What does the law say about sharing information? - Adult safeguarding: sharing information
Information-sharing is related to a number of different pieces of legislation:
- local authority responsibilities for sharing information under the Care Act 2014
- the common law duty of confidentiality
- the Human Rights Act 1998, Article 8 (the right to respect for private life)
- the Data Protection Act 1998
- the Crime and Disorder Act 1998
- the Mental Capacity Act 2005
Local authority responsibilities for sharing information under the Care Act 2014
Under the Care Act 2014 a local authority must:
- set up a safeguarding board; the board will share strategic information to improve local safeguarding practice
- cooperate with each of its relevant partners; each relevant partner must also cooperate with the local authority.
Clause 45 of the Care Act focuses on ‘supply of information’. This relates to the responsibilities of others to comply with requests for information from the safeguarding adults board.
The statutory guidance to the Care Act emphasises the need to share information about safeguarding concerns at an early stage; information-sharing agreements or protocols should be in place.
Designated adult safeguarding managers in the local authority and its partner agencies are responsible for ensuring that information shared about individuals alleged to have caused harm is in accordance with human rights, data protection and confidentiality requirements. 
The common law duty of confidentiality
Confidentiality is an important principle that enables people to feel safe in sharing their concerns and to ask for help. However, the right to confidentiality is not absolute. Sharing relevant information with the right people at the right time is vital to good safeguarding practice.
All staff and volunteers should be familiar with their internal safeguarding procedures for raising concerns. They can also contact either the police or the local authority safeguarding lead for advice, without necessarily giving an individual’s personal details, if they are unsure whether a safeguarding referral would be appropriate.
Some basic principles:
- Don’t give assurances about absolute confidentiality.
- Try to gain consent to share information as necessary.
- Consider the person’s mental capacity to consent to information being shared and seek assistance if you are uncertain.
- Make sure that others are not put at risk by information being kept confidential:
- Does the public interest served by disclosure of personal information outweigh the public interest served by protecting confidentiality?
- Could your action prevent a serious crime?
- Don’t put management or organisational interests before safety.
- Share information on a ‘need-to-know’ basis and do not share more information than necessary.
- Record decisions and reasoning about information that is shared.
- Carefully consider the risks of sharing information in relation to domestic violence or hate crime.
The Caldicott principles
The sharing of information in health and social care is guided by the Caldicott principles. These principles are reflected in the Data Protection Act and are useful to other sectors:
- Justify the purpose(s).
- Don’t use personal confidential data unless it is absolutely necessary.
- Use the minimum personal confidential data necessary for purpose.
- Access to personal confidential data should be on a strict need-to-know basis.
- Everyone with access to personal confidential data should be aware of their responsibilities.
- Comply with the law.
- The duty to share information can be as important as the duty to protect patient confidentiality.
The Human Rights Act 1998
- Under Article 8 of the European Convention on Human Rights, individuals have a right to respect for their private life.
- This is not an absolute right and can be overridden if necessary and in accordance with the law.
- Interference must be justified and be for a particular purpose.
- Justification could be protection of health, prevention of crime, protection of the rights and freedoms of others.
- A decision to share information and the reasoning behind it should be recorded.
The Data Protection Act 1998
The Data Protection Act 1998 sets out the parameters for sharing information appropriately and safely.
The basic principles
Any personal information should be shared on the basis that it is:
- necessary for the purpose for which it is being shared
- shared only with those who have a need for it
- accurate and up to date
- shared securely and in a timely fashion
- not kept for longer than necessary for the original purpose.
‘Vital interest’ is a term used in the Data Protection Act to permit sharing of information where it is critical to prevent serious harm or distress, or in life-threatening situations. If the only person that would suffer if the information is not shared is the subject of that information, and they have mental capacity to make a decision about it, then sharing it may not be justified.
The Information Commissioners Office upholds information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
The Crime and Disorder Act 1998
Any person may disclose information to a relevant authority under Section 115 of the Crime and Disorder Act 1998, ‘where disclosure is necessary or expedient for the purposes of the Act (reduction and prevention of crime and disorder)’.  ‘Relevant authorities’, broadly, are the police, local authorities, health authorities (clinical commissioning groups) and local probation boards.
Understanding the Mental Capacity Act 2005
‘Professionals and other staff need to understand and always work in line with the Mental Capacity Act 2005. They should use their professional judgement and balance many competing views. They will need considerable guidance and support from their employers if they are to help adults manage risk in ways that put them in control of decision making if possible’. 
- The Mental Capacity Act will apply if there is any doubt that the person concerned has the mental capacity to make specific decisions about sharing information or accepting intervention in relation to their own safety.
- The Mental Capacity Act ‘Code of practice’ states that: ‘The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made’. 
- In most cases a worker should be able to assess whether a person has the mental capacity to make a specific decision – see the two-stage functional test of capacity.
The two-stage functional test of capacity
In order to decide whether an individual has the capacity to make a particular decision, you must answer two questions:
Stage 1: is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
Stage 2: is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
The Mental Capacity Act states that a person is unable to make their own decision if they cannot do one or more of the following four things:
- understand information given to them
- retain that information long enough to be able to make a decision
- weigh up the information available to make the decision
- communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
- Every effort should be made to find ways of communicating with someone before deciding they lack capacity to make a decision.
- Different methods (e.g. pictures, communication cards or signing) should be used to support people with communication difficulties to make sure their views are heard.
- Family, friends, carers or other professionals should be involved as appropriate.
- The mental capacity assessment must be made on the balance of probabilities – is it more likely than not that the person lacks capacity?
- You must be able to show in your records why you have come to your conclusion that capacity is lacking for the particular decision in question.
Case study: David Open
David is a 45-year-old man with learning disabilities. He lives in a housing association flat and has support from adult social services to manage his finances. The housing office has received complaints from the neighbours about noise from the flat. The housing officer, Nimesh, visits David and notices that there are lots of empty alcohol containers lying around. He asks David about the cans and bottles and David says that he has friends who come round in the evening and drink in his flat. Nimesh also notices that there is graffiti on the wall in the living room. He asks David about this and David says that his friend did it. Nimesh asks about the friends and learns that there are a number of much younger men who appear to have befriended David.
Nimesh talks to David about the possible risks and explains that he may be being exploited. He asks David if he can discuss his concerns with other safeguarding partners such as adult social care and the police. He explains that he wants to make sure that David is safe in his flat. David is insistent that he has the right to make friends and he does not want social services or the police informed.
Nimesh considers David’s mental capacity with regard to his decisions to:
- maintain relationships with the young men
- refuse to share information with the police or adult social care.
Nimesh considers whether David can:
- understand the risk of letting the young men drink in his flat and that the graffiti, cans and bottles suggest a lack of respect for him and his personal space
- retain that information long enough to be able to make the decisions to keep allowing the men into his flat or not to inform the police or adult social care
- weigh up the situation to enable him to make a decision about the possible risks
- communicate his decision about this circumstance and risk.
Nimesh is sure David has an impairment – his learning disability – and he is not sure that he can appreciate that he may be being exploited or understand the possible risks or consequences. He discusses this with his manager and they take the decision, in David’s best interests, to raise a safeguarding concern with adult social services. Their decision and reasoning is recorded in David’s file.
Nimesh explains to David why he has to raise a safeguarding concern and explains that social services will need to consider whether it is necessary to involve the police.
- People with care and support needs may be unaware of the dangers of exploitation.
- ‘Mate crime’ is a term used to describe situations where a person is befriended because of the opportunities for exploitation.
- The Mental Capacity Act supports decision-making where someone may not understand the consequences of their actions or the actions of others.
The key principles of the Act
You should understand the basic principles of the Mental Capacity Act when making decisions about sharing personal information for safeguarding purposes. There are five key principles.
- Principle 1: a presumption of capacity. Every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
- Principle 2: individuals being supported to make their own decisions. A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
- Principle 3: unwise decisions. People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
- Principle 4: best interests. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
- Principle 5: less restrictive option. Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.
- A person with capacity is entitled to make unwise decisions relating to abuse.
- If a person making an unwise decision lacks capacity to make that decision, then a decision needs to be made by others in the person’s best interests.
- ‘Best interests’ decisions must comply with the Mental Capacity Act.
- It may be necessary and justified to contest an unwise decision if it appears to be related to exploitation, coercion, grooming, undue influence or duress.
- Individuals should be given the opportunity to disclose undue influence and seek appropriate support.
- If a person with capacity is making an unwise decision that puts others at risk then it may be justified to share information without their consent.