Information Sharing

This post should have been written far, far earlier as it covers a subject issue that runs through everything I’ve written on this blog. Information sharing is one of the most difficult subjects for many people as there are perceived conflicts left, right and centre: between legal restrictions on information sharing, professional guidelines about information sharing. Do they conflict, what if they do? One reason they may conflict, is because some confidentiality guidelines about the police are just plain wrong. See the links at the bottom of the page.

This post will focus on tactical, or job-specific, information sharing. There is more to be said about more wholesale organisational information sharing to build better joint responses which cross agencies. That will be for another day.

I have written a couple of information sharing protocols in the last ten years and read countless more of them. Broadly, they all say the same things and at the end of writing the main one that I did, I wondered about the point of it all. The document ended of with the following outline structure, just like all the other protocols I’d read:

  • Introductory remarks of broad principles and commitments of working together, etc., etc..
  • Excerpts from legislation and professional guidelines, including the Data Protection Act 1998 (DPA), the Human Rights Act 1998 (HRA) and the GMC / BMA / NMC guidelines.
  • Details on the administrative mechanisms by which the relevant organisations had agreed to share information – the design or agreement of a few forms or (secure) email arrangements.
  • Review processes for governance of the protocol’s operation
  • A list of contacts in each organisation for getting beyond barriers created by bureaucracy.

Meetings and training about information sharing were always interesting. Professionals are well aware that their positive decision to disclose information must be defendable against the frameworks that govern them and this gets you straight into the medical confidentiality discussion. Of course, the police are also privy to a host of confidential information – no less confidential than medical information. You have as much right to expect police officers to keep your previous convictions secret than your doctor to keep your medical history, but I came away with a perception that none of us understand the legal frameworks appropriately.

Of relevance to the NHS is the Caldicott Report. This report lead to the establishment in every NHS trust of a Caldicott Guardian to oversee issues about the sharing of “patient identifiable information” in the various ways that it flows between NHS organisations and between the NHS and non-NHS organisations. <;;<;; Please remember that “the NHS” is not one organisation.

DATA PROTECTION ACT 1998

Ultimately, this piece of legislation is the Information Sharing Protocol for the nation. Regardless of what your protocol says, you can, ultimately, be criminally prosecuted under the DPA for breaches of your duty around keeping certain information confidential. Interestingly, you can’t be prosecuted for failing to share information that could have been shared and that is perhaps why a senior police officer I know once wondered aloud how different the world would be if we had called this the “Data Sharing Act 1998”. Obviously the emphasis is “you can’t share unless you can justify it” rather than “here’s when and how you should share.”

This is of relevance because in many mental health homicide reviews, under-sharing of information has been criticised. Most notably for my own force following the killing of DC Mick Swindells in 2004, criticism of how quickly the NHS were able to access and then share mental health related risk information on a particular man, was held to have been especially problematic. It was also found that there were other, missed information-sharing opportunities before the critical events of that day. We know from other reviews that under-sharing of information has been the target of recommendations for review. I can’t find the example of where over-sharing of information was criticised. Certainly, if you review the enforcement website of the Information Commissioner, there have been no prosecutions of police or NHS professionals for over-sharing information to manage risks.

So actually, the DPA sets out an agenda where information can be shared. It divides all confidential information, or data, into two types: personal data and sensitive personal data.

  • Personal data is defined in s1(1)(e) of the DPA – “data which relate to a living individual who can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller.”
  • Sensitive personal data is defined in section 2 – “personal data consisting of information as to:
    (a) the racial or ethnic origin of the data subject,
    (b) his political opinions,
    (c) his religious beliefs or other beliefs of a similar nature,
    (d) whether he is a member of a trade union,
    (e) his physical or mental health or condition,
    (f) his sexual life,
    (g) the commission or alleged commission by him of any offence, or
    (h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.

The Act sets out in various schedules, information which all professionals reading this blog should know:

  • Principles which govern data sharing – see Part I of Schedule I.
  • Interpretation of those principles – see Part II of Schedule I.
  • ‘Conditions’ relevant to the first principle of data sharing for personal information – see Schedule II.
  • ‘Conditions’ relevant to the first principle for sensitive personal information – see Schedule III.

NB:  When ‘processing’ sensitive personal data, there must a justification from both schedule 2 and from schedule 3.

EXAMPLES

So organisations may share information where this is necessary to the statutory functions of other agencies. I always like to raise “Risk Assessment” as the example here. The police and the NHS often have to formally or dynamically risk assess situations to determine their responses and risk assessment is a statutory responsibility – under the Health & Safety At Work Act 1974. Information held by the police which is relevant to risk assessment being undertaken by the NHS is able to be shared, so that the NHS can make appropriate decisions about keeping the public and their staff safe. And vice versa: so! –

  • If the police detain someone under s136 MHA and we know from police intelligence or from convictions that the person has a particular history of violence in attacking NHS staff, that can be shared because it would be relevant to how NHS staff manage that the person within an NHS place of safety and keep staff safe.
  • In this situation I have previously said, “If you would be telling the custody sergeant something which is relevant to keeping that person or custody staff safe, you should be telling the PoS nurse the same thing for the same reasons.”
  • If the NHS want the police to enter a premises under a s135(1) warrant to detain someone for Mental Health Act assessment, the police have to decide whether to send a couple of ‘normal’ police officers or whether we will send extra officers and whether any of them may have specialist training or equipment. This could include Tasers, dog handlers, officers in protective equipment.
  • The information in each scenario needs to be detailed enough to be meaningful: saying, “He plays up a bit” could mean any number of things. Specifying verbal aggression that has never translated up into physical violence indicates different kinds of risk. Even physical aggression varies: was in ABH or GBH … did it involve weapons or not?

All of this is relevant to the sergeant or inspector who is determine number and nature of resources or the PoS nurse who has to ensure a safe, appropriate environment for a 136 assessment and unless we’ve properly shared relevant information, how are we going to get this right, except by chance? Well, we actually know that this has been wrong in the past and it has been at a cost in terms of lives and injuries.

CRIMINAL INVESTIGATION EXEMPTION

There is also a particular provision of the Data Protection Act which is relevant when the police are undertaking a criminal investigation. Section 29(1) DPA provides an exemption for information which is shared for “the prevention or detection of crime [or] the apprehension or prosecution of offenders”. This is where it can often get interesting!

I have written before about when, where and how to share information which could be relevant to a criminal investigation of someone suffering a mental health problem. Exchange of information to the police can be crucial to statutory decisions which we make around this. By way of example, an MHA assessment recently took place in police custody in my force area where the custody officer quite properly asked for various bits of information from the assessing professionals. They wanted to take a decision to admit the patient to hospital under the MHA, but the custody officer was considering asking the CPS to prosecute the individual regardless. This was because the offence was far from trivial, someone had been seriously hurt and it may well have been in the public interest to prosecute dependent upon the individual’s previous history and an assessment of the risk that this may present for absconding or further offences. It is, ultimately, a decision for the police and CPS about whether offenders are prosecuted or diverted from justice.

There was a total lack of information sharing, despite a DPA ‘notice’ being handed over – signed up by an inspector, as it must be – because of confidentiality. And yet, this confidential information – otherwise known for DPA purposes as ‘sensitive personal data’ – can be shared according to schedule 3 if it “is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings)”.

The final thing to say on information sharing, is that where it occurs in the context of established arrangements to manage risk on a multi-agency basis, the law around Data Protection and confidentiality still apply. this would cover MAPPA arrangements which are statutory provisions for public protection with regard to violent and sexual offenders, and would also extend to MARAC (domestic abuse) and Safer Estates arrangements. Occasionally, professionals have assumed that because of a formalised agenda and structure being implemented to jointly manage certain things, that it can be a free forum to talk openly. This is true only to an extent – the law still applies.

USEFUL LINKS

I’ll issue a warning about some of these links, because the content of some of it is just plain wrong! Be aware of this when making decisions.

  1. GMC confidentiality webpages.
  2. BMA confidentiality webpages.
  3. NMC confidentiality webpages.
  4. Information Commissioner’s Office.

Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England.  It doesn’t substantially alter the post but certain reference numbers have changed.  My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here.  The Code of Practice (Wales) remains unchanged.

______________________________________________________________________
The Mental Health Cop blog

Badgewon the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
was commended by the Home Affairs Select Committee of the UK Parliament.

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6 thoughts on “Information Sharing

  1. Totally agree with your basic points here. There is also the risk to the seriously ill person themself to take into account – risk of suicide is ~ 20 times higher than risk of homicide. Risk as victim of crime or as victim of accident is also greatly increased.

    There is case law on excessive/inappropriate disclosure, eg. –

    JANE CLIFT v SLOUGH BOROUGH COUNCIL [2010] EWCA Civ 1484

    … may constitute defamation and/or breach of art.8 rights, public bodies do not routinely have qualified privilege.

    However, looking at the circumstances of the above case there needs to be some pretty silly conduct before the law is breached.

    Unfortunately, some of the guidance from professional bodies is ‘generic’ (ie. largely oriented to physical health) and often fails to take into account the special circumstances of MH cases.

    1. I’m a psychoterapist in a children’s mental health program
      in the U.S. Each year, we are retrained in the Health Information
      Privacy and Portability Act (HIPPA). There are also stricter
      federal statutes that apply to substance abusers, and a wide
      assortment of varying state laws. Despite these so called
      protections against stigma, the exception to nonconsent release of
      information that stigmatizes the most frequently has to do with
      billing for services. I work in a nonprofit agency, so most of our
      consumers are covered by Medicaid. But, if a person with private
      insurance is served, we bill which discloses all, and sometimes the
      company that hold the coverage and for whom the person works, finds
      out “somehow” that an employee is in mental health treatment. I
      used to work with a fellow (he was IT) who went to treatment for
      Bipolar Disorder. Two months later, he no longer worked there, and
      this corporate behavior was by a mental health center that openly
      advocates for reduction of stigma, access to treatment, etc. I’m
      almost 62 and have dealt with an mild anxiety disorder all of my
      life, a genetic predisposition that has affected most of my family
      and inherited from the maternal side. My mom took a benzo to
      function. I would be afraid to go to treatment in my country, and
      not only because I don’t want to become addicted to a benzo (even
      though at my age it wouldn’t do much harm), but I would be
      concerned about losing my job. Unlike (I believe) in the U.K., the
      insurance plan costs for a company are based on accumulated
      individual claims per fiscal year. So, companies are motivated to
      get rid of anybody that raises insurance costs, but has a harder
      time if it is physical health, especially if its obvious, such as a
      physical disability, because there are other laws that protect
      against discrimination based on age and disability. To make a claim
      for a mental health problem would be like an antelope walking
      slowly in range of a hungry lion. I am also the creator of Lacy
      Dawn Adventures, a project that produces Science Fiction / Fantasy
      with author proceeds donated to prevent child abuse. My published
      works have always included mental health issues, as well as satire
      that addresses race, global economy, religion, war, drug, etc.
      Rarity from the Hollow is my first novel and is now available. It
      was published in Leeds, in part, because Piers Anthony, a very
      famous fantasy author, told me that no American House would touch
      it because it uses the word “dildo” in the first chapter. In case
      anybody is interested, following is an excerpt of a book review and
      a sample. Rarity received several (lots) of glowing book reviews
      available on request. I hope that the following is relevant to your
      interests. RARITY FROM THE HOLLOW ROBERT EGGELTON
      http://www.lacydawnadventures.com 411 Pages Science Fiction/Fantasy ISBN:
      1907133062 / ISBN-13: 9781907133060 Dog Horn Publishing, Leeds,
      England To purchase:
      http://www.amazon.com/Rarity-from-the-Hollow-ebook/dp/B007JDI508
      http://www.lulu.com/shop/robert-eggleton/rarity-from-the-hollow/paperback/product-20203207.html
      http://www.doghornpublishing.com/books/rarity_from_the_hollow.html
      Author proceeds are donated to prevent child abuse in West
      Virginia. Review by Adicus Ryan Garton (excerpt as intro), Atomjack
      Science Fiction Magazine
      http://susurruspress.com/Atomjack/7/current.htm “Imagine Wizard of
      Oz and Hitchhiker’s Guide to the Galaxy smashed together and taking
      place in a hollow in the hills of West Virginia. Now you have an
      idea of what to expect when you sit down to read Rarity From the
      Hollow….” …unabashed, unashamed exploration of the life of young
      Lacy Dawn, as she learns that she is the savior of the universe.
      The naked, genderless android, Dot-com… Add her abusive father, her
      weak-willed mother, a sexually-abused ghost for a best friend…trees
      that talk to her, a dog that can communicate telepathically with
      cockroaches and so much more. There is so much to this story, and
      its writing is so unblinkingly honest…spares us nothing…her father
      beating her and her mother, the emotions…the dark creeping insanity
      that eats away at her Iraq-veteran father, and the life in general
      of people too poor, too uneducated to escape. In part, it is a
      grueling exposition of what children endure when …abused. …the only
      way…to escape is to learn that she is the savior… strong, tough,
      smart—all those attributes that any child should have—and she
      reminds us that children are survivors, adaptive and optimistic.
      But don’t think you’re going to be reading something harsh and
      brutal and tragic. This book is laugh-out-loud funny at times,
      satiric of almost everything it touches upon…The characters from
      the hollow and from the planet Shptiludrp (the Mall of the
      Universe) are funny almost to the point of tears. …It’s
      absolutely fantastic….” Adicus Ryan Garton is the editor of the
      online science fiction magazine Atomjack. He is currently teaching
      English in South Korea. Email: Adicus Ryan Garton First Chapter:
      Cozy in Cardboard Inside her first clubhouse, Lacy Dawn glanced
      over fifth grade spelling words for tomorrow’s quiz at school. She
      already knew all the words in the textbook and most others in any
      human language. Nothing’s more important than an education. The
      clubhouse was a cardboard box in the front yard that her
      grandmother’s new refrigerator had occupied until an hour before.
      Her father brought it home for her to play in. The nicest thing
      he’s ever done. Faith lay beside her with a hand over the words and
      split fingers to cheat as they were called off. She lived in the
      next house up the hollow. Every other Wednesday for the last two
      months, the supervised child psychologist came to their school,
      pulled her out of class, and evaluated suspected learning
      disabilities. Lacy Dawn underlined a word with a fingernail. All
      she needs is a little motivation. Before they had crawled in, Lacy
      Dawn tapped the upper corner of the box with a flashlight and
      proclaimed, “The place of all things possible — especially you
      passing the fifth grade so we’ll be together in the sixth.” Please
      concentrate, Faith. Try this one. “Armadillo.” “A, R, M, … A … D,
      I, L, D, O,” Faith demonstrated her intellect. “That’s weak. This
      is a bonus word so you’ll get extra points. Come on.” Lacy Dawn
      nodded and looked for a new word. I’ll trick her by going out of
      order – a word she can’t turn into another punch line. “Don’t talk
      about it and the image will go away. Let’s get back to studying,”
      Lacy Dawn said. My mommy don’t like sex. It’s just her job and she
      told me so. Faith turned her open spelling book over, which saved
      its page, and rolled onto her side. Lacy Dawn did the same and
      snuggled her back against the paper wall. Face to face — a foot of
      smoothness between — they took a break. The outside was outside.
      At their parents’ insistence, each wore play clothing — unisex
      hand-me-downs that didn’t fit as well as school clothing. They’d
      been careful not to get muddy before crawling into the box. They’d
      not played in the creek and both were cleaner than the usual
      evening. The clubhouse floor remained an open invitation to anybody
      who had the opportunity to consider relief from daily stressors.
      “How’d you get so smart, Lacy Dawn? Your parents are dumb asses
      just like mine.” “You ain’t no dumb ass and you’re going to pass
      the fifth grade.” “Big deal — I’m still fat and ugly,” Faith said.
      “I’m doing the best I can. I figure by the time I turn eleven I can
      fix that too. For now, just concentrate on passing and don’t become
      special education. I need you. You’re my best friend.” “Ain’t no
      other girls our age close in the hollow. That’s the only reason you
      like me. Watch out. There’s a pincher bug crawling in.” Lacy Dawn
      sat almost upright because there was not quite enough headroom in
      the refrigerator box. She scooted the bug out the opening. (delete
      here for word count) Faith watched the bug attempt re-entry, picked
      it up, and threw it a yard away into the grass. It didn’t get hurt.
      Lacy Dawn smiled her approval. The new clubhouse was a sacred place
      where nothing was supposed to hurt. “Daddy said I can use the tarp
      whenever he finishes the overhaul on the car in the driveway. That
      way, our clubhouse will last a long time,” Lacy Dawn said. “Chewy,
      chewy tootsie roll. Everything in this hollow rots, especially the
      people. You know that.” “We ain’t rotten,” Lacy Dawn gestured with
      open palms. “There are a lot of good things here — like all the
      beautiful flowers. Just focus on your spelling and I’ll fix
      everything else. This time I want a 100% and a good letter to your
      mommy.” “She won’t read it,” Faith said. “Yes she will. She loves
      you and it’ll make her feel good. Besides, she has to or the
      teacher will call Welfare. Your daddy would be investigated —
      unless you do decide to become special education. That’s how
      parents get out of it. The kid lets them off the hook by deciding
      to become a SPED. Then there ain’t nothing Welfare can do about it
      because the kid is the problem and not the parents.” “I ain’t got
      no problems,” Faith said. “Then pass this spelling test.” “I
      thought if I messed up long enough, eventually somebody would help
      me out. I just need a place to live where people don’t argue all
      the time. That ain’t much.” “Maybe you are a SPED. There’s always
      an argument in a family. Pass the test you retard,” Lacy Dawn
      opened her spelling book. Faith flipped her book over too, rolled
      onto her stomach and looked at the spelling words. Lacy Dawn handed
      her the flashlight because it was getting dark and grinned when
      Faith’s lips started moving as she memorized. Faith noticed and
      clamped her lips shut between thumb and index finger. This is
      boring. I learned all these words last year. “Don’t use up the
      batteries or Daddy will know I took it,” Lacy Dawn said. “Alright
      — I’ll pass the quiz, but just ’cause you told me to. This is a
      gamble and you’d better come through if it backfires. Ain’t nothing
      wrong with being a SPED. The work is easier and the teacher lets
      you do puzzles.” “You’re my best friend,” Lacy Dawn closed the
      book. They rolled back on their sides to enjoy the smoothness. The
      cricket chorus echoed throughout the hollow and the frogs peeped.
      An ant attempted entry but changed its direction before either
      rescued it. Unnoticed, Lacy Dawn’s father threw the tarp over the
      box and slid in the trouble light. It was still on and hot. The
      bulb burned Lacy Dawn’s calf. He didn’t mean to hurt me — the
      second nicest thing he’s ever done. “Test?” Lacy Dawn announced
      with the better light, and called off, “Poverty.” “I love you,”
      Faith responded. “Me too, but spell the word.” “P is for poor. O is
      for oranges from the Salvation Army Christmas basket. V is for
      varicose veins that Mommy has from getting pregnant every year. E
      is for everybody messes up sometimes — sorry. R is for I’m always
      right about everything except when you tell me I’m wrong — like
      now. T is for it’s too late for me to pass no matter what we do and
      Y is for you know it too.” “Faith, it’s almost dark! Go home before
      your mommy worries,” Lacy Dawn’s mother yelled from the front porch
      and stepped back into the house to finish supper. The engine of the
      VW in the driveway cranked but wouldn’t start. It turned slower as
      its battery died, too. Faith slid out of the box with her spelling
      book in-hand. She farted from the effort. A clean breeze away, she
      squished a mosquito that had landed on her elbow and watched Lacy
      Dawn hold her breath as she scooted out of the clubhouse, pinching
      her nose with fingers of one hand, holding the trouble light with
      the other, and pushing her spelling book forward with her knees.
      The moon was almost full. There would be plenty of light to watch
      Faith walk up the gravel road. Outside the clubhouse, they stood
      face to face and ready to hug. It lasted a lightning bug statement
      until adult intrusion. “Give it back. This thing won’t start,” Lacy
      Dawn’s father grabbed the trouble light out of her hand and walked
      away. “All we ever have is beans for supper. Sorry about the fart.”
      “Don’t complain. Complaining is like sitting in a rocking chair.
      You can get lots of motion but you ain’t going anywhere,” Lacy Dawn
      said. “Why didn’t you tell me that last year?” Faith asked. “I’ve
      wasted a lot of time.” “I just now figured it out. Sorry.” “Some
      savior you are. I put my whole life in your hands. I’ll pass
      tomorrow’s spelling quiz and everything. But you, my best friend
      who’s supposed to fix the world just now tell me that complaining
      won’t work and will probably get me switched.” “You’re complaining
      again.” “Oh yeah,” Faith said. “Before you go home, I need to tell
      you something.” To avoid Lacy Dawn’s father working in the
      driveway, Faith slid down the bank to the dirt road. Her butt
      became too muddy to reenter the clubhouse regardless of need. Lacy
      Dawn stayed in the yard, pulled the tarp taut over the cardboard,
      and waited for Faith to respond. “I don’t need no more
      encouragement. I’ll pass the spelling quiz tomorrow just for you,
      but I may miss armadillo for fun. Our teacher deserves it,” Faith
      said. “That joke’s too childish. She won’t laugh. Besides, dildos
      are serious business since she ain’t got no husband no more. Make
      100%. That’s what I want.” “Okay. See you tomorrow.” Faith took a
      step up the road. “Wait. I want to tell you something. I’ve got
      another best friend. That’s how I got so smart. He teaches me
      stuff.” “A boy? You’ve got a boyfriend?” “Not exactly,” Lacy Dawn
      put a finger over her lips to silence Faith. Her father was hooking
      up a battery charger. She slid down the bank, too. He probably
      couldn’t hear us, but why take the chance. A minute later, hand in
      hand, they walked the road toward Faith’s house. “Did you let him
      see your panties?” Faith asked. “No. I ain’t got no good pair.
      Besides, he don’t like me that way. He’s like a friend who’s a
      teacher — not a boyfriend. I just wanted you to know that I get
      extra help learning stuff.” “Where’s he live?” Lacy Dawn pointed to
      the sky with her free hand. “Jesus is everybody’s friend,” Faith
      said. “It ain’t Jesus, you moron,” Lacy Dawn turned around to walk
      home. “His name’s DotCom and….” Her mother watched from the middle
      of the road until both children were safe.

  2. very interesting post must admit you could ask 10 different people at work and get 10 different responses, training does seem to focus on keeping data secure, preventing leaks and info getting into public domain rather than what and when you can share. Not a police matter but I do wonder if this might change if the social worker who was stabbed after her assailant had threatened to attack wins her appeal against the Trusts that choose not to share this information with her.

    1. I think this is the ‘Selwood’ case. Just for your information the appeal has ruled in favour of the social worker. The NHS trusts CAN have a liability in relation to the actions of a third party – the patient. Key point is that the social worker was working with them in a formal partnership arrangement, therefore expecting them to inform her was fair, reasonable etc. The ruling also suggests that the trusts are public bodies and therefore if she had died then article 2 rights would be engaged – ie they have to take all reasonable measures to preserve her life, as in your ‘Osman warnings’

      Lesson seems to be – get into a formal partnership with your NHS trusts, then they have to behave reasonably and fairly towards you. Points about art.2 have big implications and I hope police officers make use of this ruling.

      CLAIRE SELWOOD v (1) DURHAM COUNTY COUNCIL (2) TEES, ESK & WEAR VALLEYS HNS FOUNDATION TRUST (3) NORTHUMBERLAND, TYNE & WEAR NHS FOUNDATION TRUST [2012] EWCA Civ 979

  3. Would very much like a to hear which particular parts of the guidance you link to you feel is wrong.
    I do feel that Doctors often call upon medical confidentiality at times which seem to suit them, often saying they have to seek advice from the MDU or BMA before disclosing. These appear quite idiosyncratic because on other occasions they can be quite cavalier.
    The police on the other hand are fairly consistent and helpful as long as you know the right form to fill in.

  4. Can the NHS mental health services check your criminal record history without your consent? .Can a social worker call the police and ask if you have had recent contact with the police?
    Do they have to ask for your consent? Can social workers or health professionals ask police for information about someone in broad general terms?

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