The Pre-School Learning Alliance offers advice on the sensitive issues of record keeping and confidentiality…
In recent years many local authorities have made changes to improve record keeping in children’s services, including early years settings. Serious Case Reviews (SCRs) have highlighted failings in how and what information is recorded when there are concerns about a child, as well as how, when and with whom it’s shared. Sometimes practitioners are confused about confidentiality; at other times there are breakdowns in the communication chain creating a gap in the safety net through which a child may fall. The following guidelines should enable you to avoid these pitfalls.
Confidential information is ‘personal information of a private or sensitive nature’ that:
● is not already lawfully in the public domain or readily available from another public source;
● has been shared in a relationship where the person giving the information could reasonably expect it would not be shared with others.
Information Sharing: Guidance for practitioners and managers (DCFS 2008)
Nursery staff can be said to have a ‘confidential relationship’ with families. Some families share information about themselves readily and should be consulted about whether this information is confidential or not. Where third parties share information about an individual, staff need to check if that is confidential, both in terms of the subject sharing the information and the person whom the information concerns.
Information shared in the context of a nursery setting is confidential to the setting and, in some defined circumstances, to other staff within the organisation. For example, a nursery manager may discuss a family in a supervision meeting with a senior manager for the purpose of professional support, clarification and accountability regarding the organisation’s procedures.
There may be times when confidential information about a family may need to be shared with others at senior level in the organisation – for example, a high-profile case that may be reported in the press would need to be brought to the attention of the chief executive.
A breach of confidentiality occurs when confidential information is not authorised by the person who provided it or to whom it relates, putting said person in danger or causing them embarrassment or pain. It’s not a breach of confidentiality if the information was provided on the understanding that it would be shared with a limited number of people, or where there was consent to the sharing.
Confidential information may only be shared without authorisation from the person who provided it, or to whom it relates, if it’s in the public interest – i.e. where not sharing it could be worse than the outcome of doing so. The decision should never be made as an individual, but with the backup of managers, who can provide support, and sometimes ensure protection. The three critical criteria for sharing information without consent, or overriding refusal to give consent, are:
● Where there is evidence that a child is suffering, or is at risk of suffering, significant harm.
● Where there is reasonable cause to believe that a child may be suffering or at risk of suffering significant harm.
● To prevent significant harm arising to children and young people or serious harm to adults, including the prevention, detection and prosecution of serious crime.
In a setting two kinds of records are kept on children:
● Developmental records, including the observations and samples of children’s work that become the formative assessment record. These are kept by the key person but can be accessed freely by the child, other staff working with the child and the parents.
● Personal files, which are usually kept securely in the office. They contain confidential information, such as the registration form, contractual records and parental consent forms, as well as records regarding work undertaken with the family. Information regarding the setting’s concerns about a child are recorded and kept in here. It’s helpful to have a separate section in the file for this ongoing work.
The Continuum of Need outlined in the Child Assessment Framework provides practitioners with a means of locating where a child is within the continuum and how to provide for their needs.
Children for whom there are concerns about their welfare come under the ‘additional needs – integrated support’ section, (Level 3) whereas children for whom there are concerns about possible child abuse come under the ‘complex needs’ section (Level 4). All concerns about a child’s welfare or protection must be recorded, as must all actions taken as a result of concerns, including relevant conversations, emails or other communication. The records then build up as an ongoing and contemporaneous account of the work undertaken by the setting to promote the child’s welfare and/or protect them from harm.
Some local authorities, via their Local Safeguarding Children’s Board (LSCB), have developed detailed recording systems, while others have left it up to agencies to develop their own systems. These should include a means of recording:
● marks or injuries on arrival – when a child arrives at the setting with a mark or injury that didn’t occur in the setting, the parent is asked about it and their explanation is recorded. Most of the time, the parent’s explanation matches how the injury appears and with what the child says, but when it doesn’t, or if the child has had an unusually high number of injuries, the child may need to be referred to social care.
● concerns that arise from your observation about how a child presents, an injury or disclosure or observation of play or behaviour that arouses concern.
● any discussion with the parent that took place as well as any consent to share information (which includes making a formal referral) and the reason why consent was either not sought or refusal for consent was overridden.
● any decision made about the concern and the outcome of that.
● any discussion with professionals about the child or any meetings attended and what the decisions or actions were.
● information required by social care for making a referral; a form is helpful and enables the practitioner to gather the required information before making the call.
Means of recording should enable information to be gathered that is concise, non-judgemental and to the point. It should never become a task that is an end in itself, nor one in which the needs of the child become obfuscated beneath a pile of forms.
If there’s a dispute between the parent and the nursery, or even with social care, the parent has a right to request to see confidential records concerning their child. However, a setting is not obliged to hand over the file on demand; the parent must make the request to see their file in writing – and if there’s confidential information in the file relating to third parties, each of these must be asked for consent to disclose entries. This must be in writing to each individual named, including the parents. Most agencies will refuse consent as the parent should go directly to them to see any records. Some individuals may wish to remain anonymous, such as another parent who shared concerns with you, and will refuse consent. A copy is made of the file and any entry where consent has been refused to share will be deleted. What will remain in the file will be a trace of your work: your concerns and actions. This should never be handed over to the parent but the copy given to them and gone through with them, so that it can be explained and any areas of dispute identified. The parent can take the cleaned copy with them, as they may need it to make their case, if there is one. In each case, legal advice should be sought to make sure that you don’t inadvertently disclose third-party information, and certainly it should be sought where a parent is making a legal case against the setting.
Parents need to know that sensitive information about them and their family will be kept confidentially; that your professional practice demands that some things are written down, including minor concerns or disputes; and that you’re obliged to record, in an accurate and non-judgemental manner, concerns about children’s welfare or abuse. They need to know when you have made a note in their file and for what reason – unless it would put the child in danger.
They have a right to expect that information they share with you is treated as confidential, and to be informed that their consent will be sought, in most cases, if it must be shared; but they should be informed of circumstances where it may need to be shared without their consent. Consent must be informed – that is the parent needs to understand why information will be shared, what will be shared, who will see information, the purpose of sharing it and the implications for them of sharing that information.
This article was written by Stephanie Mathivet, a former Curriculum and Standards Manager at the Pre-School Learning Alliance. Visit pre-school.org.uk