The DPA gives individuals, with a few exceptions, the right to see, and if necessary correct, information held on them by organizations in any filing system, whether manual or electronic, whether public or commercial, in order to ensure that the information used by those organizations is correct. This provision has two benefits:

i) For the individual, a confidence in the organization providing the service.

ii) For the organization, more accurate information enables the more appropriate delivery of services, and more effective marketing.

The conflict between adherence to the act and recording in childcare occurs when the information that is being reported is not verifiable fact, but opinion, or ‘intelligence’. This was highlighted most recently by the case where a childcare professional, following discussions with colleagues regarding a child over which there were serious worries, recorded that his colleagues also had concerns, based upon a limited amount of evidence, that the child’s parents were encouraging a sibling to ‘play up’ to potentially gain both financial benefits and social services support.

A copy of the report was ‘unfortunately’ sent by mistake to the parents, who then accused the childcare professionals of both slander and libel. All the professionals involved have been advised to keep future reports to known facts and avoid recording such ‘intelligence’. Under the DPA, if the parent had asked for a copy of the report as part of a Subject Access Request (SAR) they would been entitled to see it, unless the authority decided that it could justify in court that it would not be in the child’s best interest for that information to be disclosed.

A second example was that of a child who transferred earlier this year from one education authority to another. It was obvious from the child’s behavior that there were problems, and these gave his new teacher concern. However, when the child’s records came from the former authority, neither teachers nor educational psychologists could identify what the specific problem was. On one level the issue about facts cannot be disagreed with, but in the unfortunate cases of a failure in child protection, there must often be times when a range of recorded pieces of ‘intelligence’, when combined, could have indicated that the child was at risk.

Fortunately, such ‘intelligence’ is shared informally on a daily basis and a lot of children and their families do get appropriate care and support. But if childcare professionals reduce the amount of ‘intelligence’ recorded, more children will inevitably be at risk, as will those professionals for failing in their ‘duty of care’. There are a number of factors that have contributed to this situation:

i) Our increasingly litigious society, with some in the legal sector believing that there is big money to be made from public sector organizations.

ii) The increased awareness of the potential for disclosure of records by childcare professionals, not from the DPA, which has given the right of access since 1984, but by the full introduction of the Freedom of Information Act in January this year.

iii) The increased use of structured recording on electronic records management (ERM) systems, which (quite rightly) make ‘hiding’ information more difficult.

Front-line staff will tell that the issue of the conflict between disclosure of records and keeping ‘intelligence’ is not new. Health visitors’ diaries, advisory teachers, and social worker ‘day books’ have always been liable for submission in court, and have to act as contemporaneous records. It is just that the combination of increased standards in record keeping, and the introduction of ERM technology, is exposing this conflict.

So we have the DPA, the central tenant of which is protection, potentially reducing the protection process for children, as well as protection for caring professionals and their organizations, and even exposing them to the risk of opportunistic litigation. Ironically, this situation also means that the data the act is intended to protect is not being recorded in the first place, so it is at risk of being entirely lost! Clear guidance from the Information Commissioner is thus urgently needed to address the conflict.

Source: OpinionWire by Butler Group (www.butlergroup.com)