§ The Parliamentary Under-Secretary of State for Scotland (Mr. Michael Forsyth)
I beg to move,That the draft Access to Personal Files (Social Work) (Scotland) Regulations 1989, which were laid before this House on 16th January, be approved.The Government have liberalised access to computer records by making orders under the Data Protection Act 1984. This measure was followed in 1987 by the Access to Personal Files Act, promoted by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), whom I am delighted to see in the Chamber. It made provision for access in a number of areas to records kept manually or in any other non-computerised form.
The Government gave a general commitment to develop access to personal information on manual records in certain areas in a controlled and evolutionary way. There must, however, be checks and balances in any access arrangements to ensure that individual rights are respected and that public-sector authorities can continue to discharge their legal responsibilities towards the people they serve. That is the basis upon which the range of measures we have in mind will proceed.
I will sketch in some steps we are taking on access to personal records in public sector services. The Government favour the principle that NHS patients have the right to see what has been written about them. We gave a commitment to this effect during the passage of the 1987 Act. We believe that what is needed is a voluntary code of practice on access to those records, and consultations have taken place on a United Kingdom basis with the relevant professional and other interests. No agreement has yet been reached. We strongly prefer the voluntary route, and I hope that the discussions will be concluded satisfactorily.
We have consulted widely on access to school pupil records and further education student records. We believe that parents should have a right of access to pupil records and that pupils or students over 16 should also have an independent right. Last year., our consultations on access in the further education sector showed general support for the Government's proposals. Before making regulations we will have to consider carefully a number of complex technical points raised by consultees. We will also want to take into account the results of separate consultations on school pupil records.
In December, we issued a consultative paper on access to housing records. Local authorities, new towns, the Scottish Special Housing Association, Scottish Homes, the Confederation of Scottish Local Authorities and other interested bodies have been consulted. The responses are currently being considered.
The present regulations apply the principle of access to social work records held by local authorities. The regulations should be brought into force on 1 April. Local authorities have been aware of our plans for some time and some have been working towards more open access as a matter of good professional practice. The proposed timetable will allow authorities to adjust their procedures and, where necessary, train staff. The regulations provide for access, subject to certain safeguards. Those safeguards reflect circumstances in which it would not be right to grant access to all the available information on 983 individuals. It should be exceptional for information to be withheld and, even where some is withheld, it should be possible to release most of the available information.
How will it work in practice? Following a request from an individual, a local authority will have to tell him whether it holds "personal information" about him and give him access to it. The definition of "personal information" in the 1987 Act includes expressions of opinion, but no indication of the intentions of the authority towards the individual.
The right to access may be satisfied either by supplying an individual with a copy of the personal information or by some other means, such as letting him see the information. If, however, the individual, having seen the information requires a copy of it, he must be given one. And, if any of the information is not intelligible without explanation, the individual is entitled to that explanation.
Applications for access must be in writing. In addition, authorities will be able to charge a fee of up to £10 for giving access. Authorities should take account of an applicant's ability to pay. Authorities are not obliged to comply with an access request unless they receive the information necessary to establish the identity of the applicant and to locate the information he seeks. Where information on the record could lead to the identity of a third party being revealed or being identified as its source, the local authority must notify the third party within 14 days of receipt of a request for access and seek his consent to access being given. "Third party", in this context, does not include a health professional or someone employed by, or providing a service for reward to, the local authority. Authorities have 40 days from the date of receiving the request or obtaining the necessary further information or consent already referred to, to comply with it.
There are exemptions from the general provisions on access. Some of the information held may contain material provided by a health professional. The local authority will have to notify the health board or the health professional—if the individual is not employed by a health board—within 14 days of receiving the request. Where the health board or the health professional says that access should not be given to some or all of the information, the local authority cannot grant access. This would happen where access might cause serious harm to the physical or mental health of the individual or another person, or where access would let a third party be identified—other than a health professional. That also applies to information which comes from the reporter to the children's panel.
The reporter's job depends on a free flow of information to him from the police and other agencies, including health professionals. The reporter will often have an interest in a child or children of families who are involved with those other agencies and where sensitive and confidential family issues are at stake. For example, the police may be pursuing criminal investigations against the parent of a child whose case is being examined by the reporter.
Over the years, reporters have built up good relationships with other agencies that have been prepared to share their information about families in order to help the reporter make the fullest assessment of a child' 984 situation. That relationship could be prejudiced if the social work department disclosed information inappropriately.
It seems sensible, therefore, to make the social work department get the reporter's approval to disclose any information which comes from him. The reporter must apply tests, including those of serious harm and identity of third parties, broadly similar to those required by social work authorities.
The local authority itself may withhold information in certain circumstances. Those include the risk of serious harm to the health or emotional condition of the individual or a third party. Withholding information on that ground would be exceptional. Local authorities cannot disclose information about or provided by third parties without their consent unless the information can be made anonymous. If the authority does not receive the third party's consent within the time limit, it must give access to as much information as possible without revealing the other person's identity or the fact that he is the source of the information.
Individuals can ask for their records to be changed if they feel that the personal information is wrong. Individuals can ask for a review by the local authority of any decision taken to withhold access completely or partially or where requests to change the records are rejected.
These regulations and the data protection orders provide individuals with comprehensive rights of access, subject to certain specified safeguards, to local authority social work records. They mark the first of a number of steps towards extending the area of service to which access to personal information will apply.
I commend the regulations to the House.
§ Mr. Sam Galbraith (Strathkelvin and Bearsden)
First, I pay tribute to the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) for the Bill of which the regulations form a subsequent part. I was not in the House when that Bill passed through it, but I have read Hansard, from which it is clear that the hon. Member pursued the matter with considerable vigour and attention to detail. It is a tribute to the hon. Gentleman and to the House that the Bill is now on the statute book.
Turning to the regulations, I acknowledge the Minister's consultation with various parties before the draft circulars were prepared. However, I understand that there was some slight difficulty over the regulations applying to the reporters to the children's panels. I understand that those regulations were inserted at a later date. Today I received a representation from the reporter to the children's panel in Tayside, a Mr. Meek, who was worried whether the word "individual" should also apply to children who are also able to refuse the question on informed consent.
However, I welcome the consultation that took place before the regulations were produced. Because we agree broadly with the regulations, we shall not vote against them. We welcome them because, although considerable work will be involved, social workers agree that they will lead to better records and better decisions by social workers.
The more I read the regulations, the more I am impressed by their complexity. Social work records are 985 voluminous and extremely detailed. They contain a mixture of opinion and fact and a vast amount of third party information. The combination of those factors makes social work records difficult to open up widely to the public.
It is slightly incongruous that we are talking about social work records without also discussing medical case records, which are not so detailed. They are usually smaller and mostly factual, and rarely contain non-medical third-party opinions. It would be logical and easier for us to have discussed them in the first place. However, if copies of medical records had been made available to patients, many of the problems dealt with by the regulations would not exist, because the patients would already possess copies of the information.
Therefore, we should remain committed—as the Labour party is, and I am sure the hon. Member for Roxburgh and Berwickshire is—to opening up medical records as well. I shall be interested to hear what the Minister has to say about that. There are considerable parallels between the records we are discussing tonight and medical case records. We remain committed to that, but only after extensive consultation, and with the agreement of the medical profession ensuring all the necessary safeguards.
During the passage of this Bill, Ministers constantly came to the Dispatch Box and spoke of the discussions that they were having with the medical profession on this matter. Could the Minister let us know just how far they have gone? When the Access to Medical Reports Bill was being debated, the Minister said:The House will recall that, during the passage of what is now the Access to Personal Files Act in the previous Parliament, the Government gave an undertaking to enter into talks with the medical profession, with a view to achieving substantive and timely progress in opening up medical records on a non-statutory basis".—[Official Report, 12 February 1988; Vol. 127, c. 665.]Perhaps the Minister could let us know what progress has been made in these talks. Are we any further forward in opening up medical records on a non-statutory basis?
While we are talking tonight about social work records, I do not think that we can allow medical records to be taboo. If we are to give patients increased flexibility, greater choice and control over their medical care, they must have a copy of their own case records.
On this subject, I echo the words of my hon. Friend the Member for Great Grimsby (Mr. Mitchell) who said in the debate on the Access to Personal Files Bill:In the field of health it is especially important to redress the odds that are presently in favour of the medical profession and turn them in favour of the consumer. This is part of the general idea of giving people power. They have power to choose as consumers and they want that power in all aspects of their lives. We have a duty to give them that power and that applies especially in medical matters"—as I understand myself—where there is a kind of awe of the medical profession that can shelter incompetence and inadequacy."—[Official Report, 20 February 1987; Vol. 110, c. 1197.]We say, "Hear, hear," to these words.
§ Mr. Galbraith
The hon. Member can read it in the morning in the Official Report because I want to get on now, so that other hon. Members can perhaps catch your eye, Madam Deputy Speaker.
986 I come now specifically to the regulations, although I will intertwine my comments on them with parallels on medical case records. I deal first with the charge of £10. The Minister and I will agree that, to both of us, £10 is probably not all that much. I thought I heard one of my hon. Friends at the back of me disagreeing. Really, though, £10 is not that much. The Minister knows that to a member of Muirfield golf club £10 would not be very much to ask. He will appreciate, however, that the sort of people who generally have social work records are often on income support; and if one is on income support, a charge of £10 is excessive.
I realise that local authorities need not make that charge, and I think that Strathclyde will probably make no charge, but I should have preferred the £10 charge not to be part of this. There should be no financial barrier, no practical or theoretical barrier, in gaining access to one's files.
The lead-in time is rather short. This starts on 1 April. The Minister said that it will give time for the necessary training and preparation of new files. It may be true that there will be time, but there is also another area to be dealt with—discussion with other parties on the third party's access to the information. It has been the experience of social work departments that, when they go to other bodies such as the police or children's panels or health boards, those bodies are unaware of what is happening. It will take a considerable amount of time for them to pick up on all the regulations, and that will make the lead-in time rather short. We could have done with extending it a little further.
On the definition of "serious harm", I am glad to see my hon. Friend the Member for Aberdeen, South (Mr. Doran) who will perhaps, if he can catch your eye, Madam Deputy Speaker, give a lawyer's viewpoint on this question. It has been said to me that this will be of great benefit to the profession to which my hon. Friend belongs. It is difficult to decide what serious harm is, but I think that we could do with a slightly wider definition.
Access to the records could be prevented by that test. I know that from my own profession. In discussions about whether medical records should be opened up, someone almost always says, "It would be difficult to do that because it might produce serious harm in the patient." I always worry about that excuse. I have been practising for many years now and I cannot think of one case in which I could not have allowed access on the ground that to do so would have caused serious harm to the patient. I am not saying that that never happens in other specialties, although I should have thought that if serious harm occurred, it would have occurred in my specialty. I am not saying that we do not need safeguards: I merely say that, although the danger of serious harm is often used as a reason for refusing access to files in my profession, I could not have used it in the case of any of my patients. It would help if the Government could produce further guidance on what the definition of serious harm entails.
Social work records are complex and voluminous. They are full of opinions, often from third parties. That creates problems with the 40-day rule, which says that a social work department has to give a reply within 40 days. Certain difficulties will arise if a department has to consult third parties. Suppose that it consulted the health board and found that the consultant was away on holiday yet again. It would then take a considerable length of time to obtain his opinion. But under the regulations, if no reply 987 is given within 40 days, it is accepted that the information can be made available. Information may therefore be made available that the consultant would not have wished to be made available. The 40-day period may produce problems—although perhaps not insurmountable problems—and we should be considering it.
Let us consider the complexity of the process and the number of people who have to be involved. Let us take what is considered a simple social work case—a case of child abuse.
§ Mr. Galbraith
The diagnosis is simple, but from a social work point of view a child abuse case is probably the most complex type of case there is. Numerous third parties are involved, including the police force, a general practitioner, a community nurse, the procurator fiscal, a community health specialist, a health visitor, a district nurse and a voluntary organisation. All of them will have to be consulted and a review of all documents and registers will have to be carried out by the senior manager. A decision will have to be made on the basis of the serious harm criterion in the light of all that information. There will have to be counselling for the individual, to assist him in coming to terms with the information. There will have to be support for the staff, legal advice and the consideration of the possibility of appeal. That shows the complexity of what is involved.
That very complexity bears with it certain financial burdens, which will be thrown on social work departments—expenditure not just on training but on preparing the reports. When the Data Protection Act was introduced, there were very few requests, whereas in a three-month pilot scheme involving 11,000 records in Strathclyde social work department there were 22 requests. If we round that figure up over the year for complex cases, it means a cost to Strathclyde social work department of about £1.5 million—aconsiderable financial resource.
We do not know exactly what financial resource will be involved, because we do not know how many requests there will be; there may be far fewer than in the pilot scheme, or there may be far more. The social work departments will monitor the costs. Will the Minister look favourably on any requests if it is found that the financial burdens are considerable?
I have raised some important points about the regulations, and I know that some of my hon. Friends will wish to consider them further. Nevertheless, we welcome the regulations—in the spirit of opening up information and giving individuals greater responsibility, and for the good of society as a whole.
§ Mr. Bill Walker (Tayside, North)
The hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) illustrated the complexity of this matter. I compliment my hon. Friend the Under-Secretary on again showing how good he is at consultation, discussion and negotiation before presenting regulations. He and I will agree that anyone who thinks that simply bringing in regulations will be a solution to this complex problem has made no attempt to study what is involved.
988 The hon. Member gave an honest and frank account of the position as he sees it. I do not disagree with anything he said. We all welcome the theory, but we have reservations about the practice. In the more complex cases, it will be very difficult to give the individual what he wants because of all the third parties who will be involved.
By its very nature, social work involves many people. I have never been a champion of social workers. I have always felt that there are some things with which they should not be dealing. It is not their fault, but it has arisen because of the powers which Parliament has given to local authorities. We have created vast empires which are not always to the advantage of those in need.
I am not condemning social workers. Many of them are highly motivated, and we should understand the problems that they face at the sharp end. I have grave reservations about whether we are achieving what the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) initially wanted, but I welcome the fact that we are moving forward and that individuals may get access to more information which affects them personally. Hopefully, it will help people to come to terms with their problems. On that basis, I welcome the regulations.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
In response to the hon. Member for Tayside, North (Mr. Walker), I would say that I have great trust in and respect for the overwhelming majority of social workers. They have to take on the burdens that others leave on their doorsteps. I say that not because I am married to a senior social worker who has on occasion had to take into care young children who have been subject to physical and/or sexual abuse. Social workers take their duties very seriously.
I welcome the regulations, but they are an appalling piece of work. The English is dreadful. Many of the paragraphs have to be read and re-read. Fortunately, a fairly useful explanatory note is attached. I should like definitive answers to problems that I have encountered.
Under the heading "Exemptions from access to other information", regulation 10(3) refers to some information being withheld and the need in some cases to withhold information. I ask the Minister who is to be the censor where this information is concerned. Is it to be the social worker who has dealt with the applicant in the past or the manager of the department in which the social workers work? This one paragraph presents formidable problems for social workers.
Another question concerns whether the information is always to be given to the applicant in documentary form. Can a social worker refuse to give information to a client who is well known to him or her and seeks information over the telephone or in a face-to-face interview in an office?
With regard to regulation 5, where another individual is concerned, I ask the Minister where a young person stands who makes an application at the local Department of Social Security office for income support because he or she has been driven from the family home by the violence inflicted on him or her, by parents or the partner of a parent, and the official requires evidence of the domestic state of affairs? What happens to that young person, who is presumably known to a social worker, when he or she seeks information to strengthen or substantiate a claim for 989 income support? In such a case, will the social worker have to approach the person who has inflicted or threatened to inflict violence upon that person seeking help?
Another example is that of the estranged couple where, say, the wife leaves the family home, again perhaps because of incidents involving domestic violence, and seeks help from the local housing department and the DSS office and is told that she needs evidence to support her application for assistance from these officials. In this case, will a social worker be allowed to approach the partner who has threatened violence? What will happen if, in a case like this, the violent partner refuses to co-operate with the social worker? What sanctions can a social worker impose on a third party who refuses to co-operate in cases of this kind?
I do not need to remind the Minister that such cases are not altogether rare in Scotland, I regret to say. These are important questions, particularly concerning the refusal of a named individual to consent to information being given to an applicant. I look forward to hearing the Minister's replies to these questions.
§ Mr. Allan Stewart (Eastwood)
I had intended to ask the Minister a question similar to that put by the hon. Member for Greenock and Port Glasgow (Dr. Godman). I congratulate the Under-Secretary on the clarity of his explanation of these complex regulations. Without complicating the question that the hon. Member for Greenock and Port Glasgow asked, may I ask my hon. Friend to comment on the position of estranged couples where one is in Scotland and one is in England? I raise the matter because of a constituency case, and clarification of the point would be appreciated.
My hon. Friend explained the progress that the Government had made on access, particularly in relation to education. If my hon. Friend referred to housing regulations, I may have missed his remarks. I understand that consultation on access in that area is taking place.
Do the regulations affect hon. Members? I gather that we have no rights of access to information under the regulations, although we sometimes get confidential information when those in charge of it feel it appropriate because they can regard us as people who will respect their trust and confidence. Presumably we could get information if we acted, in effect, as an appointed agent for somebody under the regulations. Hon. Members often become closely involved with social workers in individual cases, so if the Under-Secretary would comment on the way in which, if at all, the regulations affect us, that would be helpful.
§ 11.57 pm,
§ Mr. Archy Kirkwood (Roxburgh and Berwickshire)
It is a pleasure to take part in the debate. These are the first regulations to reach the Floor of the House since the passage of the Access to Personal Files Act 1987. I agree with what has been said about the complexity of some of the language that is now used; the original concept was simple and crystal clear in setting out what we were trying to achieve.
While I appreciate the difficulties involved in getting the checks and balances right, I have some misgivings about the detail of the regulations, apart from the complexity of the language. The Government seem to have made the 990 mistake of trying to maintain common provisions between the regulations that govern access to manual records, with which we are dealing tonight, and the access provisions that relate to computer-stored information under the data Protection Act 1984.
I have always maintained that the two types of records are entirely different. Individuals have had access since 1984 to the sort of information that will be stored typically on computer and electronic files. But the type of information that we are discussing—manually stored information will—still, even looking into the fairly far future, be stored manually, even as we become a more electronically geared society. In social work departments there will always be a need for hard copy, manilla files which, as the Under-Secretary said, will be voluminous and of a quite different character from the electronically stored information that is covered by the Data Protection Act. Of course there is a need to keep common provisions, because we want to keep life as simple as we can, but I think that the Government were wrong to insist that the same provisions that governed the Data Protection Act should be used in governing access to manually stored files.
I entirely agree with the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) that there is a suspicion that the medical profession is backsliding—ld say it is no coincidence—on access to medical files and people's individual medical records.
I think that the BMA was right to ask for extra time. At its conference two years ago it was on the point of agreeing to adopt access to medical reports as a matter of course. However, it has moved back from that point, and I am extremely worried about that. I do not think that the Government can hide behind the need to get a voluntary scheme up and running if that scheme is going to take too long to achieve.
Has the Minister in mind a timetable within which he thinks it would be reasonable to try to achieve a voluntary scheme? If he can achieve it I should certainly be prepared to let it run and see how it operated, and if it operated reasonably well I should be prepared to countenance leaving it on a voluntary basis. However, if the medical profession really digs in its heels and makes life difficult, the Government may have to resort to statutory legislation and regulations such as we are discussing. The Minister should have a clear idea not to take five, three or even two years to make up his mind about that.
Section 2(4) of the Access to Personal Files Act explicitly rules out retrospection. That is right and proper because, as the House will know, after 1 April, and only then, individuals will have a new right of access. The social work profession has that much time to change its practice—many areas have already done so—to make sure that files created after that date are made readily and easily accessible. An absolute bar on retrospection and a rigid enforcement of the provision in section 2(4) would make access of limited use to some very specific categories of people. I am thinking, for example, of children who were formerly in cares and I think that a local authority faced with an application from someone who was formerly in care, should go beyond the minimum requirements laid down in the parent Act and these regulations and should be allowed flexibility. I hope that any guidance practice notes from the Scottish Office dealing with that aspect of the regulations will reflect my view.
991 The House should be aware that there is no bar on retrospection and access to social work records under the Data Protection Act 1984 and that is something of an anomaly, although I understand the need to give a certain amount of protection, and a line has to be drawn somewhere. At that point the regulations come into force, because otherwise there would be havoc, leading to some of the expenses that the hon. Member for Strathkelvin and Bearsden referred to. There is a need for flexibility in applying retrospection under the regulations.
I endorse what the hon. Member for Strathkelvin and Bearsden said about fees, because the £10 maximum charge, which is of course again a reflection of the charges made under the Data Protection Act, will put many people off if it is charged in full. I hope that the Scottish Office will give guidance to local authorities on that matter. I remind the House that the Department of Social Security, that well-known enlightened institution, makes no charge to people who want access to computerised social security records. If the DSS can do that under the Data Protection Act, I hope that Scottish local authorities will do the same.
If local authorities make full use of maximum charges, they will not only be able to charge £10 for access to manually stored records but £10 for computer-stored records. In many cases one file will straddle manually and electronically stored files, and access may cost £20, which would be a bad thing.
Access should be of mutual benefit to the practitioners in the profession and the clients, and I hope that the regulations will be implemented in that spirit. I know from my experience in drawing up the parent Act that many local authorites, particularly in England and Wales, are far ahead of the regulations, with successful schemes up and running which allow access free of charge. I hope that that will be borne in mind.
I understand that future cases must be extremely sensitively handled but the House should know that the provision on opinions being disclosable but intentions being withheld was forced on us by the Government and the wording reflects that of the Data Protection Act. It is regrettable that it is here, but it is, and I hope that it will be applied sensitively.
I fear that there may be some problems about the stipulated compliance period for local authorities. I do not disagree with anything that the hon. Member for Strathkelvin and Bearsden said, but I take a slightly different perspective—that of the applicant. Local authorities will have substantial problems. In my part of the world they are much smaller than some of the social work departments in the west of Scotland. But 40 days within which to comply with the regulations is a long delay.
If I read the regulations correctly—I am sure that the Minister will put me right if I have not—that 40-day period starts only after the application has been made, and identification and all the other requests have been completed by the applicant to the satisfaction of the local authority. Then the local authority has 10 days in which to identify third parties whose consent may have to be solicited before the information is divulged.
If the third party delays or refuses to provide that information, at worst there may be a delay of two, three or four months. I think that the Minister said explicitly that, 992 if a third party refuses to comply or delays, the local authority has an obligation to publish the information minus whatever information would be in the gift of—or related to—the other identifiable person. I assume that his or her rights will be protected if there is no response to the local authority request—the information will be disclosed, but the third party information will be withheld. If I have understood that properly, it at least makes the matter clear. The regulations should state explicitly that access is afforded after the third party identifiable in the files has refused a request or has delayed.
§ Dr. Godman
The hon. Gentleman is the expert in these matters, although not a self-proclaimed expert. Is he suggesting that if another individual refuses to grant consent to the disclosure of information, his refusal should be ignored? How do the English regulations, which the hon. Gentleman lauded earlier, deal with such refusals?
§ Mr. Kirkwood
I am not sure that I understand the question. My interpretation of the regulations is that if there are any references to identifiable persons, who have rights over disclosures made to another party, they are entitled to be consulted about whether they wish the information that relates to then—no more and no less—to be divulged. They have a choice. Requests come from the local authority asking whether the people identified mind the authority divulging the information. They can say yes, do nothing or say no. If they say no, the local authority divulges the information without reference to them. It blanks it out, or removes the relevant page, report or section and the file is then made available. Third parties should be given the option to remove, excise or amend the information as they please. They can make representations to the local authority to preserve their own rights.
I was concerned about what would happen if a person did nothing, and the Minister cleared up that point. Initially I thought that the regulations would enable the local authority to say that it had not had a response from the identified third person, so it would not divulge any information. The Minister has clarified that by saying that, in such circumstances, the local authority would divulge the information except for anything that related to the identified third party.
§ Mr. Michael Forsyth
I shall clarify the position. To put it simply, the third person can object only to his identity being disclosed. He cannot object to the information being disclosed. It would be open to the authority, when there was a refusal by a third party, to make the information anonymous and to provide it on that basis.
§ Mr. Kirkwood
I hope that that information is helpful. That is what I was trying to say, in a convoluted way.
The regulations on exemptions are an improvement on the original suggestion from the Government that harm, rather than serious harm, should be the test for exemption. The idea of a test of serious harm is based on the Data Protection Act 1984 and is a considerable advantage on the simple test of harm, which would have provided far too big a loophole. The Bill that I presented to the House originally allowed for information to be withheld where serious harm would be caused to someone other than the applicant.
To deal with situations such as child abuse and wife battering, the original Bill did not allow complete withholding of information on any harm grounds. It had 993 a better solution. In the case of distress or harm, it allowed for inspection in the presence of a professional. In such cases the professional would be a social worker. In the case of serious harm potentially being inflicted on a person, we suggested that there should be a referral for six months so that counselling and other matters could be examined. I still think that that was a better way to proceed, but although the regulations do not allow for it I recognise that they are something of an advance.
The regulations do not seem to lay any duty on local authorities to notify people when parts of the record are withheld. That worries me. As in the Data Protection Act 1984, there is no provision for applicants to be told whether the records that they have received in response to their applications are complete. Last year I brought forward a Bill on access to medical reports, which is now an Act. It requires doctors to tell patients when they are withholding information from reports supplied to insurance companies and potential employers, either because it might cause serious harm or because it involves the privacy of others. I regret the omission from the regulations, because I think that the value of such reports is much greater if those who receive them can be sure that what they have is all that there is—or are told explicitly if that is not the case.
The provision for an appeal procedure involving three members of the local authority would lead, in my view, to a hare, sparse and minimal system. I think that there should be an ultimate right of appeal to the courts. Hon. Members may consider that that would be taking a sledgehammer to crack a nut, but if we do not get it right people may start having recourse to judicial reviews over unreasonable refusal of access. That remedy would, of course, he technically available, but it would also be expensive and time-consuming.
Under the Data Protection Act there is a right of appeal, initially to the registrar and thereafter to the courts. Neither of those independent routes is available under the regulations. Presumably people have a theoretical right to go to the ombudsman if they can show that injustice has been caused by maladministration, but that is a strict test compared with the provision of an explicit right to go to the sheriff court.
I am disappointed by a number of aspects of the regulations. If they are implemented inflexibly, they may lead to unnecessary delays and diminish the new rights conveyed by the parent Act by being too costly for many people to exercise. They deny the spirit of the Access to Personal Files Act 1987, which sought to provide cheap and ready access to files held on individuals by local authorities. I fear that such over-rigorous implementation of the regulations may erect substantial barriers on the road to achieving the ends sought by the original Act.
§ Mr. Frank Doran (Aberdeen, South)
When I left university in 1975 I went to work for a local authority. I specialised in social work, particularly child care. It was an exciting time to go into that sort of work, because the Children Act 1975 had just been passed, giving social workers involved with children a strong indication that at last some attention was being paid to their profession.
As I became more involved in the subject, however, I realised that a number of fundamental problems had not been dealt with, two of which are exemplified in the 994 regulations. One was the protective attitude that social workers, like most professionals, felt towards information that they held on behalf of their clients; the other was the complexity of the law relating to children particularly, and to social work in general.
I made a quick check in the Library tonight. When I was practising in adoption, there were 18 or 19 statutes covering adoption law in Scotland. I am pleased to see that there has been an improvement—there are now only seven—but that gives hon. Members some idea of the complexity facing social workers when considering the la .w of adoption. I counted 24 statutes which infringe on the subject of child care. The complexity of the issues that we have discussed tonight is reflected in these regulations. The parliamentary draftsman has failed miserably. The prolixity will make the job of the social worker even more difficult.
The regulations also show the problems of protecting the interests of the professionals before we even consider the principle and spirit of the Act promoted by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), which concerns the interests of the person who is the subject of all the social work attention and who should have access to that information. As a practising solicitor, both in local authority work and in our courts in Scotland, I have seen the difficulties of presenting a reasonable case.
I intend to pick out some of the problems created by the regulations and relate them to the protection of the professionals and the complexity of the regulations. A number of issues cause me concern. For example, paragraph 10(2), to which my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) referred, states:the carrying out of the social work functions of the social work authority would be likely to be prejudiced by reason of the fact that serious harm to the physical or mental health or emotional condition of the individual who is the subject of the information would be likely to be causedand is thus a reason for refusing access to information. That is a very loose test. Who will determine the criteria? A reporter, medical practitioner or health board can certify as, under these regulations, can the social worker who may be carrying the day-to-day responsibility for a case. The phrase "emotional condition" concerns me greatly.
I know from experience that clients who have seen the information held on their social work files have been bloody angry about what has been said about them. Will a social worker be able to say that that is a condition, because revealing that information will affect the management of his case? I discussed this matter with the Scottish representative of the British Association of Social Workers and he thought the definition very loose. The provision should be used only on rare occasions. In the time available to me, I can pick out only examples of the abuse that might be open to a difficult person who does not want the information to be released. Anyone who has had access to social work case records—I have had access to hundreds—will be aware that, in many cases, they contain more opinion than fact and sometimes the opinion is very subjective. It is only when these things are tested, particularly before a court, that we can separate opinion from fact and realise how loosely those records are compiled.
Let me deal now with the position of reporters to the children's panels. I have had a great deal of experience in 995 dealing with children's panels and I am concerned about the operation of the regulations in this respect, particularly about the problems that confronted me as a lawyer, and other lawyers in Scotland, after the case of Kennedy v. A, which was reported in page 358 of the 1986 Scots Law Times. In that case, the person appearing before the children's panel had no right of access to the reports which were before the panel. As I understand it, subject to all the exemptions in the regulations, the parent will now be allowed access to those reports.
I am concerned about how that will operate in the day-to-day operation of children's hearings. For example, when a parent appears before a children's hearing, the chairman will be instructed by the regulations that govern the procedure at hearings that a summary of the content of the reports available to the hearing will be made available to the parent. Will that change now that the parent has access to the reports through these regulations? The practical operation of the regulations will make it impossible for the parent to have the information if the local authority decides to use the time limits available here. That information is of most use to the parent at the time when he appears before the children's hearing, or when his representative addresses it. Will the children's hearing procedure be changed?
One of the major effects of the Kennedy v. A case with which I had to deal on a number of occasions was the ridiculous problem of lawyers being expected to act on behalf of their clients in presenting appeals to the court, and, because of the decision of the Court of Session, they were not allowed access to the information upon which the decision of the children's hearing was based. Will the decision in that case be changed as a result of the regulations? It is important for practising solicitors who have to appear before the courts to know how the regulations will operate in practice. I am well aware of the handicap of having to present a case to the sheriff court—initially—on appeal without adequate information, or the ability to question the information that the children's hearing or the reports' compilers have had access to.
I have been away from practice since I was elected to the House, so I do not know, and have not been able to check, whether there has been a change in the Kennedy v. A position, but I should be surprised if there had been. I would be delighted to hear the Minister's views on that.
I am also worried about prison records. Social workers operate in prisons as representatives of local authorities. Of course, most prison records are covered by the Official Secrets Act 1911, but they are in the possession of the local authorities. Can the Minister clarify that? Are prison social work records also subject to these regulations, and would the subjects of the records be allowed access to them?
I am gravely concerned, too, about the review procedure. With all due respect to local authority councillors, a review body composed of them would be inappropriate. I have practical experience of this, and shall mention one example in a moment. Before someone can make a decision on case records, he must have access to them. Local councillors have access to certain local authority records, by statutory right. But they have never had access to the case records of social work clients. I hope that that system will continue, and that they will not be 996 given such access. I mean no criticism of local councillors; it is just inappropriate for them to have access to the records of people who may be their constituents or neighbours.
As I understand it, decisions on social work cases are made as follows. Reports are prepared by social workers in the case of, say, assumption of parental rights. Full case records are not submitted to the council sub-committee dealing with the cases—abstracts and summaries of cases are produced. Social workers may discuss particular details, but the idea of case records is alien.
When I was employed by the local authority, the chairman of a committee discovered that the social work department had information relating to a member of the family of a councillor of an opposing party. That chairman insisted on access to that file. The social worker involved had the guts to stand up to the councillor and refused to allow him access. The case was fought hard and, thankfully, the director of social work, with the backing of the social workers' professional body, refused to release the file to the councillor. The councillor pleaded his statutory right—in which he had the backing of the chief executive of the local authority—but the director of social work stood up to him. That is an example of the inappropriate use of social work records. I am unhappy about these regulations, because they would legalise access by councillors to social work records. The only proper way to review the decision of a local authority officer—Which is effectively what we are doing—is through the courts, not through a committee of the council.
The Minister has recently established a review committee to study child care legislation. One of the areas being examined is the assumption of parental rights. I have always been opposed to the idea of a local authority being judge and jury in its own case. It does not matter that it is a local authority: it could be any individual or body. In cases of assumption of parental rights, it effectively will be judge and jury under these regulations. I implore the Minister to review that position and to seriously consider involving the courts, so that we can have some objectivity and maintain the principle of the confidentiality of social work case records.
The point has already been made forcibly that costs will act as a barrier. I appreciate that local authorities are not obliged to charge £10, but I cannot understand why a person who is an ordinary run-of-the-mill social work client should have to pay £10 to gain access to his records, whereas an adopted person who has statutory rights under the Adoption (Scotland) Act 1978 to ask the local authority for information concerning his natural parents and the details of his adoption, does not have to pay a fee. I do not understand why a distinction is being made. Why is there a barrier to those people, who are not adoptees, having access to their records? I would appreciate some information about that.
Another important omission in these regulations is counselling. I shall again use the adoption legislation as an example. An adult who was adopted as a child, who wants access to his record, is counselled. The local authority is statutorily required to provide a counselling record. Under these regulations, vulnerable people may have access to their records, but there is no obligation or right to counselling. I should like the Minister to explain the distinction between the person who has been adopted and the ordinary social work client.
997 The regulations, of course, recognise that we are dealing with a complex situation concerning vulnerable people, who have had cause to call on the social work services. Some of those people may have spent their lives under the umbrella of social workers. I have acted for people who have known nothing else but contact with the social work department from early childhood right through to adulthood, because of a variety of circumstances—perhaps because of mental illness or handicap or because they were children in care. They have come through the system, and now their children are going into care. Counselling would be valuable to such'people. Why is it not their statutory right?
Despite my critical comments, I am not intending to force a vote on these regulations. I feel, however, that they have the serious defects relating to costs and the review body. I hope that the Minister will be able to give me the satisfaction which I am seeking and that he will take on board what has been said and reconsider these crucial issues.
It is important to pay some tribute to the practice which has now developed in social work. In many respects—the hon. Member for Roxburgh and Berwickshire alluded to this—the regulations lie behind what is now good social work practice. When records are compiled they are now the subject of discussion with the client, so he knows what is being placed on the record and he can assess what is said about him.
It is important that we recognise the good practices that now exist and pay tribute to social workers who work under the present difficult circumstances in Scotland.
§ Mrs. Margaret Ewing (Moray)
In common with other hon. Members who have spoken I give a broad welcome to the regulations because I believe that access should be given to information held in personal files.
I want to pick up two matters that have not been touched upon by other hon. Members, and I hope that the Minister will comment on them. First, I want to know the implications of the regulations for the voluntary agencies that work within the social work sector. Paragraph 1 of the regulations refers to the Access to Personal Files Act 1987 and the definitions in that paragraph appear to relate to local authority social work departments. I am sure, however, that all hon. Members will recognise the valuable role of the voluntary agencies that operate in the Scottish social work sector.
The hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) referred to the cost implications for Strathclyde regional council and its social work department. Obviously there will also be cost implications for the voluntary agencies if the regulations apply to them. Many of such agencies operate on a shoestring budget and have limited facilities, nevertheless they perform a vital function. Many work closely with local authorities, which we welcome, and it is important to know the implications of the regulations to those agencies.
What are the implications of the regulations to files that are compiled during the training of professional social workers? Before coming to the House I was a co-ordinator for the certificate in social service and my responsibilities covered the west of Scotland, which included Strathclyde 998 regional council, Dumfries and Galloway regional council, the two education departments of those local authorities and various voluntary organisations.
During training, those students who were already employed had to compile a great deal of work that related to the type of case load that they would have on a day-to-day basis. There was always a difficulty in defining whether those case files were the property of the college that was responsible for the academic qualification, the social work department that employed the student or the individual student. I stress that throughout the work undertaken on that course we emphasised confidentiality to our students and we never accepted any clear identification of an individual involved in those case files.
We must consider the implications of the regulations on those files that are used by students in the process of their professional training. We need highly skilled, professionally trained social workers if we are to face up to the many problems in our society.
Have the implications of the regulations been discussed with the Central Council for Education and Training in Social Work, which is the validating body? If not, will such an opportunity arise because, in the past, different interpretations have been given to the various schemes that operate the certificate in social service? It would be helpful to have clear guidance.
§ Mr. Michael Forsyth
We have had a wide-ranging debate in which hon. Members have quoted some interesting legal cases, to which I do not propose to give an instant response tonight. One of the interesting aspects of the debate was the emphasis placed on medical records, which are not immediately covered by the regulations. The hon. Members for Strathkelvin and Bearsden (Mr. Galbraith) and for Roxburgh and Berwickshire (Mr. Kirkwood) pressed me on the progress with the medical profession on that matter. As I said in my opening remarks, negotiations are continuing. The hon. Member for Roxburgh and Berwickshire suggested that, if we were unable to reach agreement on a voluntary basis, we should take the necessary statutory measures. I can assure him tonight, without too much equivocation, that if we are unable to reach agreement on a voluntary code, I shall respond vigorously to the pressure that the hon. Gentleman and others are putting on the Government in that respect.
The hon. Member for Strathkelvin and Bearsden, and a number of other hon. Members, placed some emphasis on the question of charging. The £10 fee is a maximum charge and local authorities have the discretion to charge nothing at all if they feel that a charge would result in the information not being made available to the applicant. Our guidance will recommend that the applicant's ability to pay should be taken into account. That should satisfy the hon. Member for Strathkelvin and Bearsden and a number of others, including the hon. Member for Roxburgh and Berwickshire.
I was asked about the lead time being given to local authorities. At the beginning of this month local authorities were told that the regulations would come into force on 1 April. As the hon. Member for Aberdeen, South (Mr. Doran) pointed out, many local authorities have already established good practices in that respect and therefore have a head start. I appreciate that it imposes a 999 certain discipline on the authorities to ensure that they have the necessary mechanisms in place to operate the regulations in time, but I do not believe that there will be any particular problem.
I was a little confused about the messages on the 40-day rule. If I understood him correctly, the hon. Member for Strathkelvin and Bearsden argued that that was not enough time to respond. However, the hon. Member for Roxburgh and Berwickshire argued that it was far too long, so I suppose that we have probably got it just about right.
§ Mr. Galbraith
I do not think that the 40-day rule is too long or too short. I agree that the Minister has got it just about right. I was trying to make the point that there may be exceptional circumstances in which for some reason it is impossible to get third-party permission within the 40-day rule. I wonder whether the guidance to local authorities might contain some exceptional exemptions that would allow for that. For example if a consultant was away for a considerable time, and if information was released without the permission of that person, that could lead to distrust with the authority from which the information was obtained and could cause further problems in future. Will the Minister consider making some special exceptional exemptions?
§ Mr. Forsyth
I think that I can help the hon. Gentleman. If he reads Hansard tomorrow, he will see that the hon. Member for Roxburgh and Berwickshire made the point that the 40-day clock starts ticking once the necessary information is available, so there is provision for that. I do not want to dissuade the hon. Gentleman from the view that we have got it right by pursuing that issue too far.
As to his point about consultants going on holiday, there is provision in the regulations for another health professional to give the necessary consent, in the absence of the appropriate person.
The other main theme which the hon. Member for Strathkelvin and Bearsden raised at the beginning of the debate was the definition of serious harm. The point has been made in consultation as to why the regulations do not specify "harm" instead of "serious harm". A balance is involved. It is a difficult subject, but by definition such matters can be decided only on a case-by-case basis. We all recognise that the desire which we share to ensure that information is available where appropriate must be balanced by the odd, very exceptional case where this test would be met. I can perhaps reassure those hon. Members who were concerned about the definition by saying that it is our view that it should be exceptional for information to be withheld, rather than the kind of circumstance which the hon. Member for Aberdeen, South was concerned about.
My hon. Friend the Member for Eastwood (Mr. Stewart) asked me about the housing regulations. Yes, we are at present consulting about those matters and we have had about 30 responses to date. We will proceed with the same vigour but care which we have shown in the regulations themselves.
My hon. Friend also asked me about the position of Members of Parliament. The position of hon. Members will, as usual, be the same as that of any other citizen: they 1000 will have no special rights under these regulations. But, as my hon. Friend himself pointed out, if they are acting as agent they will be able to operate on that basis.
The hon. Member for Greenock and Port Glasgow (Dr. Godman) asked who would act as censor, who would be responsible for deciding whether information should be withheld. I can assure him that such a decision will be taken by senior management.
The hon. Member for Strathkelvin and Bearsden asked me about the resource implications. It is perhaps appropriate at this point to highlight the splendid record of this Government in providing support for social work services in local government. I am bound to say that when I looked at these figures I was so astonished by the increases that we have made available that I had them checked, and I am assured that since 1979, when we came into office, the planning figure for such services has increased by no less than two thirds, in real terms. Next year the planned provision exceeds that for the current year by 13 per cent. and local authorities' own budgets by 6 per cent. for that year, so I do not anticipate that these regulations will make much of a dent on the very substantial resources which we have provided. However, it is open to the local authorities, in the light of experience, in the negotiations which take place on the rate support grant, to make a case if they feel it appropriate.
I was asked about the regulations not providing for a person to be told of information being withheld. This is an important point made, I think, by the hon. Member for Roxburgh and Berwickshire. I must say that in some circumstances it would be almost as damaging to make it known that information was being withheld as to provide the information in the first place. But the hon. Gentleman is right to emphasise that the imperative should be to make information available where appropriate—and that includes the information that the information is being withheld. I can assure the hon. Gentleman that the guidance will invite local authorities to judge whether a person should be told, in keeping with that good practice.
The hon. Member for Aberdeen, South referred to the complexity of the child care law. I completely agree with him. He himself pointed out that a child care review is operating currently. It will report to my hon. Friend and will, I think, cover some of the points which concern the hon. Gentleman.
The hon. Member for Aberdeen, South also asked me about prison records. Although social work records in prison would not be covered by the regulations, we will try to ensure that the same kind of code is operated on social work records in the prison system, although not on a statutory basis. I think that that will meet his point.
The hon. Member for Aberdeen, South also asked about the provision of counselling for people who have obtained access to their records. The guidance will certainly suggest that local authorities should offer counselling where appropriate consistent with good practice. He also made an important point about the children's hearings rules, and asked whether they would need to be changed as a result of the regulations. Chairmen of children's hearings are still required to discuss the substance of reports with families. If the regulations are approved, we shall reconsider the terms of the children's hearing rules in that respect. The rules are laid down by statutory instrument, and I am happy to undertake to look at—and, if necessary, amend—the instrument before the regulations come into force on 1 April.
1001 The hon. Member for Moray (Mrs. Ewing) asked me about voluntary organisations. The 1987 Act extends only to the manual records of local authorities for their social work functions, and the regulations could not, therefore, extend to the records of voluntary organisations, although the hon. Lady has made a point of substance. It is open to the voluntary organisations to institute procedures based on the regulations, as I have confirmed we shall do in the prison service. Some voluntary bodies are already developing access arrangements but we are not requiring them to do so.
There has been some criticism of the complexity of the regulations. That is often a consequence of private Members' legislation. I have discovered in recent months that it is never as simple as it might appear at first sight. Nevertheless, I hope that the House will accept the regulations as a genuine and sincere attempt to bring to people in Scotland the opportunity of access to information to which they are entitled, and the first in a long line of such attempts.
§ Question put and agreed to.
That the draft Access to Personal Files (Social Work) (Scotland) Regulations 1989, which were laid before this House on 16th January, be approved.