§ 7.30 p.m.
§ The Earl of Arran rose to move, That the draft regulations laid before the House on 16th January be approved [5th Report from the Joint Committee].
§ The noble Earl said: My Lords, in moving this Motion I hope that it will be for the convenience of the House if I also speak to the draft Access to Personal Files (Social Work) (Scotland) Regulations 1989 which were laid before this House on 16th January; the draft Access to Personal Files (Housing) Regulations 1989 which were laid before this House on 17th January and the draft Local Authority Social Services (Designation of Functions) Order 1989, which was laid before this House on 19th December.
§ Before I come to the substance of the access regulations, it may be helpful to your Lordships if I say a few words about the background to them. The 141 regulations apply the Access to Personal Files Act 1987. That Act, as your Lordships may recall, was promoted initially in another place with great sensitivity and was keenly debated in both Houses.
§ The Data Protection Act 1984 enables people to know what is recorded about them in computer records. The regulations before us today are concerned with records which are not covered by the data protection legislation; that is, they deal with records kept manually. However, in drafting the regulations we have sought as far as possible to keep in line with the corresponding provisions in the data protection legislation so as to avoid confusion, particularly as an authority may be using both methods for keeping its records.
§ During the passage of the 1987 Act a commitment was given by my right honourable friend the then Minister of State that, subject to no difficulties being encountered in the consultation process, regulations would be made and that we would endeavour to make them by the end of 1988. We virtually achieved that and the regulations will be made as soon as the necessary approval has been given by Parliament. In their preparation we have consulted widely with organisations representing local authorities, voluntary organisations, health service interests and other concerned bodies.
§ To allow authorities time to adjust their procedures it is intended that the regulations should be brought into force on 1st April next. To assist authorities we are issuing guidance to them. Circular LAC(89)2 gave advice on social services records and is, of course, subject to approval being given to the regulations by Parliament; a copy of the circular is in the Library of your Lordships' House. Advice on housing records will be issued after the regulations have been approved; a draft of the housing circular has been deposited in the Library.
§ During the passage of the Act much interest was expressed in access to medical records. Those records were excluded from the Act but we undertook to hold talks with the medical profession on a voluntary code of practice on access to medical records. Those discussions are proceeding. An agreement has not yet been reached, although substantial progress has been made. The Government are determined to see the establishment of a voluntary code very shortly and my honourable friend the Parliamentary Under-Secretary gave an undertaking in another place on 7th February that if there was any question of further delay he would meet the profession's representatives. He said that he thought it right that once agreement had been reached with them there should also be consultation with other non-medical health professionals who maintain records on patients and with those bodies who represent patients' interests.
§ After that outline of the background to the regulations, I turn now to the regulations themselves, starting with the social services regulations.
§ The Access to Personal Files Act takes forward the establishment of the right of individuals to know what is recorded about them by local authority social services departments. In 1983 the then Secretaries of State issued to local authorities in England and Wales general guidance on the principles governing 142 disclosure of information in the records in question to people who were the subject of the information. The Secretaries of State said that they shared the increasingly held view that people receiving those services should, subject to adequate safeguards, be able to discover what was said about them in those records.
§ The following year the Data Protection Act was enacted. That included provisions enabling individuals generally to see what was recorded about them in computer records. Orders were made under that Act to add to the general safeguards in relation to social work records.
§ There are circumstances where it would not be right to grant access to all the available information and I shall explain those circumstances. First, however, I should emphasise that it should be exceptional for information to be withheld and even then it should be possible to release most of the available information, though some may need to be made anonymous to conceal the identity of a third party. For the most part information held manually in social service records will become readily available. In framing the regulations we have kept as closely as possible to the provisions of the data protection legislation and the guidance issued by the data protection registrar, who has been consulted about them.
§ Following a request from an individual a local authority will have to tell that person whether it holds information about him and give the person access to it. That includes expressions of opinion. Although the Act does not confer a right of access to any indication of the intentions of the authority towards that person, we have recommended authorities to let him know of them. Generally it is good practice to do so in the course of an individual's continuing care rather than waiting for a formal request for access. We have said that that should be seen as part of a process of encouraging users of services to participate as far as possible in actions concerning them.
§ Similarly, the Act requires access to be given only to so much of a person's record before these regulations come into force as is necessary to make the accessible information intelligible. We have advised authorities that there is likely to be significant advantage in their making available as much information as possible. That could lead to a greater clarity and understanding of an individual's background, especially in a child care case.
§ Access may be given by supplying an individual with a copy of the information or by some other means such as letting the individual see the information. If, however, having seen the accessible information the individual requires a copy of it he must be given one. If any of the information is not intelligible without explanation, the individual is to be given an explanation of it. That would apply if, for example, the authority holds the information in a coded or abbreviated form or it is in professional jargon which cannot be understood without the key to the code or meaning. The explanation should be sufficient to make the information intelligible to people unconnected with the authority. In some cases the individual may still not be able fully to 143 understand the information but should be able to take it to another person for advice.
§ The authority will be able to charge a fee of up to £10 for access at its discretion. We have indicated that we expect authorities to take into account applicants' ability to pay.
§ Some of the information that the authority holds may contain material provided by a health professional. Where that is the case the local authority will have to notify the health authority, or the health professional if not employed by a health authority, within 14 days of receiving the request. Where the health authority or the health professional says that access must not be given to the information, or part of it, the local authority is relieved of its obligation to grant access. The circumstances where a health authority or health professional may do that are when access is likely to give rise to a risk of serious harm to the health of the individual or another person, or where access would enable a third party (other than a health professional) to be identified or for him to be identified as the source of the information. A definition of a health professional is given in the regulations.
§ The local authority may withhold other information in certain circumstances. We have told authorities that this decision should be taken at senior management level. Information may be withheld because of a risk of serious harm to the health or emotional condition of the individual or a third party. We have said that withholding information on this ground would be most exceptional.
§ Information may also be withheld because the identity of a third party (other than a member of the staff or a paid carer) would be revealed or could be identified as its source. The local authority is required to notify a third party of the receipt of a request for access and to seek consent to access, but access may not be given without that consent unless the information can be made anonymous. If the authority does not receive the third party's consent within the 40-day time limit, the authority has to give access to as much of the information as possible without revealing the other person's identity or that the third party is the source of the information, for example, by making the information anonymous.
§ The local authority may also withhold information where it is held for the prevention of crime, where it comprises reports which magistrates courts may withhold, where it is subject to legal professional privilege or where disclosure is restricted by the law relating to adoption or special educational needs.
§ Children who have the understanding to make a request for access are entitled, like adults, in accordance with the general law to see what is recorded about them. Where a child does not have this capacity, a parent or a person with the legal power to act as a parent in relation to the child will be able to make a request for access to information recorded about the child. Detailed guidance has been given to authorities about dealing with a request from or in relation to a child along the lines of that given by us in respect of the data protection arrangements.144
§ Finally, these regulations allow an individual aggrieved at being refused access to appeal to appeal to a committee of the local authority. This is of course additional to any general rights that the individual has to apply to the courts; for example, judicial review or in the case of maladministration to the local government ombudsman.
§ The Scottish regulations are in essence the same as those for England and Wales with one minor exception. That is to be found in Regulation 9, which requires the local authority holding information supplied by the reporter to a childern's panel to consult the reporter on acess. In Scotland most childern who commit offences and children who are in need of care and protection are not dealt with through the courts. Instead they are referred to the children's panel whose job it is to investigate the background to the child's case. Regulation 9 seeks to preserve the position whereby reporters can share with local authorities the often very sensitive information that they hold without fear of unintended disclosure.
§ As regards housing, we are also considering tonight parallel regulations to give local authority and housing action trust tenants and applicants for tenancies in England and Wales access to their records. These are broadly on the same lines as our social services regulations and the Data Protection Act.
§ That said, there are inevitably some differences of structure and emphasis. In particular, the person with right of access is the tenant and the right covers not just personal information about himself but also information about members of his family. This is relevant to what exemptions are provided from the requirement to disclose information. Since many, or perhaps most, tenants' records will contain information about members of the tenant's family living with him, it seemed to Ministers that a general requirement to obtain their consent before disclosure would risk bringing the whole procedure for access to a grinding halt. We have therefore provided, in effect, under Regulation 4(1)b, that information about members of his family should be accessible to the tenant unless the authority—or, where relevant, an appropriate health professional—considers that disclosure would cause serious harm to that family member's physical or mental health. We believe that this is a reasonable practical safeguard.
§ There is also a slight difference in the review procedures provided. Regulation 8(2) and the guidance circular are aimed at obtaining a review internal to the council with as much independence as possible of the original decision. The alternative of reconsideration by a meeting of the full authority is needed to cope with cases where all the members of an authority—as happens in some district councils—are ex officio members of all committees. Tenants who remain dissatisfied after such a review of course retain their general rights to pursue their case with the local government ombudsman or the court. With those differences, the housing regulations remain fully in sympathy with the overall objective of securing, with suitable safeguards, the maximum disclosure of personal information to the customer.145
§ In the housing field, the operation should be broadly self-financing, with the fees charged in particular cases reflecting the costs incurred, and thus part of the more commercial approach that we expect authorities to adopt. Being responsive to tenants' requests for access to their records is also an important ingredient in efficient housing management and very much in line with the more consumer oriented general thrust of the Government's housing policies.
§ The Local Authority Social Services (Designation of Functions) Order, which applies only to England and Wales, is to designate under the Local Authority Social Services Act 1970 as social service functions those functions of local social services authorities under the Access to Personal Files Act and under the Disabled Persons (Services, Consultation and Representation) Act 1986. The effect of this is that the powers and duties specified stand referred to the social services committee to which those functions may be delegated and the social services department may deal with that work. That is what has always been envisaged.
§ In summary, the access regulations along with the corresponding parts of the data protection legislation provide individuals comprehensively with a right of access, subject to certain specified safeguards, to the records of the local authority services involved. This will happen whether they are kept on computers or by traditional means. The legislation contributes to the development towards greater sensitivity to the needs of individuals in the delivery of services and support. I commend the regulations and the order to the House.
§ Moved, That the draft regulations laid before the House on 16th January be approved [5th Report from the Joint Committee].—(The Earl of Arran.)
§ 7.45 p.m.
§ Baroness Jeger
My Lords, I am sure that your Lordships will be glad to know that I do not propose to go into all these statutory instruments individually. However, I have one or two questions that I should like to ask the Minister.
Like so many of my colleagues on this side of the House, I am worried about the fee of £10 that people will have to pay to obtain access to their records. The noble Lord said that that could be worked out in accordance with ability to pay, but he did not say who will decide what is the ability to pay and how that will be worked out. Will some local authorities insist on the £10 fee while others say that no one need pay anything? In addition, what is the position regarding access by family members—spouses and children, including perhaps adult children? Can a husband demand a right that a wife is denied? Can an adult child demand a right to look at those papers and then be denied access to them? What is the position of family members and their access to these records?
I understand that these rules are due to come into effect on 1st April. What happens before and after that date? What will happen to matters that are now in the pipeline? Without going into all the details of the statutory instruments, those are the main points about which we are worried.
§ Baroness Elliot of Harwood
My Lords, perhaps I may say a few words with regard to Scotland, and Regulation 9 to which the noble Earl referred. The principle about which we wish to be sure is first and foremost the welfare of the child. The situation in England is rather different from that in Scotland. Scotland has the panel system. The reporter has information from all sources including the child. If he considers it unwise to report what the child has said he can keep this private.
Under the new scheme Regulation 9 provides exemption from access to information from reporters to children's panels provided that the criteria clearly laid down apply. It is not clear, however, whether "information" in this context covers reports provided by social work authorities to reporters as part of their initial investigation under Section 38(1) of the Social Work (Scotland) Act 1968. Nor is any mention made of reports provided by social work authorities to children's hearings in terms of Section 39(4) of the Social Work (Scotland) Act 1968. Do we know, for instance, if reports from social services to juvenile courts in England and Wales are exempt?
A major concern of the children's panels and of children's committees—I was a chairman of one for many years—is a child's right to privacy. Children can and do confide in social workers, foster parents, youth leaders and others about personal matters. It is proper and necessary that they do so. The question therefore arises at what age, and under what circumstances, should children be allowed to keep confidential such disclosures about themselves or their parents? As matters appear to stand, any parent of a child under 16 years of age, including the estranged, abusive, violent and mentally unstable parent, seems to have a right of access to all information about his child, subject only to the criteria for exemption in Regulation 9(4). It is not difficult to imagine a situation where the disclosure could be seen by the child as a gross breach of privacy but where it would be difficult to argue that serious harm would arise from the parent having the information in written form. For example, a child might be placed away from home on a fairly permanent basis with no anticipated parental contact.
In terms of child protection procedures in Scotland, much progress has been made in recent years by all the agencies concerned sharing vital information about children at risk of abuse or neglect. A fear that reporters have about the new regulations is that agencies which hitherto have shared confidential information to social work authorities and reporters' departments might be less willing to do so and that the right of such children to the protective network of the children's hearings systen might be sacrificed to their parents' right to information about them.
There is great agitation and worry about these regulations in Scotland. I am representing the views of a great many people with whom I have been in contact.
§ Earl Russell
My Lords, on behalf of my noble friends, I should like to extend a warm welcome in principle to these orders. They result from the Access 147 to Personal Files Act, which originally was a Private Member's Bill, moved by my honourable friend Mr. Archy Kirkwood. It was an enabling Act. These regulations give life to the Act. It is a matter that may appear much more important in 10 years' time than now.
As a historian I am well aware of the possibility of inaccurate records. I once saw a record which granted a passport to a gentleman of Chelmsford in the county of Esquire. Not all errors in records have such a visible clarity on the face of them. With computers such errors become much harder to clear up. However, having warmly welcomed these orders in principle I hope that I may be forgiven for a few moments for looking a gift statutory instrument in the small print!
First, I share the Opposition's concern about the fee of £10, which seems to savour of the Conservative doctrine of crossing the palm with silver. I am well aware that account is to be taken of ability to pay. I welcome that. However, I should have thought that among those who are concerned about possible maladministration in social security, ability to pay might be the exception rather than the rule. I wonder whether in the end we shall find that the fees of £10 are a great deal more trouble than they are worth.
I also have some concern about the appeals procedures. Different appeals procedures are laid down under the different orders. In the social services order it does not seem to be entirely clear that those who hear the appeal should not have participated in the original decision. That gives me a certain amount of anxiety.
I also have some concern not about the reasons for exception but about the statement of those reasons. In each case, if the authority is refusing the record, it has to specify the reason. It may withhold a record on grounds that the production of the record may cause serious harm to the physical or mental health of the person concerned. However, if the record would cause such harm, might it not cause equal harm to say to somebody, "I cannot show you your records: it would cause serious harm to your physical or mental health"? It is a little like the case I once encountered of a mental patient who was told, not by a professional, "You are paranoid". The results were not encouraging.
Similarly, information may be withheld if it is liable to be needed for the prevention or prosecution of a crime. But again the reason must be specified. To paraphrase, one may have to say, "I cannot show you your record because the answer might tend to incriminate you". This again might be a little unwelcome.
There is a real dilemma here. It is difficult to see how one can have a withholding procedure—which I agree there must be—without the specification. When we review the operations of these regulations, as no doubt will be done, might it be possible to connect this question of the grounds of refusal, or their specification, with the provision of an appeal procedure and perhaps to consider whether in some cases the reason might be stated to a third party?
148 I am also a little concerned about the position of a member of the person's family. There is a provision for withholding a report if it might disclose the identity of a third person except when that person is a member of the tenant's or claimant's family. However, I can imagine cases concerning, for example, the spouses of mental patients where it might be of some importance to conceal that the spouse had been in communication with the local authority. I can envisage some awkward situations there.
We have also other problems which we shall have to consider in the future. The noble Earl drew attention to the major problem of medical records. That is still ahead of us. I am glad to hear that consultations are still proceeding on that. I hope that they will lead to success. I was also delighted by what the noble Earl said about records of housing action trusts. I am sure that this information will be equally welcome to my noble friend Lord Tordoff, who raised the matter at Committee stage of the Housing Bill.
Perhaps I may ask one final question. I should be glad to know whether we shall have any access to housing records in Scotland.
§ Baroness Faithfull
My Lords, I rise to support my noble friend Lady Elliot in what she said about the Access to Personal Files (Social Work) (Scotland) Regulations. The Minister said that in essence the regulations for Scotland and England were the same except for Regulation 9. However, perhaps I may underline what my noble friend Lady Elliot said. In fact the situation is very different in Scotland from England. We are very much concerned that in Scotland the panel system should not lose the confidence of parents, of children, of social workers or of the police. If the confidentiality is not safeguarded, the panels will lose the present extraordinarily good reputation that they have in the community. The position in England is quite different because a child coming before the court has to see the report which has been submitted to the court. That does not necessarily break confidence but there is not always the full information in that report.
In the regulations it is not very clear who the client is. Is the client the child or the parent? This principle is not clarified in the regulations as I understand them. As my noble friend Lady Elliot has asked, at what stage and age can the child's disclosures, particularly about his parents, be kept confidential?
There is another matter. Why do the draft regulations in Scotland concerning educational interests differ from these regulations? Is it right that the two sets of regulations should be different? The atmosphere that has been built up in Scotland has been built up on trust and confidentiality. I hope that the regulations will not break that down which I believe they may if they are allowed to go forward as they are at the moment. I put forward that as a question.
§ 8 p.m.
§ The Earl of Arran
My Lords, I am grateful to your Lordships for the contributions to the debate this evening upon these regulations. I should like to deal 149 as closely and as succinctly as possible with the points raised.
First, I take the comments made by the noble Baroness, Lady Jeger. She was particularly concerned about the £10 fee. Many having dealings with social services departments are among the poorest in the community and many social services clients are in receipt of income support. We have taken the view that local authorities should be able to exercise discretion in setting the fee within a ceiling and to waive their fees altogether if circumstances so warrant.
Another point that the noble Baroness, Lady Jeger, made concerned housing regulations. Access is by tenant to information on himself or the family. Safeguard for sensitive information is invoked if, in the view of the authority or a health professional, there is the likelihood of serious harm to a family or member from disclosure. There is no requirement to get the family member's consent. If the husband and wife are joint tenants, each will have access to information about the other and other family members on the above basis.
I now turn to the remarks of my noble friend and kinswoman, Lady Elliot. I should like to thank my noble friend for raising these matters before the debate. If the House will forgive me, I should like to spend a few minutes on the situation in Scotland and the comparison which my noble friend makes between England and Scotland. I am sure your Lordships will know that the Scottish children's hearings system is unique in Great Britain and not immediately comparable with the arrangements for juvenile courts in England and Wales. Openness is a strong feature of the hearings procedure. The chairman of the hearing is already required to disclose the substance of the social background reports to the child and his family in the course of the hearing where that would not be detrimental to the interests of the child.
The Scottish regulations are designed to suit the special circumstances of the hearings system in Scotland. The reporter to the children's hearings holds records which are not covered by the terms of the 1987 Act. There is no question, therefore, of information which is in the hands of the reporter but not passed on by him being accessible in terms of the present regulations. Regulation 9, however, requires that a local authority must consult the reporter to the children's panel if it has on its files information which originated from him. The reporter can tell the local authority to withhold information which would cause serious harm to the child or another person or disclosure of a third party's identity. Where the reporter sees the need to withhold his consent on the grounds available to him, the authority must comply. We believe that the protection of sources afforded by these provisions will enable the supply of information to proceed as at present.
Secondly, there is the point concerning parents and the children's age. As regards the relationship between parents and children, the regulations provide for access by a person to information about himself. A parent could have access on his own account or, in Scotland, if acting for a child under the age of 12 or 14, if a boy. Above those ages a child has the right to access on his or her own account or can, 150 if he or she so wishes, allow access by another person on his or her behalf. In other circumstances, where the parent is the de facto applicant, the local authority has to exercise judgment to decide whether any information would cause serious harm to the subject of the information or to another person. The relationship between parents and children can be a difficult area. Guidance issued to local authorities in Scotland will make clear that they should act with caution where parents seek access to personal information on behalf of a child.
Thirdly, there is the comparison between social work regulations and the proposals on access to education records. My noble friend said that the Government's proposals for access to school education records seem to offer a greater privacy to the child than under the social work regulations before us this evening. The education proposals contain some differences of approach, but we emphasise that they are only proposals at present. They provide for the parent of a child under 16 years to have the right of access to the child's school record without the child's consent and for children over 16 years of age to have access with the same rights as those afforded to their parents.
We have just outlined the rather different age thresholds applying in the case of social work regulations while from some perspectives the arrangements for access by children to their social work records may be said to be more protective of the child's privacy. We do not think at the end of the day that the different thresholds will affect significantly the rights of children vis-?-vis access to social work records or to education records when the latter are finalised. The Government will, however, have close regard to the position now embodied in the social work regulations when they consider the results of the consultations on access to education records.
Finally, my noble friend raised the possibility of damage to relationships. As regards my noble friend's point about damage to relationships between professionals and within families, we must bear in mind that the essence of the regulations is the provision of access subject to certain safeguards. The regulations do not apply, as I have said, to records maintained by reporters to children's hearings and the reporter will have the right to veto the disclosure of information provided by him to the social work departments. In addition third parties generally will be asked for their consent to disclosure where they have supplied information. If their consent is not forthcoming authorities will have to "anonymise" such information to protect the identity of its source. We are sure that local authorities will act responsibly in providing access and we are confident that relationships developed over the years will not be impaired if the regulations are operated, as we intend, with due care.
As regards the final point of the noble Earl, Lord Russell, who asked whether there would be access to records for housing in Scotland, the answer is yes. I note the points that the noble Earl made.
The noble Earl raised the question of housing and the requirement to state which exemption is to be used. We accept that housing regulations are different from social services regulations However, 151 we believe that it is less likely that sensitive information will be held on tenants' records. We are concerned only with access to information held for the purposes of the tenancy. Therefore, we think it best to give more reason to the desirability of being open about the exemption relied upon.
Finally, I note carefully the matters raised by my noble friend Lady Faithfull. In case there are points which I have not dealt with tonight I shall read Hansard and reply in writing.
On Question, Motion agreed to.