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Peter Garsden of Abney Garsden McDonald, and member
of the Association of Child Abuse Lawyers, examines the impact of the
Data Protection Act 1998 on access to social care records and offers
practitioners practical advice on handling sensitive information.
The Question:
In the first part of this article, I will examine the
practical impact of the Data Protection Act 1998 on the ability of claimants
in child abuse cases to access social care records through the courts.
Prior to 1989, the disclosure of social care records was determined
by common law, and in particular the principle of Public Interest Immunity.
Any part of the records which the court deemed should be subject to
Public Interest Immunity was masked out.
The Data Protection Act 1998, which came into force
on 1st March 2000, removed the concept of Public Interest Immunity and
enables any person access as of right to their Social Care Records.
However, as illustrated by a recent case in which I am involved, the
civil courts appear to be continuing to apply the rules of Public Interest
Immunity to applications for disclosure.
The Law Before the Act
Prior to 1989
Access to social care records was governed by the common
law, and in particular the concept of Public Interest Immunity. Access
by the subject of the care order or anyone else had not been a consideration
when the records were prepared and child abuse group actions were unheard
of. As a consequence, access was granted only sparingly and was normally
only an issue in public law cases where the Court Welfare Officer would
be the only person to see the records. If access was required by anyone
other than the Court Welfare Officer the Judge would be consulted at
a Public Interest Immunity Hearing. He would make a decision after viewing
the records, and deciding which sections would be subject to Public
Interest Immunity. Sections of the records that the judge deemed were
subject to Public interest Immunity would be masked out. Typically,
this would include parts that contained sensitive references to other
members of the family, and the names of third parties whose consent
to disclosure had not been given, either because they refused or could
not be traced.
1989 to 2000
The law was contained in the Access to Personal Files Act 1987,
and the Access to Personal Files Regulations of 1989. The Act stated
that anyone whose social care records came into existence after 1989,
was entitled to see them as of right upon payment of a fee limited to
£10.
If however the records came into existence before 1989
then they were subject to the old common law principles referred to
in the paragraph above. If their probative value outweighed their prejudicial
effect, after examination by the Judge and an application had been made,
then a claimant would be entitled to see them. This meant that when
records were requested from a local authority, access would normally
be refused on the grounds of Public Interest Immunity. The local authority,
upon the advice of their insurers, would state that they would abide
by any Court Order forcing them to disclose. As the cost of an application
for third party discovery in a civil action normally falls upon the
claimant, such an application would be costly and wasteful.
Records which came into existence after 1989 however
could still be edited, but the masking out was limited to the identify
of third parties whose consent to disclosure could not be obtained.
2000 onwards
The Data Protection Act 1998 repealed the Access to Personal
Files Act 1987 and the Regulations of 1989 by giving any person a right
to see their social care records, regardless of when the records came
into existence. This sent alarm bells ringing in the local authorities
who had always maintained that old social care records were not prepared
with disclosure to anyone subject to a care order in mind. Nonetheless
the Act forced them to disclose the records, notwithstanding the existence
of PII as a common law concept. If the local authority refuses the claimant
can bring proceedings.
The fee for access remains at £10. The Act entitles
the claimant to have a copy of the social care records sent to him.
In practice the local authority will invite the claimant to visit the
local authority offices to read and view the records. The claimant will
be encouraged to bring a friend or relative for support. The local authorities
prefer this procedure because of the likely effect of reading the material
upon the claimant. They will discourage photocopies being taken, and
will usually not allow a complete copy of the records to be taken away.
Can access be refused?
There are three exceptions to the right of access:
- The records are about the claimant's physical or mental health or
condition. In this case the Local Authority can seek a medical opinion
as to whether they should be disclosed.
- Disclosure would hamper a current Social Services investigation
affecting the claimant or his family, and/or the disclosure would
affect the prevention or detection of crime.
- Another statute affects disclosure, e.g. Adoption records.
Can the records be edited?
The local authority are entitled to mask out the names of any third
parties whose consent to disclosure cannot be obtained. In the case
of older records however, guidance issued to local authorities by the
Data protection Commissioner advises local authorities to take a practical
view on how far they should go in trying to trace individuals who may
be dead or untraceable for some other good reason. However, the names
of employees of the authority cannot be masked out.
The Impact Upon Child Abuse Cases
In the North West of England I am co-ordinating the claims of approximately
300 alleged victims of childhood physical and sexual abuse who were
in care between the 1960's and the 1980's at 5 residential children's
homes. The claims are being brought against the managers of the homes.
All of the claimants have been trying to obtain their social care records
with very limited success for some time.
Shortly after the Act came into force the District Judge at Manchester
District Registry made an Order forcing all local authorities to disclose
their records in their entirety. This met multiple applications by Local
Authorities to set aside the Order on the grounds that it was illegal.
As a result of further applications by groups of local authorities,
the same court later amended the Order saying that, notwithstanding
the Data Protection Act 1998, the common law rules of Public Interest
Immunity still applied to applications for disclosure in civil cases.
It made two types of Order:-
- Manchester City Council – They agreed to send solicitors copies
of the records with sensitive parts highlighted so that the legal
team and experts could read the highlighted sections. Masked out copies
however had to be sent to the claimant. To use the highlighted sections
in evidence permission of the Court had to be obtained.
- The rest of the local authorities – A masking out Order was made
so that neither the lawyer nor the client would see the sensitive
sections without the permission of the Court. The second type of Order
seems to be the accepted protocol in child abuse cases.
The implications of the Act mean however that the Court
will more readily make an Order forcing local authorities to disclose
their records whereas previously it would probably have forced all claimants
to go through the Public Interest Immunity Third Party Discovery Application
route. As there are nearly 300 victims in the North West Case, multiple
applications would not have been practical.
What should a solicitor handle social care records?
Now that access to local authority data has been broadened,
many solicitors will be faced with clients who want to see their old
social care records. However, the sudden disclosure of emotionally charged
and sensitive information can be damaging to the person who was in care.
The whole process should therefore be handled sensitively by the solicitor.
In the North West cases we adopted an approach similar to that used
by local authorities, specifically:
- If the records arrive with sensitive sections highlighted, mask
out the highlighted sections and photocopy them with the highlighted
sections masked out.
- Do not send the records direct to the client. They have a habit
of being read by other members of the family, who might also be mentioned
in the records. This can stir up strong emotions of anger and revenge
and create chaos for the family. It could result in an action against
the local authority.
- Invite the client to a meeting at your offices and suggest that
he brings a trusted friend or relative to accompany him when he reads
the records.
- Before the meeting go through the records and highlight those sections
you want to discuss with the client so as not to prolong what may
be an emotional experience. The records can be voluminous.
- Consider using a specialised document collator company to organise
the records into a meaningful order, to comment upon any obvious omissions,
and highlight interesting points. In the North West Cases we are using
a firm called Mediscreen Limited of 36 Rood Hill, Congleton, Cheshire,
CW12 1LQ. We know that they are instructed in child care cases. They
have ex-social workers on their staff who can raise points that may
be missed by a solicitor who is inexperienced in the workings of social
services departments. Often the records arrive in a mess without a
chronology with parts missing. The task of organising them is often
too time consuming for the busy practitioner. As the hourly rates
of these companies are cheaper it represents a saving to the client
or Legal Aid Fund and the instruction will usually be authorised.
These types of organisation are better known in medical negligence
circles for collating medical records. The justification for using
them is similar in cases involving social care records.
- When the client visits the offices, discourage him from taking a
copy of the records away with him. Suggest that you store the records
at your offices in a secure place until the end of the case when he
can have his own copy. Remember however, that it is his right to see
the records under the Data Protection Act, and if he insists you must
allow him to take a copy away with him.
Conclusion
The Data Protection Act 1998 removed the concept of Public Interest
Immunity from the issue of access to social care records. At the present
time, however, it would seem that the courts are continuing to apply
the old common law rules. That has created a situation where there is
one rule for claimants who approach a local authority for access to
their records, and another rule if they seek records through the court.
In the former case the Data Protection Act entitles them to a copy immediately.
In the latter case, however, they are only entitled to see such portions
of the records that the judge allows or the local authority consents
to, applying the old fashioned rules of Public Interest Immunity. The
result is that vital sections of the records, which could have a bearing
on the evidence, can be concealed by local authorities, thus placing
an obligation on the claimant to make an application to the Court. The
masking out can also have the effect of hindering an instructed psychologist's
opinion on the case. For a comprehensive guide to the Act see the guidance
given to Local Authorities in a booklet which is downloadable from the
Internet in PDF format (you need the program Adobe Acrobat Reader) at
http://www.doh.gov.uk/scg/datap.htm.
ACAL (Association of Child Abuse Lawyers)
The Association of Child Abuse Lawyers was formed in 1997 by a group
of solicitors, all of whom were acting for the victims of historical
institutional abuse in children’s homes. It had become apparent that
the quality of client care being offered to severely traumatised victims
of abuse varied. The Association was formed in order to improve standards
of client care, give assistance to practitioners who were acting for
the victims of abuse, and provide training and access to legal material
so as to help those victims get the best possible advice and representation.
The Association extends to victims of abuse of any type whether emotional,
physical, sexual, the aged, the mentally handicapped etc A database
of experts of all types including psychologists, psychiatrists, Counsel,
and social care experts has been amassed as the cases rely heavily upon
them. A database of group actions currently running throughout the country
with their co-ordinators has been collected. The Association runs training
courses for practitioners, experts and survivors, conferences upon various
subjects, and a comprehensive website at www.childabuselawyers.com.
Whilst the Association was formed by Plaintiff Personal Injury Lawyers
we receive enquiries from victims who need criminal, family and care
lawyers. We are thus opening the membership to other disciplines to
enable us to fulfil that need. We operate a referral service for clients
to members of the organisation. We make about 15 referrals per month.
We currently have about 60 members nationwide, some of whom are associate
members from various expert fields. We are always looking for new members.
[Peter Garsden is a Partner in Abney Garsden McDonald,
Solicitors of Cheadle, Cheshire. He is the Press Officer and one of
the founder members of ACAL (Association of Child Abuse Lawyers). He
specialises in child abuse compensation claims and is a Personal Injury
Panel Member. He has substantial media experience and is currently the
Co-ordinating Solicitor for most the North West Child Abuse Group Actions]
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