The Early Years Alliance offers advice on the sensitive issues of record keeping and confidentiality…
Over the years many local authorities have made changes to improve record keeping in children’s services, including early years settings.
Serious Case Reviews (SCRs) continue to highlight 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 educators can be 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’. Private information is information that:
● relates to an identifiable legal or natural person
● is not in the public domain or common knowledge
● would cause them damage, harm or distress if the information were made public
(Source: Statement on confidentiality - GOV.UK)
Early years educators 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, you 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 education and early years 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 your 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, you’d need to inform your committee or registered person about a high-profile case that may be reported in the press.
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 distress.
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 – ie 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. These may be kept electronically as part of your setting’s management software or may be paper based:
● Developmental records, including any observations and samples of children’s work that demonstrate their progress. These are maintained by the key person but can be accessed freely by the child, other educators working with the child and the child’s 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 Local Safeguarding Partners Threshold Document provides educators and other practitioners with a means of locating where a child is within the continuum and how to provide for their needs.
If you have concerns about a child’s welfare, this comes under the ‘additional needs – integrated support’ section (Level 3). If you have concerns about possible child abuse, this comes under the ‘complex needs’ section (Level 4).
You must record all concerns about a child’s welfare or protection, and all actions taken as a result of your concerns, including relevant conversations, emails or other communication.
The records then build up as an ongoing and contemporaneous account of the work undertaken by your 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 your setting with a mark or injury that didn’t occur in the setting, ask the parent about it and record their explanation. Most of the time, the parent’s explanation will match 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, you may need to refer the child 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 you to gather the required information before making the call
Means of recording should enable you to gather information 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 a parent and your early years setting, or even with social care, the parent has a right to request to see confidential records concerning their child.
However, you’re 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.
Make a copy of the file and delete any entry where consent has been refused to share.
What will remain in the file will be a trace of your work: your concerns and actions. Don’t hand this to the parent – instead, give them a copy and go through it with them so you can explain 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, you should seek legal advice to make sure that you don’t inadvertently disclose third-party information. You should also seek legal advice if a parent is making a legal case against your 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.
The GDPR and Data Protection Act 2018 do not prevent, or limit, the sharing of information for the purposes of keeping children and young people safe. To effectively share information:
● you should be confident of the processing conditions, which allow you to store, and share, the information that you need to carry out your safeguarding role. Information which is relevant to safeguarding will often be data which is considered ‘special category personal data’, meaning it is sensitive and personal
● where you need to share special category personal data, you should be aware that the Data Protection Act 2018 includes ‘safeguarding of children and individuals at risk’ as a condition that allows practitioners to share information without consent
● information can be shared legally without consent, if you are unable to or cannot be reasonably expected to gain consent from the individual, or if to gain consent could place a child at risk
● relevant personal information can be shared lawfully if it is to keep a child or individual at risk safe from neglect or physical, emotional or mental harm, or if it is protecting their physical, mental, or emotional wellbeing
This article was originally written by Stephanie Mathivet, curriculum and standards manager at the Early Years Learning Alliance, and updated by Melanie Pilcher, quality and standards manager at the Early Years Alliance.