Protecting Our Children ? Confusion and Concern

zy zy zyxwvutsrqp zyxwvuts zyxwv zyxw NOTES AND SURVEYS 229 -. 1984b. 'Statistical information systems and management', Organization Studies. Thomas, Ray and Ann Stanyer. 1984. Towards statistics for policy making. (Social Sciences Occasional Paper) The Open University. (Alsoto be published in Social Policy and Administration in 1984.) PROTECTING OUR CHILDREN - CONFUSION AND CONCERN Where legislation extends substantially the field of public responsibility its consequences can rarely be predicted with certainty. It therefore becomes necessary at times to draw attention to the unintended consequences of such legislation, since these may be highly counter-productive. The law pertaining to children is one such field, where the post-war period has witnessed a flurry of legislative activity without parallel since the early 1890s. This essay is particularly concerned with the effects on professional practice of these legislative developments, and with their implications for the rights of individuals and professional confidentiality. Beginning with the 1944 Education Act and the Children Act of 1948, as well as the Nurseries and Child-Minders Act of the same year, new legislation gathered momentum with the Children Act, 1958 and the Adoption Act, 1958. The Children and Young Persons Acts of 1963 and 1969 respectively obliged local authorities to reduce the need for children to be received into care and codified the law on care proceedings (Rawstron 1980), while the Family Law Reform Act of 1969 and the Administration of Justice Act, 1970 developed the law relating to wardship proceedings. Dunng the 1970s a great many measures affecting the rights of children reached the statute book, including the Guardianship of Minors Act, 1971, the Guardianship Act, 1973, the Matrimonial Causes Act, 1973, the Children Act, 1975, the Adoption Act, 1976, and the Domestic Proceedings and Magistrates' Courts Act, 1978. Much legislation was consolidated by the Child Care Act, 1980, and other recent measures include the Foster Children Act, 1980 (Rawstron 1980). A good deal of this legislation arose directly out of contemporaneous concern about aspects of child care. Thus the Children Act, 1948 reflected concern about the conditions of children in residential care, highlighted in the Curtis Report of 1946 (Freeman 1981),while some of the 1970s legislation reflected great anxiety following the tragic deaths of a number of children, including Maria Colwell and Susan Auckland, at the hands of parents. While Parliament cannot appear impotent in the face of such circumstances, the fact that legislation has tended to be reactive in nature, to follow particular situations, and to reflect changes in social attitudes, has resulted in a piecemeal ad hoc approach in which underlyirg strategy is difficult to discern. Consequently, there has been a substantial fragmentation of the rights of families. Since 1969, for example, no fewer than eleven ways in which a child can come into the care of a local authority have been enacted in legislation (Maidment 1981). This increase in the role of public authorities has brought with it an erosion zyx zyx zy zyxwvu zyxwv This note was a commended entry in the 1983 Haldane Essay Competition. Public Administration Vol. Summer 1984 (229-236) 0 1984 Royal Institute of Public Administration zyxwvutsrq zy z zyxwvutsrq 230 PUBLIC ADMINISTRATION of the rights of the citizen, whether parent or child, since local authorities can implement the reception of a child into care, in various circumstances, without due process of law. Thus in 1980 nearly two thirds of all children (i.e. 8700 out of 13800) who were received compulsorily into the care of local authorities in England did so without due process of law: they had either been remanded to care or were subject to interim care orders (DHSS1982, 106). Where care proceedings have taken place, parents have not to date been party to them, have not therefore been entitled to make statements in court or to cross-examine witnesses, and have not been entitled to legal aid as, for example, in R v. Welwyn Justices ex parte S (The Times, 30.11.78). In certain situations where children have been in care, the resolution of parental rights by local authorities has not required a court hearing except when parents have formally objected (Adcock et. al. 1983,81). Concurrent with this extension of the powers of local authorities in the child care field have been changes in the working relationships and practices of professional groups. Particularly in cases where child abuse is suspected, a multidisciplinary approach is considered by most authorities to be essential, and this raises serious questions regardmg the extent to which confidential information can be disseminated among members of mu1ti-disciplinary teams. Medical evidence is of course very important, and must necessarily be relied upon by other professionals, such as nurses, health visitors and social workers, for example in the assessment of injuries. A concomitant, therefore, of increased public involvement in the lives of some families, with its emphasis on multidisciplinary working, is a marked challenge to formerly accepted principles regarding the confidentiality of the doctor-patient relationship, and the records arising therefrom. Much current practice is based upon the views expressed by the Committee on Child Health Services which commented: zyxwvu We have not thought it appropriate to discuss the complex issues involved in the confidentiality of clinical records. We would however wish to state as a matter of principle, that we believe the exchange of information within and between different professions to be essential for the health care of children, and that this should not lightly be foregone on grounds of confidentiality (Committee on Child Health Services 1976, para. 21.43). It is unfortunate that the issues referred to above were not discussed, as substantial changes in practice followed from the report. The Committee clearly felt that the interests of children overrode the need for confidentiality but unfortunately these interests were nowhere defined. It is only now, as a result of general concern, that the issue of medical confidentiality is receiving the widespread public discussion which should precede changes in practice. In looking at these questions it is necessary first to consider the legal and ethical position regarding medical consultations and the confidentiality of medical records. Doctors have always exchanged information about patients, and this is essential for good clinical practice. Such exchange, in the context of the referral process, cannot be regarded as a breach of professional confidentialty where it is implicit NOTES AND SURVEYS zy 231 that the patient has given either overt or tacit consent to the transmission by the referring doctor of such relevant clinical information as may be required by the doctor whose advice is sought. There are, however, certain criteria which must be fulfilled. Thus information can only be imparted to known individuals for specific purposes, with the patient’s knowledge and consent, and cannot be made available to third parties. Patients are entitled to presume that the referral is made with their best interests in mind, and transmitted information should not prejudice those interests. Accurate, objective information should in general meet this requirement, but in cases of child abuse the extension of the concept to include impreciselydefined emotional as well as physical trauma has meant that value judgements are frequently also introduced. The dangers of transmission of this type of information were spelled out clearly by the Committee on Data Protection, whose report (the Lindop report) expressed great concern about records of all types containing data which it described as ’judgmental’.Thus MIND was quoted as being concerned about the quality of social work records and asserting that many included ’information that is inaccurate, subjective and irrelevant’ (Committee on Data Protection 1978, para. 9.21). Similarly, Lindop had serious qualms about the computerization of existing child health records and quoted evidence from the Health Visitors’ Association whose members felt strong concern that the introduction of the National Standard Register presented a threat to privacy, in that information about each child could be placed on computer without its parents’ knowledge, and that there was no guarantee that government could not use the information for other purposes (op.cit. para. 7.05). zyxwvu zyx Lindop shared this concern, and commented that records currently collected on children by area health authorities ’warranted extremely careful safeguards to preserve confidentiality, ranging as they do from “home conditions” to ”illegitimate” . . . ’ (op.cit. para. 7.06). Lindop pointed out that social work records, because they were widely disseminated among a number of agencies, should essentially be ‘reliable, fair and accurate and where the data are based on subjective judgements that fact should be clearly indicated. (op.cit. para. 24.08). In the multidisciplinary context, this principle must apply equally to other types of data similarly circulated, including those of medical origin. In multi-disciplinary teams, professionals of different types may have difficulty in evaluating information released by colleagues in other disciplines, because it is frequently specialized or jargon-laden. Members of different disciplines may fail to appreciate fully the constraints of each other‘s roles. Thus doctors exchanging information with social workers at case conferences may be unaware of the full extent of the powers exercised by social workers in respect of the care of children. Similarly, the pronouncements of doctors may be treated as being more authoritative than they really are, both because doctors are respected, and because their opinions are generally regarded as deriving from inductive, scientific reasoning from objective facts. However, medical opinions in the field of human behaviour necessarily involve a considerable element of value judgement. 232 zyxwvuts PUBLIC ADMINISTRATION Not only may medical judgements be accepted in an inappropriately uncritical fashion, but the social dynamics of multi-disciplinary teams are such that a doctor may circulate information originating from another source, and in doing so give it the stamp of medical authority. Such information, for example from teachers, can enter medical records, which renders it inaccessible so that it can no longer be corrected. It may then contribute towards a diagnosis, for example of psychopathology, which sounds objective and scientific but is in fact a label based on value judgements. The danger of such subjective judgements being treated as scientific is that, unlike genuinely scientific statements, they can never be falsified. Popper (1959, 40) has shown that the main feature distinguishing a scientific from a non-scientific hypothesis is that the former is falsifiable and the latter is not. There is a risk that failure to falslfy a non-scientific but scientific-sounding proposition may be taken as an indication not that it is unscientific but that it is true. There are therefore good reasons why confidentiality should be maintained, in contrast to the system of communication that has been allowed to develop. Much information may be secondhand, as it is for example at child abuse case conferences where many of those present may have no direct personal knowledge of the child concerned or its family, and may not therefore be in a position to assess for themselves the evidence on which professional judgements are based. The team may form a united opinion as information is passed around and the different disciplines represented append their views. Team members may quote each other for corroboration, but at the origin may be a single medical judgement concerning an aspect of behaviour which, being unscientific, cannot be falsified. The labelling process thus begun is given momentum by two additional phenomena. The first is the tendency of people to interpret their observations in the light of their expectations. This leads to ‘fundamental attribution error’ (Hilgard et.al., 1979,543, in which behaviour is attributed to deviance without due regard to situational factors, for example the environment, as in ’total institutions’ (Goffman 1977), or physical disease. The second phenomenon is the elasticity of some of the terminology, so that terms such as ‘hyperactive’and ’lethargic‘, which could be used validly to describe particular extreme types of human behaviour, come in a labelling process to be mutually exclusive but comprehensive. An area of normal behaviour ceases to exist, so that the patient who is early or on time for an appointment becomes ‘obsessional’, while the one who is late is ’irresponsible’. Another pair of similarly opposed terms, elastic in meaning, is neglected/repressed. The more widely such terms are used, the less meaningful they become, so that parents may be told that their child is ‘hyperactive’, when in fact it is merely busy. The misuse of such words reduces the possibility of their being used with precision where appropriate, and the use of non-falsifiable labels raises the danger of symptoms being interpreted incorrectly so that physical disease might be overlooked. Thus three cases are quoted where the medical diagnosis was ‘anxious mum’, and the prescribed treatment was a tranquillizer. Later revised diagnoses were reached of congenital dislocation of the hip in the child. In each case there was a double hypothesis, a non-scientific (and hence non-falsifiable) one (‘this zyx zyxwvu zy zyx zy zyxw zy zyxw zyxwvu NOTES AND SURVEYS 233 mother is anxious‘), and a scientific one (‘this child is not ill’). The former was never disproved, merely supplanted by the falsification of the latter (Stacey 1980). It is now necessary to consider the implications of the various changes that have taken place. When a patient consults a doctor, the patient is entitled to presume that the content of the consultation will be treated in confidence. The consultation is privileged in law, but this privilege is not absolute but qualified, in the sense that a party to the proceedings may sometimes be obliged to communicate the information gained as a result of the conversation to some third party, such as a court, if there are Overriding reasons such as the public interest. Any doctor who passes on confidential information in these circumstances will not run the risk of losing an action in defamation brought by the patient as plaintiff, unless the latter can demonstrate that there is no such overriding reason, and that the breach of confidence has therefore been malicious. Doctors have for the most part been very concerned to maintain the confidentiality of the doctor-patient relationship, and this is particularly important in the field of alleged behavioural disturbance where, in the case of children, the principle appears in greatest danger of erosion. The Joint Ethical Working Party of the Royal College of Psychiatrists pointed out that psychiatric records differed substantially from other medical records in that they often contain ‘intimate social and longitudinal life histories of patients’ (Joint Ethical Worlung Party 19771,and that great care should therefore be taken to ensure accuracy and confidentiality. Failure to observe these criteria could result in a patient being labelled as deviant, possibly on the basis of false evidence concerning matters of record which, being factual, ought to be capable of correction. A doctor who circulated inaccurate information so that a family became labelled would, if he or she had failed to check the historical record, be failing in the duty of care. If the real facts of the case were for some reason unascertainable, any comments upon them would be essentially speculative and should not be treated as objective scientific statements. Of course, the goodwill of those involved in multidisciplinary teams concerned with the care of children is not in question. However, the problem remains that once errors are committed to the record and disseminated, there is no channel by which they can be corrected, and they acquire a momentum of their own. The only people who might be in a position to correct such errors are the parents, and they are frequently the last to know what is on record: confidentiality is often used as the pretext for excluding them from discussion. The National Consumer Council, in its response to the DHSS’S consultation paper on disclosure of personal social services records to clients, drew attention to the comment that ‘the long accepted principles of confidentiality applied to these records’. It observed: In too many instances this means that the only people from whom these records are kept strictly confidential are the subjects of them. It is common practice for information and papers on clients to be shared within an authority and between officials of other authorities including, of course, the probation service, the police and health service. We believe this interpretation of the word ’confidentiality‘ to be a misguided one . . .‘ (National Consumer Council 1983). 234 zyxwvutsr PUBLIC ADMINISTRATION This misuse of the word ’confidentiality’,and failure to understand its real meaning, are at the heart of the issue and raise important questions of natural justice. As has already been discussed, sanctions arising from the application of the not inconsiderable powers vested in social services departments as a result of recent legislation may be imposed as the end result of a multidisciplinary labelling process, so that process is in fact quasi-legal. In addition to overt legal sanctions, tacit ones may also be imposed, as, for example, when failure to correctly interpret symptomatology results in correct treatment being withheld, or when labelling results in stigmatization. Since the process is thus quasi-legal, the principles of natural justice followed by the courts ought to apply. Thus the precept audi alferem paltern (hear the other side), ought to be adhered to, but parents in labelled families may not be listened to. Their comments may be interpreted in the light of preconceptions, and they may not even have the opportunity to correct the record in formal proceedings, for, as has been pointed out, they may not have the normal rights of litigants to testify, or to examine witnesses. The other principle of natural justice, nemo iudex in C ~ W Rsua (no man should be judge in his own cause), is also disregarded, since not only does the multi-disciplinary team act in effect as one party to the proceedings, it also takes whatever decisions may ensue, and the professionals who are the prime movers may have an intense interest in seeing their views substantiated. A third principle, that defendants should be made aware of the allegations against them (Rendel 1981), is denied by the misuse of the word ‘confidentiality’. As a result of considerations like these, and of certain well-publicized cases, moves to make social services records accessible to clients have come about. Similar considerations apply to medical records, particularly in the multi-disciplinary context where much information may be interchangeable. Demands for subject access have come not only from organizations such as community health councils (Central Birmingham CHC 1981), but also from professional bodies. The British Psychological Society stated to the Lindop Committee (Committee on Data Protection 1978, para. 9.21) that the patient should have access to both psychological and medical records, and that ‘it was aware that psychological data were often unreliable and potentially harmful to the subject’. In Lindop’s view, the medical profession agreed that patients were entitled to factual information, but items such as diagnosis and prognosis were generally regarded as matters which ought to be kept secret at the doctor‘s discretion, because disclosure might be harmful and because of their often uncertain and speculative natures (op.cit. para. 24.05), though the climate was moving towards less concealment. Much of the discussion regarding the protection of the data subject from the misuse of confidential information has arisen from concern about the possible dangers of computerization of such material. The White Paper on Computers and Privacy (1975), the Lindop report itself, the European Convention on Data Protection, and the current data protection legislation have all stimulated intense debate (Bourn and Benyon 1983). However, computerization is not the root of the confidentiality problem, though it raises great concern because of possible increases in the scale of any abuse. There are two basic issues raised by access to zyxwvut zyxw zyxw zyxwvut zyxwvuts zyxwv zyx NOTES AND SURVEYS 235 personally-identifiable data held by third parties other than the subjects of that data, and these are equally applicable to manual and to computerized data storage systems. These are, firstly, how to prevent unauthorized entry, and, secondly, where the limits of authorized entry ought to be drawn. The latter is of crucial importance, and poses the question to what extent the rights of individuals risk further diminution since the actions of professionals and agencies involved in child care represent to a considerable degree the implementation of public policy. Information technology increases the extent to which organs of the state can monitor individuals, so in the case of medical involvement in the care of children it is necessary to consider the relationships between doctors and the state, particularIy insofar as government may have access to medical records. The DHSS view, expressed to Lindop, was that ownership of medical records conveyed a right of access, and that, in the NHS, this ownership was vested in the Secretary of State (Committee on Data Protection 1978, para. 18.07). The Joint Ethical Working Party of the Royal College of Psychiatrists observed in 1977 that, in consequence, any senior official of the DHSS may obtain case notes. In the DHSS’S view, the right to transfer information in medical records resided with the secretary of state, and the right of any recipient to use or transfer such information would depend upon the terms of the original transfer. However, the Home Office legal adviser advised Lindop that information was not susceptible of ownership, so the secretary of state could not legally limit the uses to which its recipients put any information they received from medical files. The data protection legislation introduced by the Government is effectively the minimum set of safeguards required by the European Convention on Data Protection (Seighart 1983). Medical records, being largely manual, are effectively excluded from its provisions regarding subject access; in any case, the photocopier may be a greater threat to individual privacy than the computer. It is clear that the pendulum has swung too far from recognition of the rights of children, parents and families. This has occurred for the best of reasons, as professionals and legislators alike have sought to prevent abuses, protect children and fill gaps in our social legislation. Perceived abuses have led public authorities to adopt an increasingly interventionist stance, and the result has been a marked diminution of individual rights. Family law has developed in a piecemeal fashion, and even the Child Care Act of 1980 represents merely a cobbling together of much existing legislation, with little attempt at defining overall strategy. A reform of family law is clearly overdue, and with it is needed a clear definition both of family rights and of the roles of public agencies. At the same time, multidisciplinary working, which is necessary to bring together various skills, should be governed by accepted and enforceable codes of practice, so that the roles and constraints of the different professionals involved will be more clearly understood. zyxwvut zyxwvut D. F. H. PHEBY Senior Registrar in Community Medicine Bath District Health Authority 236 zyxwvutsr zyxwv zyxwvu zy zyxwvuts zyxwvut zyxwvuts PUBLIC ADMINISTRATION REFERENCES Adcock, M., R. White and 0. Rowlands. 1983. The administrative parent. London: BAAF. Bourn, C. and J. Benyon. 1983. Data protection: perspectives on information privacy. University of Leicester: Continuing Education Unit. Central Birmingham Community Health Council. 1981. The case for: (Central Birmingham CHC, 161 Corporation St. Birmingham). Committee on Child Health Services. 1976. Fit for the future (Court Report). Cmnd. 6084.London: HMSO. Committee on Data Protection (Chmn. Sir Norman Lindop). 1978. Report. Cmnd. 7341. London: mso. Computers and privacy. 1975. Cmnd. 6353. London: HMSO. DHSS. 1982. Health 0 personal social services statistics for England 1982. London: HMSO. Freeman, M. D. A. 1981. 'Rights of children in care', in D. Rawstron (ed.)Rights ofchildren. London: BAAE. Goffman, E. 1977. Asylums. Harmondsworth: Penguin. Hilgard, E. R., R. L. Atkinson and R. C. Atkinson. 1979. Introduction to psychology (7th ed.). New York: Harcourt Brace Jovanovitch. Joint Ethical Working Party, Royal College of Psychiatrists. 1977. Report, British Iournal of Psychiatry 3. Maidment, S . 1981. The fragmentation of parental rights and children in care, Journalof Social Welfare Law 3, 21-35. National Consumer Council. 1983. Personal social semices: disclosure to clients - response to consultation paper I from the DHss. London: NCC. Popper, K. 1959. The logic of scientific discovery. London: Hutchinson. Rawstron, D. 1980. Child cure law. London: BAAF. Rendel, M. 1981. Natural justice and disciplinary cases in Britain and France, Public Administration 48, 67-86. Seighart, P. 1983. 'Information privacy and the Data Protection Bill', in C. Bourn and J. Benyon (eds.), Data protection: perspectives on information privacy. University of Leicester: Continuing Education Unit. Stacey, M. 1980. Realities for change in child health care: existing patterns and future possibilities. British Medical Iournal 280, 1581. zyxw zyx Correction Louis Troutman Alosi (Shippensburg, PA, US) writes to correct an error on p. 323 of the Autumn 1982 issue, vol. 60, no. 3. Line 11 should read: 'In 1932, Clyde Kelly, a member of the House of Representatives Post Office Committee, published a book . . .I.