If you are the safeguarding lead for your organisation, please ensure that you disseminate and implement this guidance throughout your organisation:
- Ensure staff are made aware of the guidance via briefings / internal communications
- Make the guidance available via your intranet with a link across to this page
- Update in-house policies and procedures to reflect this guidance
- Update in-house training to reflect this guidance
- Take steps to assure yourself that this guidance is being followed appropriately in practice
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The Care Act 2014 recognises that safeguarding concerns are not always in relation to the safety and wellbeing of an individual or individuals, but rather they relate to the possible risk posed more widely by a person in a position of trust.
Safeguarding Adults Boards are required to establish guidance for how organisations should respond to such concerns. This may involve informing other organisations about potential risks so that they can be assessed and appropriately managed to prevent abuse or neglect. As such this guidance on information sharing must be read alongside the LSAB Practice Guidance: People in Positions of Trust.
You can share relevant information if you can answer yes to each of the following questions:
Public bodies or organisations commissioned by them should be considered to be undertaking a public task as a lawful basis for sharing information. Other agencies not fulfilling public tasks should consider relying on legitimate interests as a lawful basis for sharing information.
Public tasks are relevant to public authorities and organisations commissioned by public authorities. Public tasks are those tasks that involve processing information that is necessary for you to perform a task in the public interest or for your official functions and the task or function has a clear basis in law.
In other words, if your organisation is a public body or commissioned by one, and as part of this role you have a responsibility to safeguard adults with care and support needs from abuse, then you may consider relying on fulfilling a public tasks as a legal basis for sharing information about a person in a position of trust.
In fulfilling a public task there is a need to consider when the right to privacy of a person in a position of trust, is outweighed by the rights of safety of others. As such, there must be due consideration of Article 8 of the Human Rights Act (the right to private and family life).
Article 8 – Right to respect for private and family life
'Everyone has the right to respect for his private and family life, his home and his correspondence'.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
If you are not a public authority or commissioned by a public authority, you should consider relying on legitimate interests as your lawful basis for sharing information about a person in position of trust. This may be relevant where sharing the information is necessary:
- for the public authority’s legitimate interests or the legitimate interests of a third party, unless there is an overriding reason to protect the individuals personal data.
You can rely on this provision as the basis for sharing information if the legitimate interest in sharing the data (i.e. the safety of others) outweighs the person in a position of trust’s interest in maintaining their privacy.
Regardless of whether public tasks or legitimate interests are used as the legal basis in law, the judgement to be made is the same. In deciding whether sharing the information is justified and necessary a professional judgement will be required based upon balancing the safety and needs of those potentially at risk, with the rights of the employee/volunteer or student as described below:
A fair balance must be struck between the rights of the person in a position of trust to privacy and the interests of those at risk of abuse and neglect. This requires a careful assessment of the severity and consequences of the interference in the life of a person in a position of trust and the risk posed to others.
The risks to adults with care and support needs must be sufficient to justify interfering with the person in a position of trusts’ right to privacy. The consideration is therefore one of proportionality - there should be a need for the disclosure in order to protect adults with care and support needs.
Ask yourself: Is the sharing of this information fair, i.e. is sharing this information something people would reasonably expect you to do in these circumstances?
If it is reasonably believed that the sharing of information will achieve the aim of preventing abuse or neglect, there should be no more interference in the person’s right to privacy than is necessary to achieve this aim.
Ask yourself: Am I only sharing information that is necessary to share? You should always ensure you share no more information than is necessary to achieve your purpose.
It will be important to record your judgement, your reasons for sharing or not sharing the information, the factors you have considered, and why you have given weight to some factors more than others. Please refer to the LSAB Practice Guidance: People in Positions of Trust, which includes a recording template that can be used where helpful, to assist with and record such decision making.
Unless wholly impractical, before disclosing information to another employer, volunteer manager or student body, there is a need to consult with the person in a position of trust whose information is to be shared. This will give them the opportunity to respond to the concerns and make representation on the need to share the information.
Whilst it is important to work with the person in a position of trust and seek their agreement to share information wherever possible, consent however will not always be considered a lawful basis to share information in such situations.
Consent must be freely given, specific and informed and the imbalance of power in such situations may mean that it cannot always be relied upon. In such cases, decisions will need to be proportionate to the concern as set out in Section 6.2. This does not preclude however in any way, the responsibility to consult with the person in the position of trust unless it is wholly impracticable to do so or may place someone at risk.
Thirdly, the information shared should be accurate so as to present a fair picture of circumstances and enable informed decision-making. In order to be accurate, it must also be up-to-date. Data entries should also be complete, or indicate where information is missing.
Finally, can you physically share the information securely? Information should be shared according to organisational policies and local arrangements. However, guidance on how to share information securely is included in the Appendix.