UK: Access To Social Care Records

Last Updated: 4 April 2001
Article by Peter Garsden

Data Disclosure

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:

  1. 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.
  2. 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.
  3. 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:-

  1. 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.
  2. 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:

  1. If the records arrive with sensitive sections highlighted, mask out the highlighted sections and photocopy them with the highlighted sections masked out.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.