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.
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.
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.
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 Simpson Millar LLP 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]
1st October 2000