Keywords: Information sharing, confidentiality, safeguarding
In order to ensure a disclosure is lawful and does not breach ECHR article 8 rights, consideration must be given to whether a disclosure of confidential information is necessary and proportionate before it is made. The discloser is required to consider necessity and proportionality: (a) regardless of whether the disclosure is in response to a specific request or being made proactively; (b) regardless of to whom the information is being disclosed; (c) both in situations (such as this case) which fall outside of statutory safeguarding processes AND where the disclosure is made in the course of a statutory safeguarding process. The criteria provided in the Police Act 1997 regulating the disclosure of information for the purpose of enhanced criminal record certificates (enhanced DBS) are applicable not only to disclosures made in response to a specific request but are also applicable to a decision as to whether proactively to disclose information.
The judgement states: “In these circumstances, although it is not without relevance that the disclosure of the information by DC Pain was to a LADO, I do not consider that either this or the provisions of the Children Act 2004 or Working Together to Safeguard Children, absolved the defendant from considering whether it was necessary and proportionate to disclose the information to MN. Indeed, although the provisions of the Police Act 1997 and the relevant statutory guidance did not apply to DC Pain’s decision, as he was not considering the inclusion of the information on an enhanced criminal record certificate, it was in my judgment necessary for DC Pain to have due regard to the criteria within those provisions; not only for the purposes of consistency in decision making in the same contextual field of employment, but in particular to ensure that he took into account the matters which were necessary in making a proportionate decision.” (para. 75)
In this case, a police officer proactively disclosed incorrect information about a teacher to the school that employed him, resulting in the teacher’s dismissal. The teacher had been dismissed from a previous teaching post for making inappropriate sexual comments to students. However the details of the behaviour were subsequently held by the professional body (General Teaching Council) to fall short of unacceptable professional conduct. The teacher had disclosed this information on application for the post he was employed in at the time of the disclosure.
A police child abuse unit had incidentally acquired knowledge of the teacher’s previous dismissal and the reason for it, having been involved in an unrelated case at the same college during that period. An officer in the unit had developed a mistaken belief that the teacher’s conduct had included inappropriate touching and that he had also been dismissed from a second post. The officer disclosed this incorrect information to the Local Authority Designated Officer. The false information was then disclosed to the school which dismissed the teacher.
It was held that the disclosure was unlawful because it failed to properly consider the context in which the disclosure was made (i.e. that it would impact on the teacher’s employment) and consequently failed to have sufficient regard to the teacher’s art.8 rights. Proportionate steps, such as checking what information had already been disclosed on the teacher’s enhanced DBS certificate and referring back to the original emails to verify what information the original college had disclosed to the police, were not taken.
A decision not to uphold a complaint by the teacher was also unlawful. The investigation had been insufficiently thorough to ensure procedural fairness. The complaints process had failed to (a) recognise that the complaint concerned the disclosure of false information; and (b) consider the officer’s failure to consult contemporaneous records prior to making the disclosure decision and the disclosure itself.