families, consent is a lot easier to discuss, because it becomes part of the conversation rather than something that we spring on people. The issue is about getting support and help.

We should always ask for consent as a first port of call, and the GDPR will strengthen that. The issue then becomes how and where to record the consent and what to do if consent is refused. The Data Protection Act 1998 covers those issues with regard to the risk—or potential risk—of significant harm and the public interest. It is right and appropriate that consent is there, given people’s rights to participate.

Colin Beattie

I was struck that the Information Commissioner’s Office submission says that the GDPR means that

“a public authority will not be able to rely on consent as a legal basis for processing in any case where there is a clear imbalance between it and the individual to whom the data relate.”

Is that significantly different from where we are now?

Jenni Brown

I am not sure.

Andrew Keir

It is a hard question.

The Convener

Ask an easier question.

Colin Beattie

I will go on to an easier question. In the context of the named person service, how best can you ensure that consent is explicit, freely given and easy to withdraw after it is given?

Oliver Mundell

Is that question easier?

Jackie Niccolls

No—it is not any easier.

Jenni Brown

I think that I can answer. It is always easier when we have a relationship and have built up knowledge of the child and the parents, but that is not always in place.

Colin Beattie

Do you always get written consent? Is verbal consent satisfactory?

Jenni Brown

Schools are probably moving more to written consent, to consent for sharing and to naming who information will be shared with.

The Convener

The information commissioner will be at our meeting next week to address such questions.

Colin Beattie

I will certainly follow up that point.

Should the bill refer to consent, or is it enough for consent to be in the code of practice, which will be mandatory? Does that make any difference?

Andrew Keir

I do not want to speak too much. Whether consent should be in the bill depends on what it says about consent. A person should consent only in relation to particular information for a particular purpose. That is difficult in practice, because our intervention with a family is often multifaceted—we have different information at different times and might use it differently. It is difficult to record every time that we have a new piece of information that we want to share, perhaps for a different purpose. However, it is important to record that. Good luck with how you make sense of all that in the bill.

10:45

Colin Beattie

I will give you an easy final question. Should the bill include a requirement to consider the views of the child, young person or parent when you are considering whether to share the information?

Yes.

Clare Haughey

You already decide that information should be shared or that it should not be shared without consent. Is approaching someone for consent the first thing that you do?

Jackie Niccolls

Normally, the first thing that we do is check that the family are okay and, as part of that, we discuss the situation with the school. That is not always possible—sometimes we cannot make contact with the family, for whatever reason—so other agencies might well be approached before we gained consent.

There is obviously a line management structure, so if a worker is in any doubt about information sharing, they speak to their line manager. We get requests for information from solicitors, for instance, and in such cases we seek advice from our legal section and from the data protection advisers in the local authority.

On the question of people in education phoning us to ask what we think about a piece of information, we have relationships with the headteachers of schools in our area, so it is quite possible for us to get such calls. That is not a formal structure; it is much more informal—it is just people we have met at different venues seeking a bit of guidance—but there is also the formal structure of social care direct.

Clare Haughey

In normal circumstances, outwith immediate child protection concerns, would the first step for both of you be to seek permission to share the information? Is it the case that you would not share information immediately without seeking permission from the child, if they were of the appropriate age, or the parent or caregiver?

Jackie Niccolls

Andrew Keir

If I remember the original question, it was about support for children. We do something in provision for the early years that I will use as an example. The existence of the health and social care partnership helps us to do it, and we are looking to extend it. We have placed social workers in the health visiting teams. The social worker is managed by the health visitor manager. To all extents and purposes, that social worker is part of the team. They are not responsible for child protection or looked-after children; they are there purely to support and assist families.

The health visitor will always identify with a family what issues there might be—they might be to do with relationships or a whole myriad of things—and ask whether a social worker who does not have child protection responsibilities can come to support the family. Nine times out of 10, the answer has been “Yes”.

GIRFEC is about getting the right help at the right time to the right person. As I said at the beginning, we should not forget that it is about getting it right for every child and how we best look after children. It is not about a teacher becoming a social work assessor. It is about using the skills of the different people involved. To do that, we have to share information. Social work has great skills in assessment and building therapeutic relationships. With the consent of families, we involve social work very early through our new model for the early years. We want to extend that to the five-to-18 age range within schools so that we can provide support at the very point that it is needed. It then becomes preventative early intervention, without having the stigma of a social work intervention. It is about using the right skills of the right people, but it is necessary to share information to do that.

Johann Lamont

Reflecting on what has been said, if I were to play the devil’s advocate, I would say that some of our young people were failed as a result of professional misjudgment and professionals not speaking to one another. That has been the driver for the legislation.

Some of the evidence that we have received, including Dr Clapton’s submission, suggests that if we formalise the approach, practitioners will lose their intuitive instinct for understanding that there is a problem and that defensive practice will emerge. To what extent is that a problem? If that happened, we would be going in the opposite direction from the very thing that drove the named person legislation and GIRFEC, which was to ensure that signs are spotted early. Am I overstating the danger of defensive practice emerging, which would be worse than the practice that we have currently?

11:00

Jackie Niccolls

Once the scheme is in place, if it happens, will it not just bed in? That is a serious question—I do not know the answer. Major changes happen, but a year or so down the line they become part of what people do. You have been through change before and thought that it was horrific.

Jackie Niccolls

Yes, that will be the reality. It is just the initial refocus on information sharing that is making everybody take a step back and become a little more reticent about it. Eventually, it will embed into the system and people will revert to doing what is safest for children, which is sharing information.

As Johann Lamont was saying, long and weary is the notion that every agency has a piece of the jigsaw and that we get the full picture when we put that information together. I know that there are concerns about families and the invasion of private life. There might be concerns in one agency, but the other pieces of the jigsaw might ameliorate those concerns, with the result that the agencies do not need to be involved in families’ lives. It is not all about us finding a route to be involved.

The Convener

Yes. There is no invisible army of social workers desperate to go into everybody’s houses to do stuff.

Thank you very much for your attendance. That was a very useful session.

11:08 Meeting suspended.

11:13 On resuming—

27 September 2017

Fourth meeting transcript

The Convener

The second item of business is two panels of witnesses on the Children and Young People (Information Sharing) (Scotland) Bill. This is the fourth meeting at which we will consider the bill. We have already heard from the Scottish Government’s bill team, as well as from members of the legal profession, health service professionals and local authority education and social work representatives. This week, we have a focus on schools and early years in the first panel, followed by witnesses from the Information Commissioner’s Office.

Before we take evidence, I put it on record that, as agreed by the committee, the deputy convener and I met the Deputy First Minister and Cabinet Secretary for Education and Skills yesterday to discuss the themes in the evidence, and concerns that members have raised during evidence-taking sessions so far about the bill and the draft code of practice. That was to ensure that the Government is sighted on the committee’s concerns, including the lack of a code of practice to inform scrutiny of the bill and the current status of parliamentary scrutiny of the code that will be prepared under the bill. We hope that that will enable the Government actively to consider the committee’s concerns at this relatively early stage in scrutiny of the bill.

I welcome to the meeting Gillian Fergusson, depute rector for pastoral care at Hutchesons grammar school, who is representing the Scottish Council of Independent Schools; Lisa Finnie, the president of the Scottish Guidance Association; Maria Pridden, a classroom assistant and member of Unison; Lorraine McBride, a headteacher and member of the Educational Institute of Scotland; and Christine Cavanagh, network chair for the Lanarkshire area in the National Day Nurseries Association.

If any of the witnesses would like to respond to a question, they should indicate to me and I will call them to speak. I remind members that supplementary questions should lead on from the question being pursued and are not an opportunity to ask a second question.

Gillian Martin (Aberdeenshire East) (SNP)

I thank the witnesses for coming along to give us information. What is your current practice with regard to sharing information about children in cases that fall beneath the threshold for child protection but go into the realms of wellbeing?

Gillian Fergusson (Scottish Council of Independent Schools)

In the independent sector, we are committed to the getting it right for every child approach and we have interim guidelines. Many of our colleagues across the sector have a commitment to GIRFEC, but our current practice is a policy-based model that adheres to consent-based principles. There is a lot of anxiety about sharing information when a case does not meet the child protection threshold, so we would seek consent and share information with consent. I have spoken to a number of colleagues, who confirmed that the practice is not to share information without consent.

Lisa Finnie (Scottish Guidance Association)

I agree with a lot of that. As far as possible, we would not share information without consent. Obviously, when a case involves child protection, it is completely different. However, a lot of information goes between people daily and there is anxiety about always being able to record that consent has been sought.

Most people I have spoken to are very much in agreement about what we are looking for. We all understand that quite a heavy document is needed to begin with to get everything covered, and we are all happy with that. However, so much happens on a daily basis—for example, you might have a frantic meeting. Flow diagrams have been mentioned previously, and I think that all my colleagues would like to have that kind of ready reckoner to be sure that they are on the right lines.

We are also looking for a bit more scenario-based training, which is the kind of training that we are used to. I talked about difficult situations. We need to learn how to find a way around the more unusual incidents, rather than the type of incidents that we all deal with every day.

Ross Greer (West Scotland) (Green)

It was suggested by previous panels, from other sectors, that defensive practice might become an issue. Have the debate and the uncertainty over the past year changed practice already? Are people doing things differently?

Gillian Fergusson

When the Children and Young People (Scotland) Act 2014 was passed, we saw an increase in communication. Because we are unique in the independent sector, we perhaps do not have the same level of communication as local authority schools have. I saw an increase in communication in my own practice and I heard the same from colleagues.

Since the Supreme Court judgment, that communication has decreased. In addition, we were really positive about the better lines of communication that we had with external agencies—with service providers—but that communication has definitely decreased since the judgment.

The Convener

Does anybody have any other views?

Lisa Finnie

I am sorry—I will try not to speak all the time, but it is difficult. I would say that it was more a case of relaxing into being allowed to share information. My colleagues have not reported a change in their behaviour—I think that what is different is how they feel about it.

The only thing that has changed is that people share hypothetical situations more often. Instead of being confident that they have definitely done the right thing, they might ask, “If this happened to a child, what would you do? Who would be the right person to go to?” People might run something by social work that they would not have run by it in the past, when they would have been confident that they had made the right decision. We might be a bit more tentative and anxious about sharing now, as opposed to not sharing at the appropriate times. I think that we have been sharing what should be shared and not sharing what should not be shared.

Ross Greer

How much of a change to current practice would the duty to consider whether to share information represent?

Lorraine McBride

The difference is that if you had a concern, the duty would give you the backing to share that concern even if the parents were not happy about it. We should all be working together on the GIRFEC agenda—the whole point of it is that everybody is doing their best for every single child. When barriers are put in front of us, it is quite difficult to meet the needs of each child. The duty would enable named persons to say that they were going to share something because, as a named person—a person who has responsibility to ensure that a child is okay—they thought that that was in the best interests of the child. To do so might be against the parents’ wishes, but the named person might have a real concern. It would be unusual for parents not to want to work with us in the best interests of their child. However, the duty would give us the backing—I do not want to say clout—to do the right thing for that child, in confidence.

Gillian Fergusson

A lot of colleagues are already thinking about the duty to consider and what they are doing with information, so it would not change what we already do. The next question that we ask is whether we can share without consent. That is where the problem is. As Lorraine McBride said, it is unusual to have a parent or guardian who is at odds with our working towards the best outcome for their child. However, such cases do happen, and they are where we would perhaps benefit from more guidance on whether to share information without consent.

Liz Smith (Mid Scotland and Fife) (Con)

What happens, on a practical level, when you have to make a decision on whether to share information? Are you seeking guidance about both the law and the code of practice that you would expect to give you back-up? In your daily lives in schools, where you work with very young people, does having to do more paperwork place a greater burden on you?

Lorraine McBride

Absolutely. To be honest, everything to do with GIRFEC causes a burden on the person who has to do the paperwork—that is the de facto named person, at the moment. The administrative side of that represents a huge burden, and the confidentiality side of the paperwork has kept increasing.

Liz Smith

Has that been to the extent of preventing you from dealing with other things? Can you give us an example?

Lorraine McBride

For example, if a health visitor phones and needs information there and then, we have to access the information, pull it together and get it into a document that has to be sent securely. All the time, we are thinking that we are supposed to be in the classroom, doing a monitoring visit or speaking to a wee one who we wanted to catch up with.

For me, as a headteacher, and for EIS members who are headteachers and depute headteachers, our day can very quickly be filled up with that one piece of paperwork that needs to be pulled together. It is important and it needs to be done, but does it need to be done by the headteacher? I do not know. There is a fine line there, because of confidentiality. Do we say to someone in the admin team, who is already overworked and underpaid, “I need you to drop everything to do something else. I know that you’re doing absences and trying to phone people to find out where their children are, but this is needed by 12 o’clock”? It is an additional burden on our time. What happens all the time is that we extend our day beyond the contractual hours so that we can get all those other things done. I am sure that it is the same for everyone here.

Lisa Finnie

It is exactly the same for us. I feel that we do three jobs. We do the job during the day, which involves phone calls, emails, the teaching itself, children appearing at the door, and dealing with the incident that has blown up after the weekend and needs immediate attention. At the end of the day, the children go away and we start the next job, which is trying to put things into the SEEMiS wellbeing software program—as we watch the circle on the screen go round and round—and also finding bits of paper, putting things away and all the stuff that we have to do when we are at our desks. Then we go home and do the third job, which is all the things that we can do from home. Those might be 3 am jobs, which is why we get teased for sending emails at silly times. Realistically, there are three jobs. The only analogy that I can give is that it is like asking a checkout girl to go and fill the shelves when she has a queue. It cannot be done, and it is impossible to expect people to do it.

The Convener

But you do it now.

Lisa Finnie

I would not say that I am doing everything that I am meant to do, and I find that very difficult to come to terms with.

10:15

Clare Haughey (Rutherglen) (SNP)

I thank the panel for coming. I have a brief follow-up to the question before last. We all accept that child protection concerns trump everything and that such issues are raised regardless of consent. However, we need to be clear that we are discussing issues that fall below that threshold. What do you currently do when such issues arise? How frequently do they come up?

Maria Pridden

I am a classroom assistant. We often work one to one with vulnerable children or with children who are class refusers; we take them out of class and spend a lot of time with them. At present, information sharing is purely verbal—there is no diary system or set process. We therefore need guidelines on how we share information on what has happened to a child on a particular day, and how it will affect their play time, lunch time and going-home time and any transitions that they might experience throughout the day. The system is purely verbal, so we would welcome guidelines.

Clare Haughey

Is it only in your educational establishment that the system is purely verbal? I imagine that there must be some written records.

Maria Pridden

If a child comes in to school and discloses that they have had a bad morning, that is relayed verbally. As classroom assistants, we do not have access to SEEMiS or to pastoral notes. We would tell the teacher what the child has said or we would tell other classroom assistants what has happened to the child. Sometimes, we do not get a chance to do that, because there is no time. We just do our best and try to pass on information.

Christine Cavanagh (National Day Nurseries Association)

In the independent nursery sector, our nursery heads are not named persons. That is the health worker—

Clare Haughey

I am not referring necessarily to named persons. I am talking about how you currently deal with the information. I am extending the point that Gillian Martin made. What do you currently do if the issue in question does not relate to child protection?

Christine Cavanagh

I understand. I was going to say that, very often, the nursery head has to act as a co-ordinator for issues that are not to do with child protection. They may well be dealing with a number of professionals who are all very overburdened.

As has been said, when we are dealing with one child and trying to help them to get the best outcome, that very often overwhelms everything else that the management team should be doing. We are simply juggling everything and trying to keep all the balls in the air to make sure that we get the best outcomes for the very vulnerable children. That sometimes means that the children who have less critical issues get missed because there is just not enough time in the day to do everything.

Clare Haughey

I am sorry, but we are straying from the question that I asked, which was about what you currently do.

Christine Cavanagh

We currently have a record. In the private sector, we keep chronologies for children that detail the issues that they have. It would be down to the individual nursery manager to seek support for individual children.

Oliver Mundell (Dumfriesshire) (Con)

My question is on the workforce pressures that you are talking about. Will the need to record decisions that are made as part of the duty to consider sharing information create more workload for headteachers in particular? If they are doing that for hundreds of pupils, will it lead to an increase in workload?

Lorraine McBride

Lisa Finnie

Yes. That is where we need the resourcing to be able to pass issues on appropriately and get the support that is required. To go into ideal practice again, how I envisage it is that, if I notice that something has gone wrong with one of my children because that has been brought to me by a teacher, or because I have noticed it, the child has raised it or a police report has come in, I will have somewhere to go with that—I will have support from child and adolescent mental health services, social work or the third sector.

Tavish Scott (Shetland Islands) (LD)

Gillian Fergusson

The Convener

Let us not have a round-table discussion about this. We were told yesterday by the Government’s bill team that individuals will not be held legally liable. What the Government needs to do is exactly what you have said, which is to make it perfectly clear to every practitioner that their legal status will not change from what it is now in respect of their doing their job. The last thing in the world that we need is people like you, who are keen to participate, being worried about sharing information because you might be held legally responsible. The Government has made it clear to the committee that the local authority, or whatever body, would be held responsible.

I see that Oliver wants to come in now, and disagree with me.

Oliver Mundell

I do not, convener.

To follow on from that, do you have concerns—to go a stage down from legal responsibility—about professional standards and about how concerns that might be raised by service users would be dealt with inside your organisation? Does that create additional pressure?

Lisa Finnie

There is anxiety about that. We are not necessarily all waiting for a legal writ, but people are concerned that they will be blamed for something that happens. The system is new and very high profile, so if something goes wrong, it would not just be something like the teacher not having marked some homework: it will be critical and it will be very worrying. People are concerned.

The Convener

I think that the Government will get the message that it has to make it very clear who will be responsible.

Daniel Johnson (Edinburgh Southern) (Lab)

Before I ask my question, it is worth putting on record that the Law Society of Scotland and the Faculty of Advocates said in evidence that the code is not clear about personal liability.

I have some questions about the need for clarity—there have been a lot of comments about that—on when you would share information. Following on from Tavish Scott’s point, how did you react when you read the draft code of practice? Is it adequate for what you need?

Gillian Fergusson

No. When I saw the draft code of practice, I could see how it would apply to the child protection threshold but not how it would apply to the wellbeing threshold in terms of sharing information without consent. People would share without informing or without seeking consent, which is really problematic. Apart from very exceptional cases, I cannot imagine where the draft code of practice would sit in relation to the wellbeing threshold.

It would help if we had an idea of what the trigger might be. I understand that that is really difficult to define; it comes down to the definition of “wellbeing” and how we measure it. The tools are there, which is helpful, but there is some confusion across the board in practice around “wellbeing”. We are looking at the draft code and thinking that we cannot imagine a case in which we would share information without consent around, for example, “included”, in a way that would not breach article 8 of the European convention on human rights or the Data Protection Act 1998.

The reference to “vital interests” in schedule 3 to the 1998 act is quite clear to me and other practitioners in terms of child protection, but not in relation to a lower threshold. That is what worries us.

Daniel Johnson

If there are no other comments about that, I will move on.

The SHANARRI—safe, healthy, achieving, nurtured, active, respected, responsible and included—indicators are broad, useful and very welcome, but they lack definition and can often be subjective. In a previous evidence session, we heard that taking a child up Everest could be an example of good parenting to one parent, but an example of something harmful to another. Can you think of examples of where you might share information in relation to the SHANARRI indicators that you currently cannot, would not, or might be hesitant to share? The answer appears to be no.

Finally, in evidence, the Law Society of Scotland and the Faculty of Advocates highlighted in a number of different ways the fact that the duty to consider is very finely balanced, from a legal perspective—it is one that, even as lawyers, they would find difficult. What concerns do you, as practitioners, have about getting the legal judgment right? Are you currently equipped to make that judgment?

Lorraine McBride

We worry ourselves sick every single day about every decision that we make. We think that we are confident in our abilities to make decisions about children and that we have the knowledge to enable us to do that. We know our children well. The SHANARRI indicators are a good indication of how children are doing. They are subjective, but most experienced practitioners can work out what children are experiencing and where it all fits in.

The question goes back to the legal thing and people being sure of themselves. We need to have clarity about whether we are doing the right thing in making decisions. I do not know whether training would help us to understand the duty to consider. It is a difficult situation, because it is hard enough making decisions about children without worrying about the duty to consider. A duty in law is a big thing. It would just make everything that bit bigger, in that we would second guess ourselves more.

Gillian Fergusson

The duty to consider is one element, but evidencing that duty is also problematic. We have a very good national practice model, with the resilience matrix, the wellbeing indicators and the “My world” triangle. That model works for us across the sector, and we use those tools, but it is quite a leap to move from that to evidencing the duty to consider. Perhaps more guidance on that would be helpful so that we have the security of knowing that we are doing it correctly, which is what we all want.

The Convener

Before I bring in Colin Beattie, I will clarify something. What is coming across is that you are already doing a lot of the things that you will be asked to do: you are already making decisions on wellbeing every day, are you not?

Witnesses indicated agreement.

The Convener

We can debate your concern about protection, but if there is clear notification that you will not be held responsible, that will take a big burden off your shoulders. It will also help if the code of practice is written in the way that you have suggested, with flow charts and so on. I say to Tavish Scott that I accept that it is not quite like that now, but that is what the witnesses have asked for.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Gillian Fergusson said that there is no common understanding of the term “wellbeing”. I do not know whether the rest of the panel agrees—I would be interested to hear whether they do. Does the term need a statutory definition? Is that possible?

Lisa Finnie

I thought that I knew what “wellbeing” means until I heard that other people do not know what it means. Now, I think that I do not know what it means. Up to now, I was pretty sure that there was the welfare element, which was more about child protection, the significant harm element, and wellbeing, which was about looking at SHANARRI when something was wrong—maybe the child was not behaving in a safe way, was not doing particularly well or something else was going on. I thought that it was quite straightforward, but maybe it is not. I am worried now. I was fine last week. [Laughter.]

Gillian Fergusson

I said that there is no standard definition or understanding of “wellbeing”. In our practice, we are quite secure internally about what it means, but we come across difficulties in interacting with service providers that have a different understanding of it.

Yes—information specifically on wellbeing.

Gillian Fergusson

Yes. It is a requirement. If we need to access service providers regarding support for a young person and we have consent to share the information, then we would absolutely want that provision in order for the young person to get the best outcome.

Do you mean sharing without consent?

Daniel Johnson

Yes.

Gillian Fergusson

That is part of the issue that we have. If I am looking at a case in which I think it would be helpful to share information because we might access a service, that might involve compulsion of the parent to engage with the named person service, which was never intended. We are left in a position where we have to say what we think would be best.

We have all had occasions when we have asked to share information and been told that we can share one piece of information but not another—we get partial consent. In the event of a parent—or the child, if they have capacity—saying to us that they do not want information to be shared, we would do two things: we would closely monitor the situation and we would see whether we had a better solution that is more creative and could achieve the same outcome.

However, it goes back to the named person service and the fact that parents are not compelled. There is a lot of confusion around whether parents can opt out of the named person service—which is a slightly different issue. The service is there should they wish to access it. We would want to share information to help the young person. If we cannot do that, that is a legal issue under the Data Protection Act 1998, which concerns why we would be sharing the information and how we would define vital interests. We are comfortable with that at a child protection level—but perhaps not below that level.

The Convener

Thank you very much for your evidence and your time this morning. That was very useful.

10:50 Meeting suspended.

10:54 On resuming—

The Convener

I welcome to the meeting Dr Ken Macdonald, head of ICO regions, and Maureen Falconer, regional manager for Scotland, both of whom are from the Information Commissioner’s Office.

We will move straight to questions. We understand that, under the new Data Protection Bill, your office will have a role in preparing the data sharing code of practice. Will you explain how the code of practice was developed for the Data Protection Act 1998 and what approach you plan to take to the development of the new code, including the likely audience, the use of plain language and practical examples?

Dr Ken Macdonald (Information Commissioner’s Office)

You are right. We have a statutory duty to produce codes of practice under the 1998 act. It was a statutory obligation to prepare the code of practice on information sharing, which was published in 2011. We have a standard approach when we develop codes of practice: we draft a code internally, seek views from stakeholders, review the draft code, amend it as appropriate and ensure that it is in plain English.

Anyone who has been working in data protection since the 1998 act came into force will have seen a sea change in the way in which our guidance is produced. The first guidance was very legalistic—in fact, it was not much different from the act itself—but, over the years, we have moved to a much more practitioner and citizen-friendly style. The guidance is in plain English and we give examples. We listen to our practitioners and try to make the examples relevant to them. There is input on the guidance and we consult on it.

The Convener

How do you consult? For the code under the Data Protection Bill, for example, who will you consult?

Dr Macdonald

It is slightly different according to the guidance that we are preparing. We consult interest groups. We produce our consultative document, make it available for six or eight weeks, take in the responses and amend our draft guidance as appropriate.

Maureen Falconer (Information Commissioner’s Office)

One of the good things that we do is set up a band of critical friends. We welcome constructive criticism, so we bring on board people who we know might have an issue with whatever guidance or documentation we are trying to put together. We basically let them loose on it and ask them to come back with any criticisms that they have and then we take those criticisms on board. When we are trying to put guidance together, it is really valuable to have critical friends to ensure that the guidance addresses the salient issues and is in plain English, as Ken Macdonald said. It exists for practitioners and the public to understand.

Liz Smith

Dr Macdonald, in your note to the Education and Culture Committee of 3 October 2013, under the section on legislative competence, you acknowledged that a number of witnesses questioned whether

“the competency of information sharing aspects of the”

Children and Young People (Scotland) Bill was in line with article 8 of the ECHR. You also acknowledged that you had considered Professor Norrie’s comments because you had some concerns about the matter. After that reconsideration, what advice did you give to the Scottish Government?

Dr Macdonald

I cannot recall. That is now four years ago. I know that, at one point, I wrote to the clerk of the Education and Culture Committee when the Children and Young People (Scotland) Bill was going through the Parliament. Our big concern was about the relevance of the information that would be shared. One of the data protection principles is about relevance. You can only share information that is relevant and not excessive, and we did not feel that the bill as introduced met that criterion under the Data Protection Act 1998.

Dr Macdonald

Liz Smith

Thank you for that clarification. I was trying to get at whether it was a political disappointment or whether it was to do with the process. You have clarified that it was to do with the process.

Tavish Scott

I am so tempted to say something about the courts, but I will not.

You have to rely on a specific condition for processing to be able to process information—that is anything that you can do with a bit of information, from obtaining it through to destruction and everything in between. The Data Protection Act 1998 sets up a framework, but people forget the preamble, which is also in the GDPR, where it is clear that it is not just about the protection of information but also about the free movement of information. The Data Protection Act 1998 sets up a framework to allow for the safe and secure movement of personal information. It is not about ticking one box, rather you have to get all your ducks in a row: you look to the eight data protection principles and then abide by them. The first principle is that information must be processed fairly and lawfully.

Lawful processing requires meeting at least one of the conditions for processing under schedules 2 and 3 to the Data Protection Act, depending on whether the data is personal or sensitive personal. Currently, in order to be able to share information below the “vital interests” level, the practitioner would still have to rely on one of the other conditions for processing, either consent—which is the first condition in both schedules 2 and 3—or, if the practitioner is not relying on consent, the processing has to be “necessary”, as the Supreme Court highlighted, for specific purposes.

11:15

The important point about information sharing is purpose. Everything to do with data protection is in the context of purpose. That purpose will make the information sharing compliant or non-compliant.

If the purpose is that the practitioner has a wellbeing concern, three levels have to be considered—significant harm, which everyone is familiar with; a wellbeing concern at a very low level, where the practitioner does not like what is happening and it is perhaps not in the best interests of the child but it is not going to harm the child or anyone else if it continues; and the grey area that sits just above the low-level wellbeing concern and just below significant harm, when a practitioner, using all of their experience and professional judgment, knows that the child is on a pathway to harm. That little grey area—and it is little—makes it difficult for everybody to understand how information can be shared under the data protection provisions.

If it is not health-related data, it is about whether it is a public function in the public interest. If it is health-related data, the necessity is likely to relate either to a public function under enactment or perhaps to one of the other substantial public interest conditions set out in the Data Protection (Processing of Sensitive Personal Data) Order 2000.

Ruth Maguire

Thank you. That was a very thorough answer.

You have partly answered my next question, and the committee has heard about it this morning. To what degree is what you have said understood among practitioners?

Maureen Falconer

It is understood almost implicitly by practitioners. The committee heard from the practitioners today that such decision making happens daily.

In the nearly four years for which I have been speaking about the information-sharing provisions, I have understood from practitioners that making such decisions is something that they do. They face decisions on that small grey area almost daily.

Practitioners do not need to think matters through in the way that I have set out. I am the data protection geek in the room and can therefore say what the conditions for processing are and can understand them. That is not the job of the practitioner. That is the job of the data controller, because the liability rests, in data protection terms, with the data controller—the local authority, private sector school or organisational entity.

It is for the controller rather than the practitioner to work those matters out. The controller has a duty of care to ensure that the practitioner has the confidence and support to make those decisions. I could not agree more with the idea of a flow chart. The information commissioner has said that practitioners need to be able to work through the process. If there is a standard process, matters are being dealt with fairly. Every decision has to be subjective, by its nature. As long as the practitioner has a process that they have worked through, the decision has been made fairly and appropriately.

Gillian Martin

I want to come back to Tavish Scott’s line of questioning to clarify some points.

Dr Macdonald, I understand that the GDPR is European legislation, and that the aspects in the GDPR that will affect the Children and Young People (Information Sharing) (Scotland) Bill will not be affected by any decisions or amendments by the UK Government in relation to the Data Protection Bill. Is that what you are saying?

Dr Macdonald

We cannot guarantee what changes there will be in relation to the various derogations to the UK Government. As it stands, we are satisfied that any changes introduced through the Data Protection Bill would not affect the Children and Young People (Information Sharing) (Scotland) Bill.

Gillian Martin

The Law Society gave the opinion that we should suspend our bill until we find out what is happening at the UK level. I disagree with that and do not think that we should do that, but from what you have told us, there is no point in our hanging back because the GDPR is the top line and everything that we are doing here is compliant with the GDPR.

Dr Macdonald

Not quite. The GDPR is there, but the Data Protection Bill has a number of exemptions that might impact on data sharing and we do not know how it will change in the interim.

In respect of what the Law Society was saying, there is an argument that you should wait until there is absolute certainty. However, we have degrees of absolute certainty—if you can have degrees of absolute certainty. We know where the GDPR applies and the code of practice could certainly have been drafted to be much more GDPR-compliant than it is at present. That would have been helpful.

Gillian Martin

The code of practice is where the flexibility can come in to take account of anything that happens at the UK level.

Dr Macdonald

We are satisfied that the Children and Young People (Information Sharing) (Scotland) Bill will not be affected by Westminster’s Data Protection Bill. However, the code of practice, which is of course integral to the implementation of the Children and Young People (Information Sharing) (Scotland) Bill, might well be.

Gillian Martin

I am concerned about the Children and Young People (Information Sharing) (Scotland) Bill itself. Thank you for clarifying.

Daniel Johnson

I go back to Maureen Falconer’s comments about the grey area. Will the SHANARRI indicators be adequate criteria by which to assess that grey area? Could or should the bill have done more to establish those wellbeing criteria and make the assessment clearer for practitioners?

Maureen Falconer

I am not deliberately copping out, but I do not think that I can comment on that.

Daniel Johnson

Fair enough.

I have some questions on the GDPR and its impact, specifically around consent. Although I accept that the bill might be GDPR-compliant in your eyes, the GDPR will have an impact on how practitioners use the bill, specifically around consent. Is that a fair assessment? What kind of additional requirements around consent, especially considering imbalance, might the GDPR impose on practitioners carrying out these duties?

Dr Macdonald

The big issue on consent under the GDPR is pretty much the inability for public authorities to be using it where there is an imbalance of power. In the higher-level wellbeing type issues, where the child is moving towards the vulnerable stage, it becomes less likely that consent could be used as the condition on which to process. There can be the other conditions, like those that Maureen Falconer mentioned, such as there being a legal duty or being in the public task, and we might have to look more at that in the code of practice.

The fundamental difference between the two data protection regimes—the current one and what is coming down the line in May next year—is accountability and governance. Whereas data controllers are currently required to comply with the Data Protection Act 1998, come May 2018 they will be required to evidence that compliance. If an information-sharing complaint found its way to us, as the regulator, we would be looking for that evidence. It would be a case of showing us their workings. What was the decision-making process that led them to decide to share that information? We would look at it on a case-by-case basis; the whole duty to consider is on a case-by-case basis anyway.

Johann Lamont

The GDPR is attempting to force public authorities, as creatures of statute, to rely on their statutory responsibilities. You will find that the GDPR talks a lot about public authorities and their public task. There is a job of work for public authorities to do in working out exactly what their public task is. There has been a lack of understanding in relation to the conditions for processing that allow people to use personal information, so consent has often been the default position. However, that has often been meaningless, because individuals have not had a real choice over consent. If people who have been told that someone is going to ask for their consent say that they do not want to give it, it is disingenuous for them then to be told, “Oh, well, I’m sorry, but we’re going to do it anyway.”

Oliver Mundell

I am thinking of a situation in which an individual named person—in the event that this all goes ahead—is recording and taking evidenced decisions. If they are not compliant with the processes that an organisation has put in place to safeguard their checks, would that individual be responsible for not following data practices, in relation to data protection legislation? Is that how it is seen?

11:45

Maureen Falconer

Not necessarily. Under data protection legislation, liability and responsibility always rest with the data controller, unless an individual does something knowingly, recklessly and wilfully against the normal process and is doing things that they should not be doing. That is what we call a section 55 offence. However, if I do something wrong because I have not followed the process—if I have made a mistake or something—the liability for data protection rests with the organisation and the data controller. That does not mean that the data controller will not then discipline the individual, which happens.

If you look at the actions that we have taken, which you can see on our website, you will see that, although the data controller might bear the wrath of the ICO, the case might involve something that an individual, not the data controller, has done. The problem might have arisen because of a lack of training or because of a lack of good technical patches or processes but, ultimately, it is the data controller who has the liability.

Oliver Mundell

That is really helpful, thank you. I am sorry that I did not do a good job of explaining what I was looking for.

Clare Haughey

For clarity, I would just like to make a point. If I, as a nurse, breached confidentiality deliberately, I would be liable, not the data controller, because I had wilfully done something. Employment law still applies, and employees can still be disciplined for doing something that is wrong.

I fundamentally agree with the approach. Glasgow Kelvin College takes a GIRFEC approach and we record young people’s success using the SHANARRI indicators—safe, healthy, achieving, nurtured, active, respected, responsible and included. We fully and whole-heartedly embrace that. There are case studies of young people who have had multiple agencies in their lives while at college, about whom we have shared appropriate information, and who have gone on to thrive, succeed and articulate well.

Megan Farr

We support the getting it right for every child approach and we support the named person scheme, which will make a significant contribution to the realisation of children’s rights. It gives children, young people and their families a single point of contact to access services, which is an improvement on situations that occur at the moment. We supported the named person scheme in the joint letter from children’s organisations that was sent to the Government in June 2016, but we raised concerns during the passage of the Children and Young People (Scotland) Act 2014 about information sharing and the potential for lowering information-sharing thresholds, so we supported the arguments that Clan Childlaw made in relation to information sharing and concern for children’s privacy.

Judith Tait

The Care Inspectorate certainly welcomes the policy intention of the bill. We support the general principles to support practitioners in clarifying their understanding of the right point at which information should be shared, below the child protection threshold. We also welcome the recognition of the importance of professional judgment in making those decisions.

We would consider scrutiny in the context of our having come a long way, to the current position in which partner agencies have ownership of the need to protect and promote children’s wellbeing, and in which the agencies recognise their roles in that. We would not wish momentum to be lost, because that work has come far.

When we are out inspecting, we would be able to identify the levers for promoting positive early intervention, as well as some of the barriers to that.

Detective Chief Inspector Conway

Likewise, Police Scotland fully supports the getting it right for every child approach and the named person service. The bill is an opportunity to bring a bit more consistency to practice throughout the country. We have done a lot of internal work on our standards of information management by taking the rights of the child as part of the assessment process, and in justifying and recording a rationale for sharing information, no matter the agency. What we have just now around the country is a bit of a patchwork quilt with regard to where information goes, so there is a huge opportunity for us to go back to the Christie commission approach in terms of delivering on the prevention agenda, and to get much better at picking up on early warning signs.

Ross Greer (West Scotland) (Green)

I am particularly interested in how this will affect Police Scotland, given its relatively unique position. One of the objectives of the named person service is improved consistency on information sharing. Police Scotland is a national force, so what is your officers’ experience of consistency across the local authorities when it comes to your relationship with social work and schools?

Detective Chief Inspector Conway

That has been a challenge. In-house, we have been able to drive consistent practice on how we manage, assess and share information. That means not sharing all information—we have really tightened up on what is shared and with whom it is shared. The Supreme Court judgment created a fair bit of uncertainty with regard to what could happen, so there were differing interpretations among local partnerships of what it meant for them, and there was a bit of push and pull with the local partnerships about their expectations of when we would and would not share information. We have managed to work through a lot of that.

Surely, however, once you know those details it would be practical and sensible to make a recommendation about how much money is required for you to do your job properly. That is the implication of what has already been said to the Finance and Constitution Committee.

Detective Chief Inspector Conway

That is a fair point.

Liz Smith

Okay. Thank you.

Gillian Martin (Aberdeenshire East) (SNP)

I want to pick up on something that DCI Conway just said. You said that you

“will be involved in redrafting the code of practice.”

That gives me an opportunity to ask what you feel, from speaking to the people in your organisation, should be in the code of practice and how it should look.

Detective Chief Inspector Conway

In our written submission, we express some concerns about the heavy weighting towards consent. I know that there are strong views about that. I caveat my comments by saying that I am not an expert on information management and I am not a lawyer, but I have spent quite a lot of time over the past year and a half looking at standards of information management and at schedules 2 and 3 to the Data Protection Act 1998. We have made the point in relation to what is coming, with the GDPR and explicit consent, that we find it really difficult to see how, in an operational setting, explicit consent would be applied. We feel that in the current illustrative draft of the code of practice there is too much weight on consent, and that there is a legal basis for the police and partners to share information in other ways, which we do successfully just now.

It is important that we take a rights-based approach to children and young people, but if I have officers in a really challenging situation at 3 o’clock in the morning, they might find it difficult to achieve the standards for obtaining explicit consent. Officers will often not know what will happen after that when we join it all up in the chronology of the consent assessment process. How can we tell the people concerned where we are going to share their information if the officers do not know that?

The code of practice must be redrafted to give more clarity. There are dangers in going for an exclusively consent-based model, because it will cause real difficulties for the police and, probably, for other emergency services. That model will probably cause us to withhold information that otherwise could have been shared under the current law. I would like to work through that with the Government. I am comfortable that we can support the Government to redraft the code of practice to be more reflective of current law.

I am not dismissing children’s rights—part of our training will always be about seeking the views of children and young people. However, if we ask a child or young person in a house at 2 o’clock in the morning whether they consent to our sharing their information and they agree, but later, as part of the assessment, they say no, and then, at our assessment stage, we believe that we have a legal basis to share that information, there will be tension between what the child or young person said and our statutory duty.

We are comfortable about taking into account the views of the child or young person or of the parent or guardian, as part of the assessment process. However, there are some dangers in going for a practice model that could see child concerns being stockpiled and our not getting the right information to the right people at the right time. Those are the difficulties that we foresee from a police perspective.

As the ICO has indicated, public bodies will find it difficult to meet the standards that will be required for consent. We are not excluding consent, because there will be circumstances in which we will seek consent to share information. However, we will probably look for another legal basis on which to share the information, rather than relying exclusively on consent. That is what we need to work through in the code of practice.

Gillian Martin

That is really helpful. I wonder whether anyone else wants to come in on that aspect.

The Convener

Before anyone else answers, it would be helpful for Oliver Mundell to come in at this point.

Oliver Mundell (Dumfriesshire) (Con)

I hear what you say, DCI Conway, about consent and another sort of test. What do you think that test would look like? With regard to redrafting the illustrative code, do you have a suggestion for us for where that threshold would lie?

Detective Chief Inspector Conway

I do not want to become technical, but schedules 2 and 3 to the Data Protection Act 1998 have other conditions for processing information that still allow us to satisfy the law. Consent is only one of those conditions for processing. If we are looking for a practice model that is more consistent and focused on prevention, with a shift towards family support and away from crisis responses, we need to use the law in its current format. We would still be compliant with data protection and human rights and would tighten up on necessity, proportionality and justification, and would share only relevant information with the right people. There would not be a blanket sharing of information.

Through our statutory duties under the Police and Fire Reform (Scotland) Act 2012, our core purpose to improve the safety and wellbeing of people, places and communities, and some of the core functions of a police constable in preventing and detecting crime, we can look to share information and can justify the sharing of that information as acting in the best interests of a child. However, we can also look at the receiving organisation and assess whether it has a core function, role and responsibility to help that child or young person. Importantly, the current law allows us to do that. Isolated cases may have highlighted where we have got it wrong, but I like to think that training will address much of that. Nothing stands still; a lot is happening and there is continuous improvement across the board. The opportunity is there to act within the Data Protection Act 1998 and the Human Rights Act 1998 without going for the solely consent-based model.

Oliver Mundell

That reply is helpful and interesting. Paragraph 107 of the Supreme Court judgment talks about a “compelling justification” for sharing information. I understand your argument in the context of the police, but other people who might have to interact with the legislation may not have the background experience of a police constable. Do you accept that it will be difficult for them to figure out what “compelling justification” means in individual circumstances?

Detective Chief Inspector Conway

I take your point. My understanding is that the redrafted code of practice will be the high-level document that sets out the standards and that the intention is for each organisation to develop its practice guidance to sit under the code of practice. The guidance cannot be rigid; there has to be flexibility and I accept that there will be circumstances in a controlled environment where consent is the appropriate route. However, we cannot forget about the statutory duties of the police and others to share information. For example, there is a tension with the Children’s Hearings (Scotland) Act 2011 and our duty to share information with the Scottish Children’s Reporter Administration; we could be dealing with a child youth offender and have a statutory duty to share that information with the SCRA but, at the same time, have to ask for consent to share their information with the named person service. We are trying to make the process practical, so that the rights of children and young people will not be ignored but will be taken into consideration as part of our assessment process to see whether we can lawfully share information.

Megan Farr

DCI Conway has covered the situation of the police very well, but other service providers will also share information about children and young people. Information sharing should be based on consent in the vast majority of cases; sharing without consent should be exceptional. DCI Conway has given some examples; a child at 3 am is very unlikely to be able to give consent in that situation.

The majority of service providers deal day to day with children they know. The national health service, local authorities, schools and social workers should be able to provide environments in which there is a relationship with the child or young person and their family within which consent can be freely given and explicit consent can be obtained. The NHS does that routinely in respect of medical care, so the concept is not new.

Evidence was given to members at earlier committee sessions that there continues to be a lack of clarity in the code of practice and other guidance, and DCI Conway mentioned that there are different local authority practices and different interpretations. It is important that the code of practice and other guidance put consent at the heart and make clear that a children’s rights approach should be taken. Article 19 of the United Nations Convention on the Rights of the Child says that the state shall protect children and shall

“take all appropriate legislative, administrative, social and educational measures to protect the child from ... physical or mental violence, injury or abuse, neglect or negligent treatment”.

Will the information go to the person who needs it the most?

Detective Chief Inspector Conway

Yes.

Maggie Murphy

Johann Lamont

Policy on early intervention comes up against that.

My final question is on a theme that has come up in other evidence sessions. The duty that will apply might lead to defensive practice on the part of those who make decisions about information sharing. If someone has a duty to share, that is pretty straightforward; if they have a duty to consider whether to share, and there is some question about what evidence they must give to show that they have done so, people might, in certain circumstances, think that they should not pursue something, to be on the safe side. Is that a concern of anyone on the panel?

Megan Farr

That is a concern that we have, in that we have heard of cases in which child protection issues have not been shared.

We have also come across examples of people not sharing information with their line management. That is not information sharing in terms of data protection; it is how organisations operate. For example, it is normal practice for a classroom assistant to inform their line manager of a concern, so that is not “processing” under the data protection legislation.

Maggie Murphy

As I said, Colleges Scotland offers training on safeguarding and corporate parenting to front-line teaching staff, reception staff and support staff. We take a holistic approach to understanding the underlying principles of safeguarding and we encourage conversation and information sharing as much as possible. We try to ensure that staff get appropriate continuous professional development, so that they understand their roles, the legislation and the jurisdictions around that and can protect themselves and the young people who attend their college campuses. I think that the principals are pretty clear on that.

Johann Lamont

Is there a new approach as a consequence of the Supreme Court ruling? Has the ruling made practitioners more cautious than they would have been before?

Maggie Murphy

I think that if a good code of practice and good training are applied, that will not be the case.

Detective Chief Inspector Conway

Many years ago, we probably shared only at the child protection threshold, and we have been on a journey since then. After the ICO guidance in 2013, we started to think that we had good grounds for actively sharing wellbeing information about children.

Following the Supreme Court judgment, we have tightened up on individual rights and the information that has been shared, but I would not say that that has been defensive practice. I would say that we are balancing the rights of individuals with the need to act in children’s best interests. There should not be defensive practice but, from a police perspective, I am fairly comfortable that how we deal with information about children and young people has improved.

Judith Tait

I agree. We have come a long way in relation to partner agencies’ ownership and understanding of their responsibilities to look after and promote children’s wellbeing. From our scrutiny work, we know that, where wellbeing concerns have been acted on, for the majority of children safety has been improved further down the line. The decision to share information is a highly complex one for practitioners. They must take into account a whole set of variables, such as what they know about the child and the family, the child’s presentation, child development and the impact of adverse events on the child. A code of practice needs to support professional judgment in coming to the conclusion that data must be shared.

Although since the Supreme Court judgment there has potentially been a dip in the confidence of people who undertake the role of named person that they know what they should be doing—and I would not want any more momentum to be lost—I think that the commitment to get it right and share information at the right time and in the right circumstances is strongly held across the country.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Maggie Murphy

I do not think that the principles should change because of the new regulation regime. We should still operate from the same position on wellbeing.

Daniel Johnson (Edinburgh Southern) (Lab)

We are looking at information sharing on the basis of wellbeing. We have established that, under existing law, information sharing already takes place on the basis of welfare and, to some extent, wellbeing. I am interested in how the bill will change things. Judith Tait and Maggie Murphy, will you explain what information you currently share in relation to wellbeing and on what basis you share it? Will you bring that to life and maybe give some examples?

Judith Tait

Within the regulatory responsibilities, when we inspect care services for children, we will discuss how well the service is recognising the wellbeing needs of the children for whom it provides a service. If we believe that there are concerns for a child’s safety, we will direct the service to take action, but we may also refer directly if we believe that the threshold for child protection has been met. Where the concerns sit below that, our role will be to encourage the provider to take appropriate action and to share information with the named person service. We do not share information directly with the named person service ourselves.

Our concern was that there was no clarity in relation to concerns about wellbeing, to go back to that question. Our view is that such information should be shared on the basis of consent, which is in line with how getting it right for every child should work.

We would be concerned if parts 4 and 5 of the 2014 act continued to be delayed, because they are important and the named person service is an important way in which children’s rights will be realised in Scotland. However, it was not clear whether a threshold is being created that is lower than the child protection threshold, particularly if it is based on a risk of harm to wellbeing—indeed, at one point a phrase was used about the risk of being on a pathway to harm. I am not sure that the duty to consider adds anything, because it does not change the threshold; it merely says that practitioners need to think about whether an issue meets the threshold, and that should already be happening—it is good child protection practice in service delivery organisations, and practitioners are regularly trained in child protection and should be aware of what is likely to be a child protection concern. It might be that the child protection threshold needs to be adjusted, but our concern with the 2014 act was that there was potential for the threshold to be interpreted as being considerably lower.

Daniel Johnson

Finally on that, it strikes me that there are some key points of principle around information sharing that, frankly, are not in the bill but will be in the code of practice. Principally, they are to do with consent and the rights of the child. Should those be in the bill? Given the importance of the code of practice, should it have a greater level of scrutiny, rather than being—in essence—in the gift of ministers?

Megan Farr

It is really important that the code of practice receives scrutiny, to ensure that it can be understood by practitioners, older young people—not all children will be able to understand it—and families. In fact, it should be able to be understood by everyone, so I think that it needs scrutiny. The most important aspect of the bill will be putting a clear code of practice and clear guidance in the hands of practitioners who share information so that everyone has confidence that it is being shared appropriately.

Daniel Johnson

The other part of my question was about whether the issue of consent should be in the bill.

Megan Farr

In line with the Government’s commitment to taking a human rights-based approach, such an approach should be taken.

Clare Haughey (Rutherglen) (SNP)

Unfortunately, I have a question for DCI Conway—sorry, but we seem to be targeting you. You mentioned a concern hub. For those of us who are unaware, could you tell the committee what that is and how it functions?

Detective Chief Inspector Conway

Sorry, I should have explained that earlier. The vast majority of concerns that we deal with regarding members of the public are not protection threshold concerns but wellbeing concerns. There is a significant amount of information there that we need to understand better. When we moved to Police Scotland, we put in place concern hubs in every division. They have dedicated staff who are trained in standards of information management. However, it is not just all about information management; it is about picking up on the early warning signs.

We have a strong evidence base going back many years relating to cases in which repeat concerns came up regarding children and the police and our partners did not pick up on them. The hubs and the staff in them consider standards of information management, respecting individuals’ rights and balancing those with acting in the best interests of a child or adult, but they also look to deliver early intervention and prevention—actually, they are looking to deliver on getting it right for every child. The advantage of starting to record chronologies regarding children is that, instead of having the information in a lot of places so that it is not visible, we have it in one place, which helps us to make a better assessment of what services might best be used to provide support or to intervene. That is better than waiting until there is a crisis response or until protection thresholds are crossed, because traditionally that approach has gone wrong and it has been far too late.

It is about a focus on Christie, trying to bring a greater focus on early intervention and prevention, and a bit of information management and standards in relation to the Data Protection Act 1998.

There are 13 hubs in the 13 divisions across the country, and their daily role is to triage the information in the morning, research it, assess it and then take a decision on whether to share it. When they take that decision, they put a strong emphasis on recording the rationale so that there is an auditable record of why something went somewhere. That is a real tightening-up of practice compared with where we were previously.

11:00

Clare Haughey

Will the bill be advantageous for the concern hubs? Will it make things easier for Police Scotland in relation to information sharing and the ability to direct information to the correct person?

Detective Chief Inspector Conway

Yes. I do not think that it will have a significant impact on the daily operation of the hubs, but it will have an impact on where the information is routed to. The statutory named person service will be only a piece of the jigsaw. Not all our information regarding children will go to the named person service. We will be looking at other routes, and some of that will be done with consent, particularly when we consider the third sector organisations that have really strong services to support children.

Ruth Maguire (Cunninghame South) (SNP)

Good morning, panel, and thank you for being here. I want to ask about data protection. We have heard in your evidence this morning that information sharing is already going on and is working well for you, but we have heard previously in evidence that people are concerned about information sharing. I would like to know how much of the challenge—if there are challenges or concerns in your organisations—is about the GDPR rather than about the specifics of the bill. Obviously, the GDPR is on the horizon and has an implication.

Maggie Murphy

We are less concerned about the GDPR. We are comfortable with the various documents and the information that we have in the college environment, and we are also comfortable that we share the right information at the right time with the right people. The focus in the Children and Young People (Information Sharing) (Scotland) Bill is on a learner-centred approach—the young person being at the centre. The GDPR will be a little later for us, but I do not think that it is seen in any way as an impediment.

Detective Chief Inspector Conway

The GDPR is more of a concern to the police—the requirement in relation to explicit consent and how that will operate in practice, how we will inform people of their rights, how we will have an auditable record of the consent and how we are going to do that in really challenging circumstances. I am probably more concerned about the GDPR than I am about the bill.

Judith Tait

Oliver Mundell

Thank you.

The Convener

I thank the panel members for their time this morning and for answering all our questions.

I suspend the meeting for a moment or two to allow the witnesses to leave and the second panel to come in.

11:08 Meeting suspended.

11:12 On resuming—

The Convener

I welcome the witnesses for our second panel: Ben Farrugia, head of development and innovation at the centre for excellence for looked after children in Scotland; Donna McEwan, practice development adviser at the centre for youth and criminal justice; and Teresa Medhurst, director of strategy and innovation at the Scottish Prison Service. Thank you all for attending. You should indicate to me if you would like to respond to a question and I will call you to speak.

I will start things off. How would you expect to be involved in the development of the final code of practice? Would you expect there to be any substantive differences between the code that is issued under part 4, on the named person, and the code that is issued under part 5, on the child’s plan, of the Children and Young People (Scotland) Act 2014? Could the same document cover both requirements?

Ben Farrugia (Centre for Excellence for Looked After Children in Scotland)

Good morning and thank you for inviting us here today. On the first question, we are a Scottish Government-funded part of the University of Strathclyde. We were set up to support the Scottish Government in the realisation of its objectives on looked-after children and child protection and to support our partners across the sector in their own efforts. In that respect, we would expect to contribute to the work that the Scottish Government is about to undertake on the code of practice and revisions to statutory guidance on parts 4, 5 and 18 of the 2014 act.

Our organisation works across the multi-agency partnership that works with children. We have a valuable perspective on what information sharing and practice to support children more generally looks like in a multi-agency context. We also cover the whole country, which, to pick up on what members of the previous panel said, brings an important perspective on the patchwork element that we see across the country. We can bring that information to bear in the next stages of the code of practice revision.

The Convener

We can talk about the first aspect of my question and then go back to the second part.

11:15

Donna McEwan (Centre for Youth and Criminal Justice)

Please excuse me—I have a bit of a sore throat, so I apologise if I am not speaking clearly. The CYCJ is similar to CELCIS in that we are a Scottish Government-funded agency. We support practitioners and promote development in supporting children and young people who are involved in offending behaviour, and their families, across the country.

In particular, we provide support and promote the development of practice and understanding when new legislation comes in. We hear from practitioners on the ground and take that information back, along with people’s lived experience. We look at the legislation and support practitioners to translate it into practice.

I met the Scottish Government last week to discuss the bill and the proposed code of practice. The Government is keen for us to be involved, to provide support and to use our links with practitioners and people’s lived experience to inform the code of practice as it moves forward. That is crucial in enabling us to undertake our role in supporting the application and development of GIRFEC across the country.

Teresa Medhurst (Scottish Prison Service)

I think that the first panel gave a good answer. There is a core understanding but, as has been hinted, there is divergence at the edges, when we get into the detail of what wellbeing might look like in respect of some indicators. It has been implied that the introduction of wellbeing has created confusion about when to share information, but the experience of our work is that that confusion has always been there. The introduction of wellbeing has given us a different narrative on that, but professionals have always wrestled with such questions.

Through some of our work, we have encouraged professionals to see the introduction of “wellbeing” as a way of widening our lens when it comes to how we view children rather than as a lowering of standards or something that is separate from welfare. We want professionals, instead of concentrating in their work with a child on a narrow bit of a child’s life in school or in relation to health, to broaden out their consideration and to think about the wider context of the child, which is what the SHANARRI indicators encourage people to do. When we talk about planning and assessment, that has implications for the child’s plan in a more real sense.

It is easy—it is understandable that this happens—to get caught up in conversations about welfare and wellbeing and different professionals’ understanding of those concepts, but we are talking about a broad approach that involves enabling professionals to have a more holistic understanding of children rather than the introduction of a specific new category of need.

Donna McEwan

I agree with what Ben Farrugia said—it makes sense to me. We want a holistic response and recognition that children exist within their circle of friends, their peer groups, their school, their home life and their community. We need to think about what wellbeing means for each individual child.

As professionals, under the SHANARRI principles, we are all responsible for the wellbeing and the safety and protection of our children. There is common ground when it comes to the understanding of wellbeing, so we are talking about widening that out around the edges and recognising the various professionalisms that might have something more to bring. Those in health services might have more to add than I would as a social worker and we need to recognise those skills and that knowledge, too.

Clare Haughey

I suppose that I am speaking from my professional point of view, but does the panel agree that SHANARRI and GIRFEC have given professionals and others a common language to speak when we are dealing with wellbeing and child protection issues? You are all nodding.

Teresa Medhurst

For the SPS, which is mainly a custodial organisation, SHANARRI gives much more clarity to the staff who deal with young people, and it provides a common language to use in case conferences and when talking to other professionals who come to work in Polmont. It is not only that the language is shared, but the understanding has been increasing. It has definitely been an improvement for us.

Ben Farrugia

I will go back to an earlier point about the code of practice. Since we submitted our evidence to the committee, I have been advised on and have learned more about the limitations on a code of practice—on how much it can include—because of its status in law. I do not want to contradict my colleagues—I totally agree with their points about what needs to be available to practitioners—but I understand that there are limitations on what can be in the code of practice, which means that the guidance that accompanies it becomes particularly important.

That is an opportunity, because there is much more flexibility with guidance—statutory or not—than I understand there can be in the code of practice. Our expectations are now perhaps less about seeing lots of changes being introduced to the code of practice, but what sits with it and what is available to practitioners will become even more important.

Johann Lamont

That is not necessarily the evidence that we have heard from others, who feel that the legislation will stand or fall by the code of practice’s ability to give confidence to practitioners and those whose information may be shared that the approach will be in line with the Supreme Court judgment. You spoke about there being different chapters, but I am not sure whether you think that that is in line with what is expected from the legislation. Basically, if you are saying that there will be chapters, you are just collating different codes of practice in one place.

Ben Farrugia

I am sorry—I think that we do need some distinction in the code of practice between parts 4 and 5 of the 2014 act, and that is what I was acknowledging in talking about distinguishing those and having separate pages. In my previous point, I was picking up on my colleague Donna McEwan’s point about the need for things such as practice examples, case study work and everything else. My understanding is that it would not be the easiest thing to incorporate that into what is quite a legal document, in which quite restrictive language might be used.

We definitely need a code of practice that is clear and accessible to professionals, but that will have to be supplemented by further documentation and work. Documentation and training alone will not move us to the culture of information sharing that we want in Scotland. Those things are essential, but they are not sufficient on their own.

We need to attend to structures of supervision in real time—who can professionals turn to for advice and guidance about complex cases? There are established processes in social work and health, and such things happen in some of our best schools, too. We must learn from those processes and ensure that they are available to all professionals in the relevant areas.

The Convener

The cabinet secretary will be here on 8 November, when I am sure that we will get clarification about the code of practice—not exactly what will be in it, but the sort of code of practice it will be and the guidance that will go with it.

Johann Lamont

You might have heard me put the next question to the earlier panel—it concerns the issue, which we raised in previous evidence sessions, of whether the situation might lead to more defensive practice. Is that the danger of the changes? Rather than people being more confident about sharing information, they might be more hesitant and anxious about how to meet the duty to consider sharing information. Do you think that that might be the case? Will gathering the evidence that they will need to show that they have considered whether to share information be an extra burden on people who work in this area?

Donna McEwan

In my previous practice as a social worker, I was involved in early and effective intervention, which is part of the Scottish Government’s whole-system approach to supporting young people and children who are at risk or are involved in offending. Early and effective intervention is for children from the age of eight to the day before their 18th birthday who are involved in low-level offences.

In relation to—I am sorry; I have lost my train of thought.

The Convener

We have all done that.

11:30

Donna McEwan

It is because I have a cold.

Johann Lamont’s question was about defensive practice. Following the Supreme Court judgment, there were examples of people withdrawing from sharing information because they were anxious, concerned and unsure about the situation. However, that has now been redressed, because we have had an opportunity to look at our practice and make sure that we are sharing information in a proportionate and appropriate way that meets children’s needs.

There is a concern that there might be defensive practice and that people might pull back from sharing, but it is really important that we get this right and that we share the right information, so that children and their families, when they choose to engage with named person services, can get the right support at the right time to reduce the risk of situations escalating. Having a clear code of practice, with additional guidance, would support practitioners and children and their families in understanding what the situation is with sharing information.

Teresa Medhurst

I agree. We are moving towards a more rights-based approach but, in all our decision making, we look at proportionality and, especially in our work with 16 and 17-year-olds, we are aware of the requirement to work with the young person and their family and the lead professional, as well as to ensure the individual’s safety. Given that such work is a small proportion of what we do, we will need to give our staff appropriate support and guidance. I do not see that the bill will lead to more defensive practice in decision making.

The Convener

Daniel Johnson and Ruth Maguire have questions, but they can ask them later on.

Colin Beattie

I want to ask about the child’s plan. Children and young people who are involved in the criminal justice system and looked-after children and young people might need targeted interventions, from which a child’s plan could well evolve. To what extent is information on wellbeing shared in existing multi-agency practice?

Ben Farrugia

If we conceive of wellbeing information as being information on different components of a child’s life, such as their education, their health and aspects of their home life, such information is core to the child’s plan. There has been a statutory obligation to provide a child’s plan for looked-after children since 2009—and, indeed, prior to that in different forms. For us in the looked-after-child world, the introduction of a child’s plan in part 5 of the 2014 act consolidates what should already be there.

A good plan talks to as many different components as possible of information that we conceive of as wellbeing information in giving a holistic assessment of the child.

Colin Beattie

I refer to parts 4 and 5 of the 2014 act. In part 5, which is on the child’s plan, there is a duty to share information in relation to the child’s plan, but in part 4, which is on the named person service, the duty is to consider sharing information. How will that work?

Ben Farrugia

I will have the first go at answering that, but my colleagues might have different views. My area of expertise is looked-after children, where there is a child’s plan already. Organisations that are under a statutory obligation to provide a range of services and support for such children have to share information in that context in order to undertake their functions. That is one of the permitted areas in which public organisations can store and process information. We are comfortable with the duty to share information in relation to the child’s plan, because it reflects current practice and current statutory obligations.

The duty in part 4 to consider sharing information seems appropriate to us. That reflects the contribution that we gave to the committee back in 2014 when the Children and Young People (Scotland) Bill was being considered, and our concern that a duty to share for named persons would put at risk what you heard about earlier from the witnesses who eloquently discussed children’s rights to privacy and so forth.

We believe that the duty to consider sharing information adds emphasis by requiring professionals to think about whether they should talk to other professionals about something—it is probably more appropriate, in the first instance, for them to think about talking to other professionals in their organisation, which is not information sharing as defined by law, and then with the family as well.

Colin Beattie

Do other witnesses have comments on that?

Teresa Medhurst

The position at the moment is that the child’s plan will be shared when somebody comes into custody if they are a looked-after child or if a child’s plan exists, and the criminal justice social work report will be shared with us as well. There already exists a case conferencing system that allows that sharing of information, and our positive future plan, which supports the individual’s journey through custody, is also based on the SHANARRI principles, so it is about wellbeing. The information that is shared around the child’s plan during the period in custody is very much focused on wellbeing and supporting the individual.

In relation to the named person, as I said earlier, we will require to support our staff—our named person will be at senior management level—to work through the decision-making process and ensure that they are making appropriate decisions based on proportionality and the rights of the child. However, our work is based on positive engagement and we will absolutely work to get consent from the individual.

Colin Beattie

Will the changes that are coming down the line from Westminster with the GDPR and so on impact on the sharing of the child’s plan?

Donna McEwan

I will be perfectly honest. I have not explored the GDPR at this point, as I have been focusing on the Children and Young People (Scotland) Act 2014 and the bill. I would have to go away and look at the GDPR and consider it further.

Ben Farrugia

At CELCIS, we welcome the added obligations under the GDPR. It is going to require more process and policy in a number of organisations. You have heard from the police and other organisations that they are going to have to think through what it means for them and maybe increase what they do or change the way they do things. Given that we are talking about sensitive personal information, that is entirely appropriate.

The GDPR builds on what the Data Protection Act 1998 laid out for the United Kingdom. Our focus at CELCIS is on supporting our organisations to introduce the necessary mechanisms to meet the GDPR requirements in a proportionate way.

Donna McEwan

Sorry—may I come back in? I have heard about the GDPR this morning and while listening to previous committee meetings, and the notion of consent—and, within that, explicit consent—is important. Particularly when we are talking about lower-level concerns that do not require statutory intervention, that consent, the child’s voice, their rights and the family’s rights are absolutely crucial. If the GDPR is taking that forward, that is a positive step and one that is absolutely in line with the intentions of GIRFEC.

Johann Lamont

In a scenario in which a young person is being picked up by the police because of low-level stuff and there is a bit of concern about them, the proposed approach would prevent the police from speaking to guidance staff and saying, “There may be an issue here. Can we bring the family in?” How does consent apply when the police are just seeing a bit of that behaviour and early intervention could be helpful, with the police working with the housing department or the school to speak to the family? You have said that consent would be required in that situation.

I suppose that what I am wrestling with is this: I get the need to protect young people and not to share information inappropriately, but I wonder whether what is proposed would inhibit low-level early intervention, whereby people can say, “There are signs of stuff coming up here. Maybe we need to speak to somebody.”

Donna McEwan

I recognise that concern, but a balance has to be struck. After all, we have to recognise that parents, too, have a role to play and a responsibility to support their children. If a child has been involved or had contact with the police, we would expect the police, in the first instance, to speak to the parent, carer or guardian to ensure that they take appropriate action to support their child.

It is then subject to parliamentary approval.

Ben Farrugia

Okay—so it is just for your comment and feedback.

It is important that the code gets proper scrutiny, but I do not have a firm view about whether it needs to be scrutinised at the same level of detail as the bill. A range of organisations are already engaging actively with the Scottish Government, through the bill process and other processes, to try to ensure that the code that the Scottish Government publishes is robust. Over the past four years, we have seen that a range of organisations take information sharing extremely seriously and are willing to go to the furthest lengths possible to ensure that children’s rights and families’ rights are maintained. I am working on the basis that that scrutiny will continue to be applied to the next stages.

Ruth Maguire

Good morning. Thank you for coming. I appreciate the evidence that you have given so far. It is always a bit challenging coming in at the end, because we have covered so much ground.

Ben Farrugia mentioned a culture of information sharing. I think that we all agree that effective and proportionate information sharing is important in improving outcomes for our young people and children. What further progress do we have to make in that regard? The crucial question is, how do we best create confidence among practitioners to enable them to share information better in order to improve outcomes for looked-after children and young people in the criminal justice system?

Donna McEwan

Looked-after and accommodated children are not my area of expertise; Ben Farrugia will be able to answer that specific question.

In the main, information sharing in respect of young people who are already involved in the criminal justice system is good. If a child has appeared in court and been found guilty and a criminal justice social work report has been requested or a referral to the Scottish Children’s Reporter Administration has been made or a children’s hearing has been convened on offence grounds, there are duties on practitioners to share information. In those situations, as has been said, information sharing is good.

Again, it comes down to relationships with individuals. Practitioners need to be clear about the information that is to be shared and with whom it will be shared. As far as possible, they must get the person’s consent and ensure that they understand fully who will know what as well as what people are not going to know, which is also important.

At the statutory level, practitioners are quite confident. It is in non-statutory situations, where there is no duty to share information, that there is an issue. We should give clear case examples, because we know from speaking to practitioners that they value such examples. We should not give them a tick-box exercise—instead, we should present different ideas so that they can identify where their own practice sits. We need to be clear about the role and importance of explicit consent in sharing information at the non-statutory, non-duty level of information sharing.

Teresa Medhurst

For us, a good structure is already in place. However, we need more clarity around pathways and a consistency of approach, which can only lend confidence to young people not only when they engage with the child’s plan but while they are in custody.

Ben Farrugia

I am smiling because that is what we do at CELCIS day to day. We try to support organisations to move to the new culture or to sustain the great culture that they already have.

What I took from Ruth Maguire’s question is, what more do we need to do to learn from those places that are sharing information well? In our experience, the areas that do it well—whether they are geographical or organisational—are those that attend to different aspects. They look at structure. Are they structured well and do they have in place proper processes for supervision of and support for professionals in relation to information sharing and a wider range of practice? Do they have good systems for data storage and recording to meet their requirements, which will now be enhanced under the new European Union directives? Do they concentrate on ensuring that their professionals can build positive relationships with families and children, as has been mentioned? I think that that would be true of the adult sector, too.

A lot of the questions that we are rightly discussing fade away where there is good trust, where there are good relationships between professionals, and where families and children understand that information is being stored and shared for their benefit rather than simply for the benefit of services. If we can create systems in each of our sectors—education, social work and health—that operate on that model, we will go a long way towards moving through some of the concerns.

The Convener

That is the end of the question session. I thank the panel members for their time this morning and for answering all our questions. That concludes the public part of the meeting.

11:54 Meeting continued in private until 12:07.

25 October 2017

Sixth meeting transcript

The Convener (James Dornan)

Good morning and welcome to the 27th meeting in 2017 of the Education and Skills Committee. I remind everyone to turn their mobile phones and other such devices to silent for the duration of the meeting.

Our first item is two panels of evidence on the Children and Young People (Information Sharing) (Scotland) Bill. This is the second-last evidence-taking session on the bill. Next week, we will hear from the Deputy First Minister and Cabinet Secretary for Education and Skills.

I welcome to today’s meeting Sally-Ann Kelly, chief executive of Aberlour Child Care Trust; Sheila Gordon, director of children and family services, Crossreach; and Maggie Mellon, from the no to named persons campaign. All discussions take place through the convener, so if you would like to respond to any question please indicate to me and I will call you to speak. I remind members that supplementary questions should lead on from the question that is being pursued.

Gillian Martin (Aberdeenshire East) (SNP)

I would like to ask about the code of practice, and my question is really for Aberlour and Crossreach, who would use such a code. We are giving everyone who might use the legislation, in whatever form it eventually takes, the opportunity to tell us what you are looking for in the code of practice.

Sally-Ann Kelly (Aberlour Child Care Trust)

Although I am the chief executive of Aberlour Child Care Trust, I am also here representing a coalition of seven charities that produced written evidence for the committee. As we state in our written submission, our view on the code of practice is that, in its current state, the wording is overly complex and legalistic. The committee has heard the same thing from other witnesses.

Given the complexities of some of the considerations around information sharing, which we acknowledge, if there is a requirement for a code of practice, it is important that we are clear about who the code of practice is for, what its purpose is and therefore how it should read. Our view is that it should be supported by statutory guidance and should not stand alone. That statutory guidance should be fully conversant with the law, but should also be produced and presented to practitioners in its fullest form so that they can exercise their professional judgment in a sound way.

Maggie Mellon (No to Named Persons Campaign)

I agree with Sally-Ann Kelly that any code of practice should be on a statutory footing. The definition of wellbeing must be crystal clear. One of the key points in the Supreme Court ruling was that there was no definition of wellbeing and that the eight SHANARRI indicators—safe, healthy, achieving, nurtured, active, respected, responsible and included—are very vague and subjective. The Faculty of Advocates pointed to the need for any code of practice or guidance to be part of the legislation. Given the history of the legislation, it is important that what is voted on is crystal clear and compliant with the law.

This stack of paper that I am holding up is the legislation that any code of practice or guidance would need to cover—it is what any practitioner would need to refer to in making their judgment. When you ask that question, you are opening up a huge subject and a significant area of concern.

Sheila Gordon (Crossreach)

I agree with Sally-Ann Kelly’s comments about the need for statutory guidance to sit alongside the code of practice. That would be very helpful. It can be really challenging for people in the third sector to make decisions when they are slightly removed from other services—universal services usually operate in quite an integrated and joined-up framework. It is therefore of more importance that we have very clear guidance.

The code of practice must be rights led from the start. I feel that there is a gap in the way in which rights are reflected, by which I mean the rights of the child as well as the rights of the family. Addressing that would also be beneficial.

Gillian Martin

This is a forum in which you can feed into what the code of practice might be, but are you going to engage with the Government on what you see the code of practice looking like?

Sally-Ann Kelly

It is my understanding that we will be engaged in that process. We have had on-going dialogue with the bill team and the Government in relation to how the bill will be taken forward, and we have been given assurances that we will be involved in that.

Gillian Martin

Is it the same for you, Ms Gordon?

The Convener

Can we just stick to the point? When you are asked a question, can you try to stick to the point of the question, please?

Maggie Mellon

I apologise.

Clare Haughey (Rutherglen) (SNP)

On the back of that, I have a question for Sally-Ann Kelly and Sheila Gordon. Given the organisations that you represent, do you recognise compulsory interference as being part of the named person service? I come from a nursing background and have worked closely with child and family social workers, and that is certainly not my understanding of the named person service.

Sally-Ann Kelly

We need to just calmly return to the first principles of part 4 of the 2014 act. Part 4 is about early intervention and supporting families early enough at the time that they need it. For the vast majority of families, that happens on an informed consent basis. Part 4 of the act is about looking at situations where there may not be informed consent for a variety of reasons.

Potentially, it offers the opportunity to share the information in a much clearer context in the early intervention stage compared with what happened previously. There is no dispute in our organisations’ minds about the thresholds around significant harm and welfare concerns.

Child protection practice should not change as a result of the bill. It is for early intervention. I would not use the term “compulsory interference” when talking about the named person service, because we work with families primarily on the basis of informed consent and only in very few circumstances do we have to go beyond that. If there is not explicit consent from the parent, the named person, and those referring information to the named person, would need to use their professional judgment in considering whether there is good enough reason to do that.

10:15

Sheila Gordon

I agree with that in principle, but there is still a challenge. Although we fully understand the wellbeing indicators, which are now used widely in practice, the issue is cases in which there are concerns for the wellbeing that are not necessarily safety or child protection concerns. For workers, particularly in the third sector, understanding that threshold is the biggest challenge. It is not an easy problem to solve. There is not quite enough clarity on that. There is a duty to consider wellbeing, but where is the framework that the person would operate in for that? It would be helpful if that framework was teased out in more detail.

The Convener

Would that be in the statutory guidance?

Sheila Gordon

Possibly, yes.

Liz Smith (Mid Scotland and Fife) (Con)

The committee faces a considerable dilemma, irrespective of our views on the named person policy. Many of the witnesses, several of whom support the policy in principle, feel, just as you have intimated, very uncomfortable with the code of practice, although it is only illustrative. They feel that it does not give them sufficient confidence and legal backing. That is set against the fact that the Deputy First Minister said strongly to the Delegated Powers and Law Reform Committee:

“The code of practice will be obligatory and binding on any individual who exercises the responsibilities.”—[Official Report, Delegated Powers and Law Reform Committee, 19 September 2017; c 4.]

In other words, as several witnesses told us, the code of practice is crucial when it comes to people recognising their responsibilities.

On the origins of the named person provision, I accept that that came from failures to share information adequately that resulted in specific issues relating to serious harm to children, which is regrettable, but what we are discussing now is about early intervention.

I will also say that one of the things that we need to accept as a country, if we are truly committed to giving the earliest help to families, is that we need a cultural shift in how services intervene or work alongside families to ensure that they feel confident about seeking that early help. As Maggie Mellon said, we need to be clear about the purpose of information sharing. If information sharing in the early-intervention context is about trying to get extra support to families, that extra support needs to be available locally. One of the things that our coalition is clear about is that there is no consistency of provision in the country; we need to think about that, if we are to pass legislation such as the bill. We are not separating the issues out. What I am trying to do is be clear that that part of the bill should not directly impact on people’s perceptions of when and whether they can share information in a child protection context, because that has not changed.

10:30

Maggie Mellon

I totally agree that there is some clarity around information sharing for child protection purposes. There have sometimes been problems when information that has been shared has not been acted on, but we should not make the mistake of saying that we must share information about absolutely everything and everybody.

Last week, we were told that there are 815,000 people on the vulnerable persons database. That makes us wonder how long it will be before there are fewer people not on a database than are on one. We have 815,000 people on that database because of people thinking that we must record information on people and put down something about their vulnerability or need. We also have more than a million people with criminal records. We are talking about a third of the population. That is needle-in-a-haystack territory if our concern is about children who might slip through the net and not be picked up and helped.

The committee needs to examine that concern about information sharing. It is not about a wish not to help people. As Sally-Ann Kelly said, it is necessary to have help available, and it should be available to parents and children across the country when they need it. However, that is not what is happening. What is happening is that records are being built up and people are sharing information, I think in quite a risk-averse way, without knowing what they can actually do to help.

Ms Mellon said that there is an issue about defensive practice, and the implication was that people would share a lot of information. We have heard a lot about defensive practice, but my reading of that was actually the opposite—that people would be ultra-cautious. My concern would be that things that people might share now will not be shared in the future. Do the other two panel members have a view on that?

I think that the fear that is being expressed to the committee is that something that was well-intentioned might in practice make things worse. We really need to be reassured about this, because we might now be in a position where even those who were most committed to the approach are ending up in a place where they will not be able to take it. There is clarity about a duty to share information, but a duty to consider whether to share information is slightly different. Do you have any comments to make on defensive practice?

Sally-Ann Kelly

One of our concerns is the uncertainty that has existed since the Supreme Court ruling. We have examples at Aberlour of people being unsure or unclear about whether they can share information. I am sure that other charities have such examples. There might well be concerns out there in relation to understanding when it is okay to share information.

The coalition has argued for comprehensive training because it is really important that that situation does not prevail and that children and families feel properly supported. In the circumstances, proper training and statutory guidance across the wellbeing framework would certainly help.

We have also argued for a nationwide campaign to clarify what the named person service is and what it is not and, within that, for clarity about the circumstances in which families can expect their information to be shared and what their rights are in relation to the named person service.

What adds to the confusion for practitioners is a wider confusion in the public about the status of the named person, what the scheme is and what it means for them. Many of our practitioners are parents, too, so there needs to be a clear statement and response from the Government to clarify that.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

The concept of wellbeing appears to be an important potential gateway to the sharing of information. Given the question of consent, how do you envisage information sharing working with United Kingdom and European data protection law, particularly in the light of the incoming general data protection regulation?

Maggie Mellon

Maggie Mellon

It is absolutely true that many families who approach services for help give their consent to receiving that help and to any sharing of information, but they might not realise the consequences of that. I gave the example earlier of a person talking to their health visitor, who might say “I’ll make inquiries about getting some financial help for you”, or whatever. However, has the person involved given informed consent to sharing of their information with a wide range of people? In a small community, that could mean that not only a teacher, for example, but everybody in the community might know information that might be very sensitive.

Confidentiality is the absolute guarantee of trust between professionals and the people whom we serve. People have to be sure about confidentiality, information not being shared without their knowledge or permission—which we know has happened—and informed consent, with the GDPR. People have been giving consent to share information without realising—neither have the practitioners—that it can last for years and years throughout a child’s life, to the extent that when they apply to do a nursing course or a care course, for example, there could be soft information about them that says that they behaved in an inappropriate way when they were eight, or that they were thought to have behaved in that way. At the moment, such information follows children through their lives.

We are in danger of creating huge databases that people do not know they are on, with information about them following them through their lives. That is what the GDPR and informed consent is meant to be about. We all need to take very seriously the question of what happens when we record information. Where does it go? Who owns it? Can it be removed? The problem is that if that information protection is breached, people do not have the money to go to court for redress. Once information is out there, we cannot have redress, because our privacy has been breached. We have to ensure that we do not do any harm through the intention of doing good.

Daniel Johnson

I want to follow up on something that Sally-Ann Kelly said. You said that in the majority of cases that you work on there is consent, and that it is about early intervention to ensure wellbeing. However, given the Data Protection Act 1998, is it ever possible to share information without consent on the basis of wellbeing alone if the child protection criteria have not been met?

Sally-Ann Kelly

Sharing information without some kind of consent would be complicated and difficult to do. On what Maggie Mellon just said, we need to give credit to the multitude of professionals in Scotland who already work with a level of complexity.

Maggie Mellon mentioned the situation in small communities; I have lived and worked in such communities. People who are employed by statutory authorities and the third sector broadly understand their responsibilities in relation to data protection. It would be unfair to suggest that there is a party of information sharing going on in communities, because that is simply not what I see in practice.

10:45

The Convener

We are about to hear from an existing practitioner.

Clare Haughey

Thank you, convener. I was about to make the very point that has just been made: professionals and third sector organisations are bound by professional guidelines on information sharing, and there is no huge database somewhere with everyone’s data on it. I am somewhat concerned that some of the information that we have heard this morning might make people concerned about approaching professionals and disclosing to them difficulties or problems that they have for fear that that information will be recorded and come back to haunt them in years to come.

Johann Lamont

I refer back to my earlier point. The challenge for us is to decide whether the bill addresses the problems that the Supreme Court identified and whether, in doing so, it makes it better or worse for delivering the policy intention. Are the problems fixable through the bill? Can the bill meet the original policy intention of the 2014 act, or is there another way to do that?

Maggie Mellon

The bill does not solve the problems that the Supreme Court identified. A bill that says that parents and children and young people should be able to approach services to get help and that services have a duty to help them would be more useful. The concept of the named person comes from mental health legislation; the patient says, “I want this person to represent and act for me and to have the information that psychiatrists and others have shared.” That is a completely different concept of a named person—the individual actively chooses the named person to act for them.

The problem that we need to address is whether the bill is about telling parents what is good for them and telling them to act in the way that we all think is good for them instead of listening to what they want. Families—children and parents—are not objects of concern; they are active in their own lives. They need to be the ones who decide to ask for the help that they want and they need to be listened to.

Johann Lamont

From your organisation’s point of view, the policy does not work, so whatever is done to fix the problems that the Supreme Court identified will not really satisfy you. That is an entirely legitimate position.

We were curious about that. In our submission, we ask—this was a genuine question—whether the bill meets the needs of the Supreme Court ruling. What we understand from further conversations with the bill team is that introducing the new obligation to consider sharing information is a step in the right direction. Our view is that we need to be clear even about that duty to consider. I have already talked about the need to be more specific about wellbeing, and training will help in that respect.

The issue is how we implement the named person scheme. We, too, are very supportive of it and the GIRFEC principles. None of that has changed, but we need to be confident and honest in our discussions with regard to getting the implementation right.

Johann Lamont

Do you accept that there might be unintended consequences that might mean our having to start again? This is what the committee is wrestling with. Are there any unintended consequences of moving to a duty to consider sharing information—and the requirement for people to provide evidence of how and what they had considered—given the legislation and the judgment that has to be made? Do those unintended consequences with regard to time, energy, resources and defensive practice outweigh or, indeed, overshadow the original principles of the legislation?

Sally-Ann Kelly

The coalition did not go far enough in making comments on that. If we go back to first principles on why the measure was introduced, my professional judgment is that there was not enough consistency throughout the country in the judgments that were being made about when and whether to share information. If we can come up with a piece of legislation that provides a framework for considering the circumstances in which information should be shared, and the legal framework for sharing it, we should do so because we need to have a consistent approach throughout the country. What we had historically—and, to an extent, what we still have—is inconsistency.

We also need to think not only about information sharing but about its purpose. To be frank, there is no point in sharing information if nothing positive is going to be done with it. We need the network of early intervention services to support families.

Johann Lamont

So having consistency is actually about support for families and the resources that are available rather than some theoretical argument about information sharing. It makes more of a material difference to families. After all, we all know that defensive practice happens.

Sally-Ann Kelly

The central principle is getting the right support to the child at the right time.

Ross Greer (West Scotland) (Green)

There has been a debate among people who support the principle of the named person scheme about the necessity for further legislation. Where would the lack of an information-sharing provision leave the scheme? To what extent can it function without the proposed duty to consider sharing information?

Sally-Ann Kelly

Earlier in my evidence, I alluded to the need for culture and practice shifts within the system. Such shifts will be required with or without an information-sharing component to the named person scheme, but an information-sharing component will provide an impetus to the cultural and practice shifts that we as a country need to make. I also hope that it will reorient our provision towards early intervention and prevention rather than crisis-driven services.

Maggie Mellon

On confidentiality and professional judgment, the problem with the named person provisions in the Children and Young People (Scotland) Act 2014 was that they told everybody to breach their duty of confidentiality and that they had to share information. Because it was a duty to share information and did not mention consent, it was not compliant with the Data Protection Act 1998. We now have a bill that tells people that they have a duty to share information but which puts the responsibility on practitioners to comply with a range of legislation. I can see that it gets the Government itself out of a potential problem, but it pushes the problem on to the people on the front line, and that is not helpful.

The issue is whether we go back to first principles and look at what families need. For years now, parents of children with special needs have been asking for someone in a public service to be appointed as their champion in order to help sort things out, but they have still do not have that. It might be useful to look at the named person provision in the mental health legislation, because it is voluntary and involves the parent asking someone they trust to get services co-ordinated and sorted out.

There has been no proper clarity in communicating the named person scheme to the public, and that is something that the Government needs to pay a lot of attention to following the committee’s deliberations about how these decisions should be taken forward. The Government needs to front that public information campaign.

Gillian Martin

Following on from that, do you agree that the media have a responsibility to make sure that they do not use hyperbole over this? That has affected public opinion.

Sally-Ann Kelly

I am sure that the media has responsibilities here. However, we need to accept that we have a free press and that it will give its own interpretations of stories. The most eloquent challenge would be a clear, concise and precise campaign from Government on what sections 4 and 5 of the Children and Young People (Scotland) Act 2014 are about, especially with regard to the named person.

Daniel Johnson

Clare Haughey

That brings us to the end of this evidence-taking session. I thank the witnesses very much for their attendance. We will suspend for a moment or two to allow the witnesses to leave before we move on to the second panel.

11:05 Meeting suspended.

11:09 On resuming—

The Convener

I welcome the witnesses for our second panel: Kirsten Hogg, head of policy for Barnardo’s Scotland; Alison Reid, principal solicitor at Clan Childlaw; Professor Nancy Loucks, the chief executive of Families Outside; and Eileen Prior, the chief executive of the Scottish Parent Teacher Council. I thank them for attending. As I mentioned to the first panel of witnesses, if a witness would like to respond to a question, they should indicate to me and I will call them to speak.

We will go straight to questions from members.

Daniel Johnson

I will address my question in the first instance to Alison Reid, but other witnesses may want to join in. The Clan Childlaw submission says that the bill

“does not permit any more information to be shared”.

I ask Ms Reid to clarify a point that I raised with the previous panel of witnesses: is it, or is it not, permissible to share information based on wellbeing without consent?

Alison Reid (Clan Childlaw)

The bill does not alter the circumstances in which information can lawfully be shared, so that comment is correct. Your question concerned the duty to consider sharing information. That duty does not change the threshold for sharing information. It is just about considering whether to share information rather than being about when you can share it.

I think that what we meant was that we are looking for consistent implementation of the named person approach and the information sharing aspect of it. The wellbeing criteria are subjective, and practitioners really value that. They value being able to use their professional judgment as they think about individual families and children and their different needs, so we are not looking for consistency in that regard, necessarily. We need a consistent approach, rather than consistent decisions.

Alison Reid

The difficulty is that the bill introduces a duty to consider sharing information based on wellbeing, which we think is disproportionate and unnecessary and will cause a number of difficulties.

As has been discussed, it causes difficulties because “wellbeing” is such a broad concept. Also, practitioners must already consider that in the context of child protection issues, and already do so, under their legal and professional duties. The Royal College of Nursing Scotland commented specifically on that. The RCN said that it is worried that the provisions will result in “defensive practice” and concluded that they are unnecessary.

We also think that the proposed approach causes confusion, because it creates another step in the decision-making process around wellbeing, as Daniel Johnson said, and that is not the threshold at which information is to be shared—that threshold is set in relation to data protection, human rights and confidentiality. That potentially leads us into more difficulties with being human-rights compliant.

The other issue is the purpose of the duty to consider, which is set out in the policy memorandum as being to encourage or prompt information sharing. In my view, legislation is not the way to encourage or prompt information sharing. That could well have unintended consequences, as I think that the committee’s earlier witnesses today pointed out.

We do not need further legislation. We have a legal framework within which the information sharing aspects of the bill could operate. What we do need is clear, robust and accessible national guidance that is not on a statutory footing. Such an approach would simplify all sorts of issues with which the committee has been grappling, because then there would be no need for a code of practice under new legislation.

The Convener

Ms Hogg said that what we are looking for is going on, but not consistently across the country. At the end of the day, is not the purpose of the bill to achieve consistency?

Kirsten Hogg

In our experience, there are areas in the country where the GIRFEC approach is well embedded and information sharing, with consent and in accordance with what is set out in the bill, is happening. However, although information sharing around child protection concerns and with social work is well embedded, what is newer in some areas of the country is the sharing of information among universal services for the purposes of early intervention. That is where we are looking for consistency.

Professor Loucks

Although I think that we have established that the concept of wellbeing needs to be clarified, we disagree that child protection is enough, in that there are issues that will have a dramatic impact on child wellbeing that are not necessarily child protection issues, such as the imprisonment of a parent.

I can understand everybody wanting a clear way forward, but legislating and putting a code of practice into the legal framework would be difficult. Janys Scott QC has talked about how difficult it would be to draft that code of practice; I think that she said that it would be extraordinarily difficult to draft it to make it human rights compliant. The problem is that the bill will make the legal framework more complex because all that it will do is add a layer to what we already have and try to introduce different concepts of wellbeing. It is complex law, but trying to restate it will not make it simpler; it will just make it more convoluted.

Liz Smith

Would you accept that, as Maggie Mellon said earlier, in order to do our best for the most vulnerable children, which is the most important aim, it would be better if there was a duty on institutions and local authorities to make provision, but not enforced in the way that the named person policy has evolved?

Alison Reid

I am not so sure about the whole named person policy. I have been concentrating much more on information sharing and how the bill will affect that. I can see the attraction of trying to put it in a code of practice and clarifying the law in that way, but we cannot really do that because we have to comply with data protection and human rights, so it does not help. I am also worried about imposing a duty to consider, because professionals are working under those legal and professional duties anyway and would carry that out.

I want to take you back to what the 2014 act was about. It was about providing support for families and not about information sharing. The purpose was to ensure that vulnerable families and, let us face it, poor families, because this is mostly a poverty issue, had the support that they and their children needed.

I am sorry, but am I saying something funny?

As representatives of agencies for people who will have to work every day with the named person policy, what are you looking for in a code of practice?

Kirsten Hogg

The primary concern of the coalition with which we provided evidence is clarity for practitioners.

It is important to give a bit of background to that. Since 2013, practitioners have had two sets of guidance from the Information Commissioner’s Office about information sharing in this context. They were ready to go with implementation of the 2014 act in August 2016. Everyone understands the current lack of clarity and the reasons why people sometimes feel unsure about information sharing. Our priority is to consider the best mechanisms by which to provide that clarity for practitioners.

We would really like to focus on the statutory guidance for parts 4 and 5 and section 18, because we think that that would help to put information sharing into the wider context of the named person scheme. It would also help people to understand why it is important and not just a technical issue. Our understanding from the bill team is that the code of practice will be binding on everybody who falls under the scheme. Therefore, it needs to concern itself with the legalities of information sharing—how people comply with the Data Protection Act 1998 and the Human Rights Act 1998 and with whatever other legal gateways there might be.

We would really like there to be something in the guidance that helps practitioners to interpret that for their own situations. That is crucial. I have concerns about practitioners potentially having to consult two different documents—the code of practice and the guidance. Such a situation would not be insurmountable, but it needs to be taken into consideration. Other witnesses have spoken about flow charts, practice examples and things that will help practitioners to understand how information sharing might look in their own contexts.

It will not be possible to provide black and white examples that say, “In this situation you must do this.” Practitioners must always be able to use their professional judgment, and different families and children will always find themselves in different situations. The guidance needs to provide a framework that helps practitioners to think that through on an individual basis. It is really important that the guidance does not stand alone; it needs to be supported through training.

I very much agree with the points that have been raised by the centre for excellence for looked after children in Scotland—CELCIS—on the need for supervision arrangements within organisations or other ways for practitioners to have conversations with others who can help them to think things through if they feel that they are complex.

There needs to be a whole range of stuff—a suite of materials—that people can consult. We hope that that will provide the clarity that practitioners are lacking at the moment.

Gillian Martin

Other people might want to say what they would like to see in the code of practice.

Alison Reid

I will be brief, as I have already said that I do not think that we need a code of practice. I agree with everything that Kirsten Hogg says about the clarity that is required, and I think that it could be in the guidance.

Gillian Martin

The code of practice would not preclude individual organisations from having their own relevant materials.

I am struck by the points that Professor Loucks has been making about her particular situation, which has been slightly different in many cases. I take it that you would have a code of practice at the top level and adapt it for your practitioners so that it was relevant.

Professor Loucks

That is the type of thing that can be incorporated into guidance. Some of the discussion has been about what we should not share, but part of it is about what we should share and about ensuring that people recognise that.

The issue is addressed in our written submission. There is a contradiction with some existing legislation, such as the Criminal Justice (Scotland) Act 2016, in which we say specifically that the information must be shared. That is not recognised as having an impact on child wellbeing at the moment, so we should ensure that any guidance takes such issues into account.

I agree completely with what Kirsten Hogg just said about the code needing to be backed up by training and information for practitioners.

Gillian Martin

Last week, our panel of witnesses, which included representatives from the police, spoke about working in partnership with those in other sectors to develop an understanding of those sectors and of how you can work together with them. What do you feel about that?

Professor Loucks

That is essential, and it is one reason why our organisation supports the role of the named person and having someone with an overview of a number of the issues that will be relevant to supporting children and families.

Oliver Mundell

I have a couple of questions for Alison Reid. I understand that you do not think that a code of practice is necessary. However, I am interested to note what you say in your written submission. You state that

“the illustrative Code cannot be regarded as sufficient to overcome the clear concerns of the Supreme Court.”

Given the central importance of the illustrative code, do you think that it is essential that Parliament sees the content of the final version before the bill is passed?

Alison Reid

Yes. If you are going to proceed with the bill, the code of practice is key. The code is part of the legislative scheme that is going to be tested or questioned in terms of its human rights compatibility. It is important that the code is seen and scrutinised, as has been discussed.

Oliver Mundell

Given the history of the legislation, the fact that it has been to the Supreme Court, the considerable public and media interest in it and the interest that practitioners have shown in it, do you share my concern that passing the bill without seeing the final code of practice would expose the Scottish Parliament to considerable further reputational risk?

Alison Reid

Yes, I do. We have not talked much about the decision in the Supreme Court. One of the key things that the court wanted people to be able to do was regulate their own conduct so that they were able to decide what was to happen to the information that they had. That is one of the key things that need to happen to make the legislation compliant with article 8 of the European convention on human rights. If the Parliament does not see the code and how the framework will work, it will be difficult to make the call on whether that has been achieved.

The Supreme Court’s other key point was about accessibility and how easy that is to understand. Accessibility is a difficult concept to codify. The law is complex as it is, never mind with the addition of further layers. It is important that scrutiny of the code of practice takes place, if that is the route that is taken.

Oliver Mundell

I have one final question for all panel members. In the previous evidence session, the committee heard a suggestion from a witness that, if the bill were passed as it is currently drafted, there is a reasonable likelihood that some of the issues would be tested again in court. In the long run, does subjecting the legislation—whether the whole act or how it is implemented by individual practitioners—to continual legal testing help or hinder the culture of information sharing that has been talked about positively?

Alison Reid

Clearly, that is not going to be helpful. Practitioners need to know what is going on, and all the dialogue is just confusing. The sooner that this can be sorted out, the better for those who are trying to work the system.

Ruth Maguire

We have spoken quite a bit about wellbeing and have heard differing opinions on whether there needs to be a tight definition of it.

What are the panel’s reflections on the value of a subjective approach, particularly for practitioners? Situations will be different for different families and there cannot necessarily be a checklist of points to suggest whether a child needs further assistance. We have covered the issue already, but is there anything to add?

Kirsten Hogg

Barnardo’s and the other charities with which we provided written evidence have been using the SHANARRI indicators for some years, and staff feel comfortable using them to make decisions about their own professional practice. Staff feel comfortable that the wellbeing indicators allow them to consider the needs of a particular child or family and to think about how best to support that family.

Practitioners feel less confident on the law’s understanding of those indicators, and we hear concerns that there are sometimes grey areas around where practitioners would share information. There are no grey areas in considering how we could support families, but there are grey areas around whether the sharing of information supports those families.

As a group of charities, we did not come down on one side or the other; we simply present to the committee that there is a catch-22 situation. Practitioners are telling us both things: that they value the flexibility of those indicators and being able to use their professional judgment to think about individual circumstances but that there are times when they feel that it leaves them a little exposed.

11:45

Ruth Maguire

What would help to improve that?

Kirsten Hogg

I was struck by what Sally-Ann Kelly said in the previous evidence session about finding ways to help practitioners to understand and interpret the code. That would help a lot with practitioner confidence, although it might not help with the question of whether decisions would stand up to legal scrutiny, which remains a question.

Professor Loucks

I agree completely. There will always be areas where discretion is inevitable. The issue is about ensuring that that discretion is defensible, because we do not want people not to share information for fear of litigation. In most cases in which people already support families, they can have those conversations, discuss whether information sharing is appropriate and get consent for that. It is in relation to cases in which families might object to the sharing of information that the threshold for what can be shared without consent might need to be raised, and that is where we head into the child protection concerns. The issue certainly needs further definition and discussion.

Daniel Johnson

On that point, do you accept that the bill does not change that threshold, which is set down by the DPA? As much as we might want to change the threshold, the bill cannot do that.

Professor Loucks

That is my understanding.

Liz Smith

I want to go back to the dilemma that Kirsten Hogg has just enunciated for us. If practitioners are to do their best for our most vulnerable children, they need to know categorically when they can share the necessary information. If something is below the threshold of intervention for child protection reasons, they want an assurance, when they make a decision to share or not, that they have done the right thing. Is it possible to give them that confidence and legal authority if we do not have a greater definition of wellbeing and an explanation of the purpose of the wellbeing argument in the legislation?

Almost everybody who has come to the committee, including those who are in favour and not in favour of the policy, has asked for that clarity and feeling of security and doing the right thing by the law. It is all very well to say that certain aspects of the law do not change anything, but people feel that those aspects do change things, because they do not know where they stand. We have heard that message time and again. Do we need more clarity in the law on what practitioners can and cannot do?

The Convener

Does anybody want to answer that? Ms Reid does—I suspected that she might.

Alison Reid

The difficulty is that practitioners cannot share information at that level, because any sharing has to be done within the human rights and data protection legislation. I do not think that putting something in a code rather than putting it into guidance helps to provide clarity. The issue is all about giving professionals the confidence to use their experience in making decisions. It is about setting out clear guidance with examples so that they can do that.

In the past, we have provided training relating to underage sexual activity, on which subject it is very difficult for people to decide what their approach ought to be. There is good guidance, including from practitioners who have made video clips on how they would address case studies, that tries to give people confidence to use their professional judgment. The difficulty of putting something into law is that we then have all the other problems that we have discussed, which are to do with making the whole framework human rights compliant. If we do not do that, we do not have to face that level of issue.

Liz Smith

I accept that. The committee is trying to do the best by practitioners and ensure that they are given the necessary support to support the families. However, the strong message that is coming to us is that, at the moment, they feel uncertain and do not know where they stand, and we are desperately searching for a way to give them certainty. That is the nub of the issue. As Tavish Scott rightly said, that matters from a legislative point of view because the Parliament must be informed about the right way forward to ensure that we do the best by families. At the moment, I am not convinced that we are able to do that, because we have an illustrative code of practice that has been criticised by many witnesses. I am interested in how we can get round that.

Kirsten Hogg

There are two factors in play: clarity and confidence. It is important to consider them as two different things, as practitioners’ confidence in their ability to know what to do about information sharing has taken a knock because of the context that I described earlier involving the different pieces of information that have been given to them. Some of that will never be solved by writing something down. Some of it is about the training, the professional development and the support and supervision that practitioners need to rebuild their confidence that they are sharing the information in the interest of getting support for the families, that consent is part of the conversations that they have with people anyway and that, in many cases, it is not a huge change in practice.

Nevertheless, there is a case for a much greater degree of clarity. Our problem with the illustrative draft code of practice is that it says, for example, that there may be other legal gateways by which we could provide information without consent. I am not an information professional but my understanding is that, by and large, if a practitioner does not have consent, those other legal gateways are incredibly limited to the point of it being almost possible to say that, if they do not have consent and the information does not address a child protection concern, they should not share. Practitioners would value a message of that directness.

It should be possible to provide certainty, but it must not be simply something written down. It must come with a lot of other support for practitioners as well.

Liz Smith

Thank you. That is helpful.

Colin Beattie

We are talking a lot about wellbeing and consent. What impact will UK and European data protection law, such as the introduction of the GDPR, have? We have some anecdotal evidence from previous witnesses that there is already a degree of defensive working in anticipation of that legislation coming through. How will that impact on the bill and working practices?

Kirsten Hogg

My concern is that, for practitioners, it is another set of acronyms and another unknown. We need to ensure that we time the information about the requirements correctly so that, when it goes to practitioners, they are fully cognisant of the GDPR and it is not that, six months down the line, the GDPR comes into force and things change for practitioners again.

As I said, I am not an information practitioner, but I understand that in some circumstances, for organisations such as ours, the GDPR will turn consent on its head, so there could be fundamental questions about what it means to share information. Therefore, it is important that, when information is given out to practitioners, they are cognisant of that.

Eileen Prior

We have looked at the GDPR from the perspective of parents and children in schools, because that is the area in which we work. We are clear that informed consent will be required for the holding and sharing of data. As we said earlier, that does not just mean a tick in a box on a form; it means parents and young people fully understanding the context in which that information may be used. There is no doubt that it will make the scenario a good deal more complicated.

Professor Loucks

I reiterate the concerns that I expressed at the beginning about consent. I know that we have moved on from the consent discussion, but the points are very related if we look at international conventions such as the United Nations Convention on the Rights of the Child, which states specifically in article 2 that children should not be discriminated against on the basis of the legal status of their parents. That is information about the parent but it pertains to a child, so whose data is it? Whose information is it and who has to give consent for that? I am still not clear about that.

Colin Beattie

Based on what we have seen about the GDPR and the question of consent, and the emphasis on the disparity between the person giving the consent and the local government authority or the organisation that might be receiving that consent, how will that work? It seems to be an incredibly difficult hurdle to satisfy.

The Convener

There do not seem to be any simple answers coming from the panel. Ms Reid, do you want to comment?

Alison Reid

It is a really good question. I do not know the answer. The Information Commissioner’s Office raised that as an issue and if it cannot answer the question, I am not sure that I will be able to. There is certainly an issue around the balance of power but I am not able to help clarify that.

12:00

Alison Reid

I do not want to repeat myself, but from where I am coming from, the bill makes it more complex and it does not add anything. We would be better off putting our energy and all our expertise into trying to get good guidance that will help practitioners through this in the best way that we can.

Kirsten Hogg

People have mentioned defensive practice a few times. For us, that comes less from the bill and more from the context of the last four years of uncertainty. From anecdotal experience, people are sharing less information. We need to get to a position in which people feel able to share information. Whether that is done through the bill or by some other means, the important thing is that we get to a point of clarity for practitioners because the defensive practice is coming more from that general feeling of uncertainty than from concerns about the bill in particular.

Johann Lamont

Would practitioners be more comfortable with professional expectations and standards rather than their actions being tested in a duty in legislation?

Kirsten Hogg

I think that both come into play.

The Convener

I thank the witnesses very much for their attendance and for their answers to our questions. I now close the public part of our meeting.

12:01 Meeting continued in private until 12:11.

1 November 2017

Seventh meeting transcript

The Convener

Item 3 is our final evidence-taking session on the Children and Young People (Information Sharing) (Scotland) Bill. I welcome John Swinney, the Deputy First Minister and Cabinet Secretary for Education and Skills, and his Scottish Government officials Ellen Birt, who is the bill team leader, and John Paterson, who is a divisional solicitor. Thank you for coming along today.

Cabinet secretary—I understand that you want to make a short opening statement.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

Thank you, convener. I welcome the opportunity to be with the committee today to discuss the Children and Young People (Information Sharing) (Scotland) Bill.

I want to say at the outset that I accept unreservedly the Supreme Court decision, and that, as a consequence, I accept that the information-sharing provisions in the Children and Young People (Scotland) Act 2014 did not adequately respect the right to private and family life. The bill addresses the issues that the Supreme Court raised and will ensure that the rights of children and young people and their parents are respected.

The bill has two overarching objectives. First, its provisions will support agencies and individuals to work with children, young people and families in an integrated way. It also facilitates the lawful and proportionate sharing of information. That will ensure that every child and young person can better access the support and help that they need if they are to succeed.

Secondly, the bill will allow the sections in the 2014 act on the named person service and the child’s plan to be commenced. Without the bill to address the Supreme Court judgment, those legislative provisions cannot be commenced, which would, in effect, remove two key elements of the getting it right for every child approach, which are entitlements that arise from families themselves having asked for improvements in the support that they need and want.

That approach is required because too many children and families continue to struggle to navigate services, and too many children and young people do not get early access to support that could help them to succeed. An approach whereby we rely on the good practice of some people and hope that others will catch up will not deliver for every child and young person. That is why legislation is required.

We know that effective and proportionate sharing of information is essential to getting it right for every child. That is why the duty to consider sharing information, which is at the heart of the bill, is necessary. For the first time, relevant authorities and named person service providers will be required by law to consider the information that they hold, and whether the sharing of that information could support, promote or safeguard the wellbeing of a child or young person. The bill also provides professionals with a focus on considering the consequences for wellbeing of not sharing information when consent to share is not granted.

The measures in the bill must provide the clarity and certainty for which many people are looking, in relation to how to share information lawfully in the context of fulfilling the functions of the getting it right for every child approach.

I have listened closely to and carefully considered all the evidence on the bill that the committee has taken during stage 1. As I said in my letter earlier this week, I accept that there is more that I can do to ensure that we give everyone the certainty and clarity that they are looking for, following the Supreme Court decision, in relation not just to the bill’s provisions, but to the measures to which the bill will give effect, and the broader getting it right for every child ambitions.

Many witnesses have called for greater clarity about what the named person is and is not. We will therefore develop and deliver a positive awareness-raising campaign, which will make clear for children, young people, parents and practitioners what the getting it right for every child approach is about, and how the named person will support them. The Government will lead the campaign, but we will ensure that input from others informs our approach.

Witnesses also expressed concern about resources and support for implementation. I have reflected on the evidence that was presented to the committee. I confirm that further financial resources, over and above those that are set out in the financial memorandum, will be provided to assist implementation beyond the first year of introduction. I intend to consult stakeholders on the detail of that multiyear approach as the bill proceeds.

The code of practice that is provided for in the bill is an important part of the suite of materials that will be made available to practitioners to support their work. Although I had hoped that the illustrative draft code of practice would demonstrate how the power to make a binding code in primary legislation could work to address the issues that were raised in the Supreme Court judgment, I acknowledge that that approach has not had the intended effect.

It is essential that we get right the code of practice that is provided for in the bill, as well as the statutory guidance that is required under the 2014 act and other support materials that will be required. To ensure that, I will establish this month the getting it right for every child practice development panel. The panel will have an independent chair and will include broad relevant stakeholder membership to ensure that the materials are workable, comprehensive and user friendly. That approach will allow for full and proper consideration of changes to data protection law that will result from the European Union general data protection regulation and the United Kingdom Data Protection Bill. The panel will ensure that the experience and expertise of practitioners informs the material through dialogue and interaction with the wider stakeholder community, and that practical knowledge of information sharing in the public sector and children’s services is the foundation for the development of the materials.

As I outlined to the Delegated Powers and Law Reform Committee, my intention has always been to ensure meaningful dialogue and scrutiny of the code of practice by Parliament. I am happy to accept the recommendation of that committee that Parliament be given final approval of the code of practice. I will lodge an appropriate amendment at stage 2.

I am determined that the bill will ensure that everyone who works to support children, young people and families in Scotland will not only be doing so within the requirements of the law, but will feel confident in fulfilling our collective ambition to get it right for every child. I look forward to answering questions from the committee.

The Convener

I record my thanks to everyone who has contributed to the committee’s work on the Children and Young People (Information Sharing) (Scotland) Bill. In particular, I thank the attendees at the focus groups that took place last week for taking time out of their evenings to contribute to our evidence taking.

Earlier this week we received a letter from several organisations that originally had a great many concerns—they still have some—but now seem to be coming round to saying that it is important that the bill be passed. What has happened to make them change their position since we started taking evidence?

John Swinney

My attempt to try to be helpful to the committee—by providing a draft illustrative code of practice without all the consultation that we would ordinarily put into such an effort—has proved not to be helpful. The bill makes some very clear changes to the law in relation to the provisions of the 2014 act by establishing the duty to consider information sharing, as opposed to there being an obligation to share information, which the Supreme Court judged is not consistent with the article 8 provisions of the European convention on human rights. The approach that we have taken, which has been informed by other decisions of the Supreme Court, is to rely on informing that duty to consider through a code of practice. That code of practice will be binding. However, for it to be binding it must be clear and informative.

I took a decision late in the preparation of the bill to submit to the committee an illustrative code of practice along with the bill. Because I took that decision late, there was no opportunity to have a broad consultation. I thought that it would be helpful for the committee to see what a code of practice might look like. I accept that that has created some confusion and uncertainty among stakeholders. In listening to the evidence over the course of the past few weeks, I have made it clear to stakeholders that the provisions of the draft illustrative code of practice are just that—draft and illustrative—and are not the final product. I have set out to stakeholders and the committee the approach that I intend to take to ensure that we have a full, engaged and participative approach to formulation of the code of practice. I welcome the comments of stakeholders who have embraced that approach.

The Convener

Will the stakeholders who wrote the letter be consulted? Will they be part of the solution for the new code of practice?

John Swinney

Yes.

Liz Smith (Mid Scotland and Fife) (Con)

Cabinet secretary, can I take you back to when the Children and Young People (Scotland) Bill first went through Parliament? At the time, we were advised by the Scottish Government that the legal advice was accurate, but that turned out not to be the case. Independent legal advisers warned of a potential danger that was exactly what turned out to be the decision of the Supreme Court. I have a question that is important to the committee, as we attempt to scrutinise the bill. Can you outline what legal advice you have taken this time?

John Swinney

I need to put the question from Liz Smith into a wider context. Prior to Parliament passing the Children and Young People (Scotland) Act 2014, the Government had obviously taken the necessary advice in preparing that bill and introducing it to Parliament. The 2014 act was then tested in both the outer house and inner house of the Court of Session—the highest courts in Scotland—and both courts dismissed the legal challenges to the legislation. The case was then referred to the Supreme Court.

Ross Greer (West Scotland) (Green)

It has been suggested that a number of organisations that expressed concern have changed their positions and have moved on, and that that was simply down to an initial lack of understanding of what the Government was proposing. Although that is understandable, given that there seems to have been a failure to live up to the promise of a summer of comprehensive consultation, I think that it is about something far more substantial than that. Evidence from the Children and Young People’s Commissioner Scotland states that the new bill

“is intended to address the technical deficiencies in the CYP Act relating to information sharing by amending the Act to ensure it is compliant with the Data Protection Act (DPA) 1998 and with the ECHR. The bill as currently drafted does not achieve this.”

Why has the Children and Young People’s Commissioner Scotland taken that position? What has he not understood?

John Swinney

It is for the Children and Young People’s Commissioner to set out to the committee his rationale. The Supreme Court raised two important questions for the Government to consider, and I addressed them in my answer to Liz Smith a moment ago. The Government has made provisions that engage directly with those two questions.

Mr Greer said that there was a suggestion that stakeholders had not understood the Government’s provisions. That is not my position. The Government did not explain effectively its provisions in the draft illustrative code of practice, and I have set out for the committee why that happened. I made a judgment during the preparation of the bill that it would be better to provide the committee with a draft illustrative code of practice, because I thought that the committee would say, “We’ve got this bill and it’s dependent on a code of practice. Where’s the code of practice?” I thought that, for completeness, I would provide a draft illustrative code of practice to show the type of territory that we would be covering.

However, I accept that we did not have adequate time to consult with stakeholders, who would have been able to give us a more enhanced proposition. I cannot expect those stakeholders to be comfortable with the contents of the draft illustrative code of practice, because they did not have adequate opportunity to participate in the process.

There is no lack of understanding on their part but an acceptance on my part that, we decided to do something while we were preparing the bill, but we did not have adequate time to engage our stakeholders on it. I will make sure that we do so as we proceed with the bill and design the code of practice.

Ross Greer

The provision that was set out in the 2014 act was deemed disproportionate. The Government’s proposal is to bring in a new provision for a statutory duty to consider sharing information. Bearing in mind that there will almost certainly be a further legal challenge, would it not have been legally more secure, instead of introducing a new provision, simply to state that information sharing should take place under existing data-sharing frameworks?

John Swinney

In my view, that is precisely what we have done. We are saying in the bill that the consideration of information sharing that must be undertaken must be entirely compatible with the existing legal framework. In the bill’s supporting documentation that is available to practitioners, we will address the second issue in the Supreme Court judgment by setting out clearly a distillation of what the framework looks like to enable practitioners to take forward their judgments when exercising that duty to consider.

Ross Greer

I will stick to three snappy questions.

The question of wellbeing was addressed in the 2014 act, which sets out the eight wellbeing indicators. Those are subjective terms, but they are designed to provide a context within which professionals can exercise professional judgment about how effectively a child or young person’s wellbeing is supported.

I am concerned that, because of the legal debate that we have had and the hiatus that we are in, unless we provide legal certainty through the passage of the bill that good practice will be undermined.

Gillian Martin (Aberdeenshire East) (SNP)

You have just mentioned the nervousness among practitioners, cabinet secretary, but there is also considerable nervousness among families now that the named person legislation and information sharing have been discussed in the media and in society at large. You mentioned a public information campaign. How is that going to disseminate confidence to families and children who might have to use the named person service?

John Swinney

We will want to make sure that we adequately and effectively counter the clear unease and uncertainty that have been created as a consequence of the Supreme Court’s decision and the pause that we have had to put on the implementation of the legislation. We must take care to proactively and dispassionately set out the merits of the legislation, the services that are available and the supportive role that is envisaged. It is important that we try to ensure that members of the public—whether they are a child or a parent—are equipped with that information.

11:00

Gillian Martin

Will the code of practice be written in such a way that it will be understandable to families? They might want to read it to know how their information might be shared.

John Swinney

That must be a requirement. The code of practice will be of no value if people—whomever they happen to be—cannot understand it. Anyone with a relationship to the code of practice must be able to understand it.

Tavish Scott (Shetland Islands) (LD)

I have a couple of questions about the code of practice. First, however, I will defend Oliver Mundell. When Mr Swinney was in Opposition, he regularly demanded that lots of us resign. [Laughter.] I will pass over a few of his press releases from those days.

John Swinney

I have a very different recollection of events, Mr Scott.

Tavish Scott

The committee is being asked to sign up to the general principles of the bill.

Because I have listened to the committee’s evidence, I have conceded, in a change to the proposition, that Parliament will have the final say, through a vote, on the contents of the code of practice. The provisions of the bill already envisaged that I would lay a draft code of practice in Parliament, that the code of practice would be available for consultation in Parliament for 40 days and that I would have to take account of any comments on the draft code that were expressed by Parliament within that 40-day period. I now propose to amend the bill to include another stage in that process whereby the code will come back to Parliament for it to decide—it will not be me who decides; it will be Parliament—whether it is acceptable. That is a huge change in the position.

Tavish Scott

John Swinney

In the field of health, the Nursing and Midwifery Council has said:

“We can currently see no conflict between the draft legislation proposed and our own regulatory approaches, notably our Code.”

The Royal College of General Practitioners has said:

“We welcome the amended wording of the Bill, as it meets our concerns regarding the threat to doctor-patient confidentiality contained in the original Bill”.

The General Medical Council has said:

“We warmly welcome the proposed move away from creating a mandatory duty to share information about children and young people with a Named Person.”

Those issues are the subject of discussion and debate among organisations. If Mr Scott is looking for evidence there is plenty of evidence of organisations that are saying—

Tavish Scott

Is the RCN wrong, then?

John Swinney

The RCN has its opinions and is entitled to express them. As Mr Scott knows, I simply marshal the evidence of different opinions for the committee to judge.

The Convener

Daniel Johnson wants to ask a brief question.

Daniel Johnson

I want to clarify something about the status of the code of practice. I hear what the cabinet secretary is saying. Will those provisions be subject to parliamentary scrutiny in the bill, and will that apply to future changes to the code of practice, or will they have the status of secondary legislation?

John Swinney

Section 1(4) of the bill introduces new section 26B of the 2014 act. New section 26B(6), states:

“The Scottish Ministers must lay before the Scottish Parliament a draft of a code of practice they propose to issue.”

New section 26B(7) states:

“The Scottish Ministers must not issue the code of practice until after the expiry of the period of 40 days beginning with the day on which the draft code was laid before the Parliament.”

New section 26B(8) states:

“The Scottish Ministers must, in the code of practice they issue, take account of any comments on the draft code expressed by the Parliament within that period.”

Those three new subsections are already in the bill. If the committee approves the principles of the bill at stage 1, I will lodge for the committee’s consideration a stage 2 amendment that will apply an additional provision, which will say that the code of practice cannot be put in place until Parliament has agreed to that. If we were to bring forward any subsequent code of practice—to take account of changes in data protection legislation, for example—we would have to go through the same process.

The code will not have the status of secondary legislation because it is not legislation; it is explanatory information. I am trying to address what I clearly detect is a parliamentary concern about how the guidance can command sufficient authority and confidence in Parliament by enabling that proposal to be considered by Parliament and by giving Parliament, rather than me, the final say.

Ross Greer’s point touches on something that Liz Smith talked about. Is the issue partly that individuals fear being held legally responsible? Is it that practitioners want to ensure that the body is held responsible and not the individual?

John Swinney

Tavish Scott

Thank you.

Clare Haughey (Rutherglen) (SNP)

Cabinet secretary, you will be aware from the evidence that we have heard from practitioners and professional bodies that there is significant concern about staff and practitioners having time to receive the correct training to enable them to implement the named person approach. That certainly came through at our focus groups last week.

I am pleased that you said that there will be additional funding—I think you used the expression “further financial resources”. Will you expand on that? What will be available to organisations so that they can roll out training, particularly in relation to parts 4 and 5 of the 2014 act?

John Swinney

The bill envisages the duty to consider sharing information being applied on a more widespread basis, and that will change the nature and character of some of the work that is being done. It also has to be borne in mind that, where the practice has been rolled out, it has resulted in a reduction in case load because of the proactive work that has been undertaken to achieve the objective of the named person policy—that is, to avoid more complex cases arising because earlier intervention has prevented that need from crystallising.

11:30

Johann Lamont

It strikes me, in this conversation and in all the evidence that we have taken, how far away this feels from the real world and the young people we want to support. I am sure that you share that concern.

Can you guarantee that resources will not be removed from providing for young people and children in order to fund training?

John Swinney

Yes.

I share the concern that Johann Lamont raised at the start of her question. In one of his questions, Mr Scott referred to the difficulty with this bill being that we are having to address a very narrow, albeit important point because of the issues raised by the Supreme Court judgment. However narrow it is, the point is critical to enabling us to pursue the larger agenda, which is about supporting the wellbeing of children and young people in our communities. The bill is a challenge because the committee has to scrutinise this very narrow point in order that the larger picture can be taken into account.

Johann Lamont

My concern is that the committee will have to judge whether the legislation makes the situation better or worse for young people. It also strikes me that the evidence, to which you have obviously paid a lot of attention, lacks a ringing endorsement of the legislation. The evidence has not even included your position, which is that the legislation is absolutely necessary in order to protect young people. In fact, many of the practitioners have said that it is what they do anyway, so the legislation is unnecessary, and they predicate their support for the bill on the quality of the code of practice.

At best there are people who are committed to the named person scheme and to GIRFEC who say that they can make the legislation work. You have already mentioned the letter that the committee received from a group of charities, which was interesting and very useful to us. We were grateful for it because it outlined their support for the need for a duty to consider sharing information. I do not want to misrepresent what the letter said, because clearly the overall conclusion was that we should support the bill, but I will read out one paragraph:

“We recognise that significant concerns remain. At this stage, we are prepared to work with the Scottish Government with the aim of producing a Bill and Code that can be supported by the majority of the children’s sector and, ultimately, the Scottish Parliament. Our current support is contingent on the Scottish Government working effectively with the sector to produce revised measures that address the concerns expressed to date, satisfactorily.”

The committee is now in the position that it is expected to support a bill that has only conditional support from its strongest advocates, who, in that letter, contemplate the possibility that it will not succeed. Do you accept that that is a dilemma for the committee? In fact, the letter appears to me to suggest that those organisations want to work with you from a base point of asking how we can make the policy work, rather than saying that the bill should be passed and then they will see how we can make the best of it.

John Swinney

My response to that has to be set within the context of the wider position of every one of those organisations, which is that they want to see the named person provision put into practice and take effect. Some of their experience, in some parts of the country, is of that provision already working, voluntarily, while in other parts of the country it is not—hence the need for legislative impetus to put the provision in place.

None of those organisations is casting any doubt on the importance of having named person provision, which is the legislation that is already on the statute book. However, for that to commence and have its potential realised, the bill that is before the committee needs to be passed.

Johann Lamont

With respect, that is not what they say.

John Swinney

Convener, may I please complete my point? I am not interpreting what the signatories of that letter are saying; I am purely and simply making a factual point to the committee that the named person provision cannot be commenced on the basis envisaged by the 2014 act unless this bill is passed.

I have accepted that there is a job of work to be undertaken on the code of practice, as my exchange with Mr Scott helped to clarify significantly, and whether that is enacted will ultimately depend upon a parliamentary decision. I have put much more involvement and participation for Parliament into the process than was originally envisaged in the bill. That is a crucial part of the approach that I am taking.

My final point about the letter from the organisations is that they support the concept of the process that the Government is undertaking, but they want to be immersed in ensuring that it takes the correct course and I have committed the Government to that.

Johann Lamont

With respect, cabinet secretary, they say more than that. They say that their “support is contingent” on the successful conclusion of that work, which is a very different thing. They are contemplating the possibility that the legislation may not work. We know that they support the named person scheme and seek to continue to support it. If they believed that the bill was required in order to deliver it, they would say that, but they do not. They say that their support for it is contingent upon an effective outcome. The committee is being asked to support a bill without knowing that that outcome is guaranteed. I am sure that you will accept that that is a major problem.

On the question of unintended consequences of the legislation, a very significant amount of evidence—not from everybody, I appreciate; some people said that they would do their best to make it work—was from people who felt that defensive practice would develop. I understand that other people have said that it has already developed because of the uncertainty. Do you share my concern that a consequence of the legislation may be that people begin to practise even more defensively than they have in the past, to the detriment of our shared commitment to the safety of our young people?

John Swinney

The events that were associated with the Supreme Court challenge have created a very difficult set of circumstances for practitioners—circumstances that we did not want to see. The letter from the group of organisations makes it quite clear that the legal uncertainty is creating some of that risk-averse practice. We have to make a judgment about how to resolve that issue, because I am at one with Johann Lamont in wanting to see clear process and practice in place to support the wellbeing of children in our society.

If we want to reach the destination identified by Johann Lamont, we have to wrestle with the best way to do that in the light of where we find ourselves in the aftermath of the Supreme Court judgment. Will our ability to get to that destination be aided or hindered by the passage of the bill?

In my view, it will be aided by the passage of the bill because we will be able to put in place the legal clarity that will enable good practice to be undertaken safely within the law and within the parameters of good guidance.

If we do not pass the bill, the concept of the named person will go into hiatus. As a consequence of that, the opportunity to support the enhancement of the wellbeing of young people in Scotland will be diminished.

Johann Lamont

That is your view, but it is not a view that everybody shares. Do you accept that a significant number of people in the legal profession do not accept that there is legal clarity in the matter, and think that there are significant problems with it?

John Swinney

The committee has heard different legal opinions. Johann Lamont is absolutely right; what I have just expressed is my opinion. I have given my opinion to Parliament and the committee can consider it; that is the process.

Ultimately, the committee will also want to consider on what basis I would come to the committee with a bill. What will I have gone through to make sure that the bill is robust enough to meet the needs of the legislation? I have gone through the necessary process to get to this point. In that context, the bill helps us to provide legal clarity, although I accept that there will always be legal debate about some of the provisions.

John Swinney

I am certainly prepared to do so, because Johann Lamont’s point may have some real substance. It may be that the best way to address the issue is to take that into a different sphere and find a different way of going about it. I will certainly give active consideration to that point.

The Convener

A number of witnesses shared some of Johann Lamont’s concerns about the responsibility that could be laid on them in judging the difference between wellbeing and child protection, but the concern seemed to be more that they were not sure that the local authority, health board or other organisation that was legally responsible would be held responsible. They said that if they were given those guarantees some of their problems would disappear. Will strict guarantees be given to individuals that they will be held responsible in a way that might lead to a legal case only if they have done something that is criminally wrong, as is the case just now, without the named person scheme?

John Swinney

Section 19(8) of the 2014 act says:

“Responsibility for the exercise of the named person functions lies with the service provider rather than the named person.”

There is protection in law—in existing statute—which would be commenced with these provisions. That is in the 2014 act.

The Convener

Do you consider that the practitioners will, in most cases, be able to continue to use informed consent as a basis for sharing wellbeing information?

John Swinney

I imagine that that approach will be taken almost universally.

The Convener

Thank you very much for your evidence.

11:49 Meeting continued in private until 12:47.

8 November 2017

Children and Young People (Information Sharing) (Scotland) Bill

Overview

Why the Bill was created

Withdrawn

Introduced

Children and Young People (Information Sharing) (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Scottish Parliament research on the Bill

Stage 1 - General principles

Have your say

Committees involved in this Bill

Who examined the Bill

Who spoke to the lead committee about the Bill

First meeting transcript

The Convener

Ellen Birt (Scottish Government)

The Convener

Liz Smith

Ellen Birt

Liz Smith

Ellen Birt

John Paterson (Scottish Government)

Liz Smith

John Paterson

Liz Smith

Ellen Birt

Liz Smith

John Paterson

Liz Smith

Ellen Birt

John Paterson

The Convener

John Paterson

The Convener

John Paterson

Liz Smith

The Convener

Liz Smith

Ellen Birt

Liz Smith

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Ellen Birt

Colin Beattie

Ellen Birt

Colin Beattie

Ellen Birt

Colin Beattie

Ellen Birt

Daniel Johnson (Edinburgh Southern) (Lab)

Ellen Birt

Daniel Johnson

Ellen Birt

Daniel Johnson

Ellen Birt

Daniel Johnson

Ellen Birt

The Convener

Johann Lamont (Glasgow) (Lab)

Ellen Birt

Johann Lamont

Ellen Birt

John Paterson

Johann Lamont

John Paterson

The Convener

John Paterson

Ellen Birt

The Convener

Johann Lamont

The Convener

Ross Greer (West Scotland) (Green)

Ellen Birt

Ross Greer

Oliver Mundell

Ellen Birt

Oliver Mundell

Ellen Birt

Oliver Mundell

Ellen Birt

Oliver Mundell