Attendees and apologies
Mike Burns, Social Work Scotland Norman Conway, Police Scotland Maureen Falconer, Information Commissioner’s Office Sally-Ann Kelly, CEO Aberlour, reporting to Coalition of Care and Support Providers in Scotland Jennifer King, Association of Directors of Education Scotland Annette Holliday, Community Practitioners and Health Visiting Association Joanna Murphy, National Parent Forum Scotland Juliet Harris, Together Scotland Lorna Greene, Royal College of Nursing Ann Houston, Child Protection Committees Scotland Eddie Docherty, Scottish Executive Nursing Directors Andrea Bradley attending on behalf of Susan Quinn, Educational Institute of Scotland Joy Atterbury attending on behalf of Norma Shippin, Central Legal Office, NHS National Services Scotland
Chris Creegan, Scottish Commission for Learning Disability Peter Hessett, Society of Local Authority Lawyers and Administrators in Scotland Norma Shippin, Central Legal Office, NHS National Services Scotland Susan Quinn, Educational Institute of Scotland Professor Paul Martin, University of West Scotland
Items and actions
Meeting commenced 13:30
Ian welcomed panel members and introduced anyone attending for the first time.
Item 1: Consent and General Data Protection Regulations (GDPR)
The Chair invited Maureen Falconer, Information Commissioner’s Office, to present on the incoming General Data Protection Regulations and relying on consent, as this was one of the main issues discussed during the recent legal focus group meeting.
Conditions for processing:
The presentation covered the conditions for processing personal and special category data. Ms Falconer stated that all conditions have equal weighting and it is for the data controller to be satisfied that they are relying on the appropriate condition. She recommended that a record is kept of the basis on which condition is used especially when not relying on consent.
General Data Protection Regulations:
Ms Falconer explained to members that the new GDPR clarifies that an indication of consent must be unambiguous and involve a clear affirmative action. She informed the Panel that GDPR requires individual (‘granular’) consent options for distinct processing operations and consent should be separate from other terms and conditions and should not generally be a precondition of signing up to a service.
When consent is important and appropriate:
Ms Falconer highlighted that consent must be freely given, meaning people must have genuine on-going choice and control over how the data controller can use their data. She explained that consent is appropriate if you can offer people real choice and control over how you use their data, which can also help to build trust and engagement. Maureen explained that consent is one lawful basis for processing, but there are alternatives. Where consent is not the most appropriate lawful basis for necessary processing, alternatives should be considered, such as complying with professional regulations. In this context, asking for consent is misleading. She informed Members that the UK Data Protection Bill is in working progress and further details will be available in due course.
The Chair opened floor to members for questions.
Juliet Harris, Together asked for a legal perspective on consent being included in the Children and Young People Information Sharing (Scotland) Bill. John Paterson, Scottish Government Lawyer, stated that, if consent were included on the face of the Bill, it would need to also provide that consent was not required where the Data Protection Act and GDPR do not require it, adding extensive detail. Some members suggested referring to the importance of consent in the Code of Practice instead.
The Chair reminded the Panel that the content of the Bill was out with the scope of the Panel’s remit but made clear that this request will be passed on to the Deputy First Minister.
ACTION: Officials to feedback the request for consideration to be given to including an explicit reference to consent in the Bill.
ACTION: Juliet Harris, Together Scotland to engage with EU counterparts and scope what work other Governments are developing in terms of guidance and implementing GDPR in relation to consent.
One member highlighted they did not think that parents were aware of their rights under Data Protection laws when engaging with public services. Members discussed the potential for power imbalance between families and public service providers.
Some members raised the point that there should be clear information provided to children, young people and parents that the Named Person Service is not compulsory for families and young people to use, but is an entitlement which can be accessed when families want or need it. Members requested that information should be provided to families on how they can opt out and back in to the service.
ACTION: As part of the positive awareness raising campaign about the Named Person service, which the Deputy First Minister committed to in November, officials are to consider how parents and families can be supported to understand their rights in relation to information sharing
The Panel acknowledged the need for training and support on changes under GDPR for the workforce, and noted that the National Implementation Support Group (NISG) is considering the workforce strand.
ACTION: Secretariat to keep the Panel briefed on progress on training and support for workforce led by NISG
Members requested clarity on the statutory duties that the Named Person service creates. Assurances were provided that the legal responsibility for the provision of the Named Person service lies with the service providers, and not with individual practitioners
ACTION: Officials and the Legal Focus Group to clarify advice on what the statutory duties are under the Named Person provisions.
ACTION: Getting It Right For Every Child team to map out which major organisations would typically be involved in sharing information for the Named Person service and where consent is appropriate.
Members discussed thresholds between child wellbeing concerns and child welfare concerns as key for decision making about information sharing for the Named Person service.
ACTION: Officials and the Legal Focus Group to provide further advice on what would constitute a wellbeing, welfare and child protection concern as these are all terms used in Scottish legislation and guidance.
Item 2: Framework for Primary Legislation, the Code of Practice, Statutory Guidance, resources and support materials - what For whom?
The Chair invited officials to provide an update on the work of the Statutory Guidance Framework Group (SGFG).
The Chair opened the floor for discussion.
Some members reported that they were reassured with the approach the SGFG are proposing. One member highlighted that some of those involved in the SGFG also requested a communications plan and a forward plan covering all eventualities are also included as recommendations form the SGFG. Officials confirmed that the latest version of the draft report from the SGFG included reference to both.
Officials highlighted that the primary audience for a binding Code of Practice would usually be senior managers and lawyers in service providers, but that feedback from stakeholders shows that the illustrative draft Code of Practice was not sufficiently accessible for parents, families and practitioners. Officials reported that the legal focus group had discussed the needs of all these audiences and suggested that the inclusion of a flowchart in the Code could be a way to provide a more accessible format for all stakeholders. Officials asked the Panel if they would be content to consider a flow chart for inclusion in the Code. The Panel agreed this approach.
ACTION: Officials to develop an accessible flowchart ahead of next meeting for the Panel’s consideration.
Item 3 – Stakeholder engagement – forward planning workshop
The Chair invited the Communications Manager from the Getting It Right For Every Child team to facilitate a forward planning workshop on stakeholder engagement. Members split into 3 groups to discuss 4 key points:
- What do you want to achieve from engaging?
- Who do you need to engage with and when?
- What are the opportunities and gaps in current GIRFEC engagements programme?
- What is your role and responsibilities in engaging?
The members provided their suggestions and ideas for the 4 questions which will be incorporated into a more extensive engagement programme in due course.
ACTION: Scottish Government officials to plan and design a comprehensive stakeholder engagement plan.
Priorities, date and agenda for the next meeting(s)
The next meeting of the Panel is scheduled for May and an additional date in April will be confirmed.
It was confirmed that the next legal focus group meeting had been scheduled for 4 April 2018.
ACTION: Secretariat to confirm the dates for upcoming meetings.
ACTION: Panel Members are invited to submit agenda items for the next meeting.
ACTION: Secretariat will circulate minutes and action points to the Chair and members and when finalised, publish them on the Scottish Government website as soon as possible.
ACTION: Members requested that papers for future meetings are shared further in advance in order to allow adequate time for panel members to engage with those they represent.
GIRFEC Practice Development Panel
c/o Scottish Government
Children and Families Directorate
Telephone: 0300 244 4000 (0300 numbers are geographically neutral)