Should health professionals be anonymous or non-anonymous online?

This is a topic I’ve been thinking about for quite some time. Today, the General Medical Council announced that doctors should identify themselves on social media. To the best of my knowledge my own regulator, the Nursing and Midwifery Council, has not yet issued a similar rule. However, I wonder if this is an indicator of what other professions are also likely to do.

Professionals blog and tweet under pseudonyms for all kinds of reasons, and by no means all of these reasons are ominous. Ermintrude2 and Dr Grumble not only use their platforms appropriately and ethically; they also write extremely well and passionately. Some people just feel more comfortable under a pseudonym, and feel more able to speak frankly.

I’ve been Zarathustra on various blogs, and more recently on Twitter, over the years. I’ve grown quite fond of and attached to my online alter ego. Look at Zarathustra’s awesome moustache! I can’t actually grow a moustache in real life. Despite being a grown man any attempts turn into something resembling teenage bumfluff. I ask you, who wouldn’t want a tache like Zarathustra’s?

Over the years I’ve noticed attitudes to social media and healthcare steadily evolving. At first it was something of a free-for-all. I remember the anarchic days of NHS Blog Doctor, Dr Rant and Militant Medical Nurse. A lot of those early blogs were expletive-fuelled swearathons, with people yelling all kinds of earthy insults at NHS managers, at politicians and frequently each other. The language was of a variety that would have a fishwife telling people to tone it down a bit.

A lot of those blogs simply aren’t there any more. In some cases, I suspect it’s because people got into trouble. Some people found out the hard way that internet anonymity can be seriously overrated, especially in the long run. As behaviour on social media started to find its way into disciplinary hearings and fitness-for-practice investigations, the professional guidance became more detailed and suddenly everyone became incredibly anxious about social media. It became a demonic creature, waving a P45 in one hand and a letter from the NMC in the other.

That anxiety is still around, but I’ve also noticed a more mature set of thinking around social media starting to emerge. The Royal College of GPs’ Social Media Highway Code, and Victoria Betton and Victoria Tomlinson’s Social Media in Mental Health Practice give good examples of this new maturity. What these publications say is, remember your responsibilities to behave ethically, but also maintain a sense of playfulness to explore this evolving medium, and work out how it can be used as a force for good.

And there’s no doubt that social media can be a force for good. Last night I joined in the #mhnursechat on Twitter, which was on the subject of borderline personality disorder. This is a difficult topic, often laden with mutual suspicion on both sides. Patients with this condition are often regarded as “difficult” or “attention-seeking”. Professionals are accused of dismissing the suffering of people with BPD, and using it as a label to stigmatise and exclude rather than provide support.

The chat was joined not only by mental health nurses but also by a number of people with BPD. For an hour everybody talked openly, equally and respectfully. We talked about what the diagnosis means to people, what helps and what doesn’t help. The feedback from participants at the end spoke for itself.

“brilliant to be able to collaborate with mutual respect for each other, a wonderful experience”

“It was such a nice change to be included instead of being ignored and spoken over so to speak”

“brilliant to see and I am glad that patients welcomed in #mhnursechat not just professionals”

“What a brilliant & informative chat. Thank you all so much for joining in”

It reminded me of some comments by One in Four editor Mark Brown.

Social media, by its nature, puts together people who would never have met.  It creates strong public voices which didn’t get there through traditional routes.  It creates stories that appear from odd angles and at unexpected times.  It makes public issues of things that might once have remained behind closed doors.  It doesn’t let things stay where policy makers have traditionally put them.

It also creates a situation for mental health where it is less ‘them and us’ and more ‘just us’.    There is something hugely satisfying in seeing someone who offline would be seen as a ‘patient’ discussing online with someone who would be seen as an ‘expert’ and both learning from that experience.

Returning to the question of whether to blog and tweet anonymously or non-anonymously, there is the matter of accountability in all this. Ironically my recent Twitter run-in with Dr Christian Jessen has galvanised my thinking on this matter. I’ve been criticised for “calling out” Dr Jessen on his online statements. Personally I don’t think I’ve done anything wrong in that regard. I think he behaved disgracefully in an extremely public manner, and that I’m entitled to criticise that behaviour. But should I be hiding behind an anonymous ID to do so? If I’m confident in what I’m saying, shouldn’t I be willing to put my name to it, and if necessary defend it?

As well as being accountable, there’s also the matter of taking credit for what you’ve done well. There are pitfalls in social media, and if I’m honest with myself I think it’s fair to say I’ve made some mistakes along the way. But there’s also things I’m proud of, such as exposing the shocking lack of regulation in the psychotherapy industry. I’m also proud of helping create and maintain the regular This Week in Mentalists round-ups, in which bloggers take it in turns to tell us about their favourite online mental health writing. I’m proud of the #TwentalHealthAwards that I started this year.

So, I guess what I’m trying to say is this.

Hello. My name’s Philip Doré . Pleased to meet you.

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The trouble with Dr Jessen

In the last couple of weeks the Royal College of General Practitioners published their Social Media Highway Code. As a professional with a longstanding interest in how social media can be used constructively in mental health, I’ve often been disappointed that most guidance being issued tends to focus only on the negatives and risks of this new form of communication. The Highway Code is a welcome antidote to that: it acknowledges the risks and and the need to behave online in a professional way. However, it also recognises that social media has rewards and opportunities. I highly recommend it not only to doctors but to all health professionals.

Which makes it unfortunate that today I got caught up in the absolutely atrocious online behaviour of a doctor. A TV doctor, no less.

I don’t actually watch the TV show Supersize vs Superskinny, hosted by Dr Christian Jessen. I work with children and adolescents with eating disorders, and watching a show about it feels a little like taking my work home with me. I know that some people with eating disorders have complained of experiencing triggers from the show.

Ilona Burton is a journalist who writes for the Independent about eating disorders. She writes passionaately and well about the subject, not least because she’s in recovery from an eating disorder herself. In 2012 she was nominated for the Mark Hanson Award for Digital Media in the Mind Media Awards. She also holds strong views about the content of Supersize vs Superskinny, which she regards as socially irresponsible.

Early today, an increasingly heated debate was building between Dr Jessen and Ilona.

jessen7 jessen8

Dr Jessen then started retweeting Ilona to his 222,000 followers. The result was that Ilona started receiving tweets from Dr Jessen’s fans, some of them abusive. Ilona was clearly distressed by this, which really didn’t seem to concern Dr Jessen. For that reason I threw my own tuppence into the ring.

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I also tweeted him a link to the RCGP Social Media Highway Code, and suggested he pay attention to Section 7, “Treat Others with Consideration, Politeness and Respect.” He didn’t reply directly, but responded by retweeting me.

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The result was that I too started getting a large volume of tweets, which quickly turned into a Twitterstorm. As with the content being aimed at Ilona, some of the tweets I received were also hostile or downright abusive. It went on and on, lasting for several hours. This wasn’t helped by Dr Jessen retweeting more of my responses.

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Okay, maybe that last tweet by me was a little tetchy, but getting several hours of online abuse does that to me.

I’m a fairly opinionated tweeter, so I’m no stranger to getting hostile messages. I’ve had some nasty stuff thrown my way by supporters of UKIP, and also by people who object to the work of child protections services. I can honestly say that today was the worst and most intense level of trolling I’ve ever been subjected to.

I don’t feel I need any sympathy for that. I’m big enough and ugly enough to handle it. However, I’m saddened that it happened at the instigation of a fellow healthcare professional. I’m even more saddened that the brunt of it was also caught by someone who has lived experience of one of the very conditions that Dr Jessen talks about in his show.

Dr Jessen seems rather unrepentant about all this.

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What does the Social Media Highway Code say?

You have a right to express your views openly–but not to do so in a way that causes offence to others or infringes on their own rights….

When part of an online group, don’t be tempted into joining others in making derogatory comments or ‘ganging up’ on another individual – this behaviour could be regarded as ‘cyber-bullying’. Be wary of the power of the mob…

HEALTH WARNING: making derogatory,threatening or defamatory comments about others could have a harmful effect on your career. ‘I was just blowing off steam’ may be an honest explanation, but is not likely to be accepted as a valid justification by professional bodies or employers.

I hope Dr Jessen takes up my suggestion of reading the Highway Code.

Meanwhile, Ilona has posted her own thoughts on the matter in a vlog.

Rich Pickings In Foster Care

In January the Financial Times carried a piece about the investment potential for private companies seeking to invest in foster care. Entitled Fostering Sector Ripe For Consolidation, it begins in seductive fashion not with high finance or balance sheets but with the personal experience of carers who are clearly dedicated to the disabled child they look after. They don’t do it for the money – you couldn’t, because as they say it works out per hour at a fraction of the minimum wage. And that’s the last time children are mentioned as anything other than a commodity.

The economy of care has always been mixed and many private companies do excellent work, often with some of the most damaged children and young people. Yet the language of the balance sheet rather than the review form sticks in the craw and masks the realities of caring for vulnerable children to the standard they deserve.

Companies, including private equity, are attracted to the sector because of the potential for “cost savings” and “economies of scale”. Fostering is a “growth market” – Peter Connolly’s death and the increase in care admissions that followed becomes an investment opportunity.

Large companies from the health sector as well as private equity are gazing enviously not only at potential profits but also at the relatively high number of small to medium size firms who are ripe for a buy-out or as they call it, “consolidation”. Small-scale one or two person businesses, often started by social workers or foster carers from their spare bedroom, propelled the exponential growth in the independent fostering sector that began in earnest in the mid to late nineties. Now, IFPs care for almost 40% of children and young people in foster care.

However, many of the originals are keen to sell. Smaller providers feel pressured because of competition, the administrative tasks around Ofsted and contract compliance and the tender/contract process leaves less room for niche providers. They may also be coming toward the end of their careers and need to provide for their retirement. I’m not blaming them – these small companies led the way in the development of excellence in foster care practice in the days before and after regulation. With the big boys moving in, it’s hard to keep going.

This isn’t the world where we talk of standards of care, of healing relationships between carers and vulnerable children, not even of outcomes or aspirations. This is “the fostering space” where consolidation provides opportunities for profit, where large concerns, often multi-nationals from the health and, latterly, service sectors could invest and please their shareholders. This world has its own language: “It’s a classic private equity play. Private equity have been consolidating and investing in the fragmented domiciliary care space for the last five years and have begun to exit those investments to facilities management businesses. You can see something similar occurring in the fostering space.” I genuinely do not know what that means.

This is not new and I’ve written about it before on NSBS “Children In Care Are Big Business”, to the point where the FT article niggled away but I had not intended to go over old ground again. However, what made me write this was something I found out this week. Another private company (not the one mentioned in the piece) works at a profit margin of 30%.

That’s plain wrong. It may be irrational, it may be unusually high (although but I suspect it isn’t), for all I know I could be a wishy washy mung bean eating sandal wearing pinko liberal bleeding heart, but that’s an excessively high profit margin. As my piece from last year suggested, the best way to make money in fostering is to limit the services you provide for children and cut corners on matching, the process by which a child’s needs are matched with the capabilities of the carers. Take any placement, the money comes in and if it fails, blame the child or put it down to experience and move on to the next referral. Plain wrong.

The other way is to charge an inflated fee, which hurts cash-strapped local authorities struggling with constrained budgets precisely at the time when numbers in foster care are going up.

It chimes with other things that I have been told around and about. Carers from a private company who were told that allowances and services for children were to be cut back because local authorities were cutting their fees, when I know that company has increased the price it charges. A group of carers looking to change providers after the CEO arrived for a football match in his helicopter. Most tellingly, from my own experience on interview panels, the number of social workers seeking to move jobs because their professional standards have been compromised beyond redemption. Managers instruct them to take a placement when they know the match is not right.

I knew one of the candidates. She used to work for a small private company with a deserved reputation for long-term commitment and success with complex placements. The man who put this in place regretfully sold up after twenty years to a large national private company. Now, placement support services like therapy have been cut and she is forced to meet targets regardless of how appropriate the placement may be. That’s what is happening in the fostering space right now.

Can research save the NHS ?

This week it has emerged that thousands of deaths in the NHS may have been prevented if only people had taken notice of the figures on mortality rates in various failing hospitals, Mid Staffs being just one of them. The most shocking part of this piece of news on the BBC  Website is that people in powerful enough positions to do something about it actually knew about it!

This week I will be attending the RCN  (Royal College of Nursing) Research Conference in the beautiful city of Belfast and I am optimistically hoping that the people and research that meets there will be able to make some difference to the NHS. The research should help us to provide better care and prevent bad practice but that is only if people use it and if mangers encourage staff to develop new ways of working that is evidence  (research) based.

My optimism is very fragile however as I also remember attending an RCN congress event about a decade ago where the then Health Minister stood up and told us that there were too many staff in the Mid Staffordshire NHS trust and that there would have to be an immediate cull in order to balance the books.  Strange how  budgets can get so easily in the way of evidence based practice but then, maybe not.

Quashing the child protection investigation: self-serving or breaching the dam?

Yesterday I posted on our case of AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013). I said,

“I want to focus for now, in two posts, on two criticisms that have inevitably been made about our challenge to Haringey. In doing so, I can highlight two points of wider relevance that the case has achieved, that are comparatively unusual.”

This is the second of the two posts. Perhaps unsurprisingly, the second criticism that I wanted to focus on has already been presaged in the comments on the first post. The first post focussed on criticisms that would be likely to come from those on the child-rescue side of the child-rescue versus family-preservation debate (if you’re not familiar with the debate, or with it being framed in these terms, there’s a very thoughtful post by @suesspiciousmin here: Family Preservation versus Child Rescue). This second post focuses on criticisms that have been expressed from the other side, and it’s this:

“They only won because they were social workers themselves. Ordinary parents wouldn’t have won.”

[Once again, if you don’t know the case I am talking about, you can read commentary from:

The Guardian: Couple falsely accused of child abuse win damages from Haringey council

The BBC: Haringey’s social services child inquiry ruled unlawful

The Telegraph: Baby P council under fire for launching ‘unlawful’ abuse inquiry

The Mail: Parents’ social service hell after one anonymous letter]

The facts

So, briefly, an anonymous allegation is made to Haringey Social Services about parents who, it later transpires, are child protection professionals. Haringey seek information from the GP, asserting that they are undertaking a child protection investigation, and also from the school. Nothing damaging comes back, the GP says explicitly that he knows them well and has no concerns. They are contacted by mobile, and immediately challenge the lawfulness of what has gone on before; their challenge sets in motion a course of events which results in Haringey saying they are escalating to a full-blown child protection enquiry, which in due course is closed down, suspected of having been malicious, when no concerns are found.

OK, now let’s address the “they only won because they were social workers themselves” argument.

Briefly – to keep the HCPC off our backs on protection of title – I should point out that only one of them is a registered social worker with protected title (read the judgment here), and press reports suggesting otherwise are inaccurate. In fairness, however, both are child protection professionals, so the criticism could legitimately be rewritten, “they only won because they were child protection professionals themselves”.

Knowledge of child protection procedures

There are different points to make about their knowledge as child protection professionals, and their status as such.

It is unquestionably true that their knowledge was relevant. As the judgment records, at first contact, they realised that what had gone on before first contact must have been unlawful (paragraph 36). And it took a detailed inside knowledge of child protection procedures to realise this.

You might say that knowledge didn’t help. Fuelled by their knowledge, they challenged as they did; their challenge prompted the escalation. But I think it is probably fair to say that knowledge did help. Because when a social worker says, “tut, tut, you really shouldn’t challenge social workers like that”, the fact that your challenges turn out to be legally accurate, and your sense of grievance legally justified is likely to be going to help your cause.

Which, I fear, is a real hurdle for people who face equally wrong procedures, and whose sense of grievance is equally justified, but who lack the knowledge to express it accurately.

That is not fair. It’s also difficult for parents to address. It’s all very well saying that parents can arm themselves with knowledge about what should happen if contacted by a social worker, but many parents, like these parents, are caught on the hop with no forewarning that there had been concerns expressed, ever. Moreover, we had a couple of day’s legal argument in the High Court about what should have happened – are we really suggesting that what should have happened should be part of some sort of citizenship training for everyone? I think not!

Of course, if you do have warning, you could take time to acquire some knowledge and take some advice. Again @suesspiciousmin has posted some advice (with appropriate caveats and disclaimers):

You can say, if you wish, that @suesspiciousmin is a local authority care lawyer, and I (heaven forbid!) am not only a lawyer – albeit an independent one – but a registered social worker also, so neither of us can be trusted. But my advice is this: if you want knowledge that is going to help you win a challenge as AB and CD did, don’t go to the conspiracy theory websites. Don’t try to have your cake and eat it: AB and CD chose to stay inside the system, and to use the system’s rules. If you don’t want to do that, don’t be surprised if you don’t then get a sympathetic hearing.

Rant over. But the point on knowledge is made. It is a real hurdle, it gave an inbuilt advantage to AB and CD. But in fairness, why should it be up to parents to have knowledge anyway? Which brings me on to…

Duties of social workers

As I regularly argue, it is a social worker’s duty not only to get the law right, but also to be absolutely clear – and especially when using compulsion – that service users should be allowed to challenge and test whether they are doing so. The HCPC Standards of Proficiency for Social Workers in England include that social workers must:

“9.2    be able to work with service users and carers to enable them to assess and make informed decisions about their needs, circumstances, risks, preferred options and resources

9.3     be able to work with service users and carers to promote individual growth, development and independence and to assist them to understand and exercise their rights

9.4     be able to support service users’ and carers’ rights to control their lives and make informed choices about the services they receive” [my emphasis]

These are enforceable standards through regulation. Social workers acting professionally should be clear with service users that they are open to having the legitimacy of their actions challenged, and indeed how to do so. The BASW Code of Ethics is clearer than the HCPC Standards that assisting service users to understand and exercise rights includes rights vis-à-vis social workers themselves:

“Social workers should give people the information they need to make informed choices and decisions. They should enable people to access all information recorded about themselves, subject to any limitations imposed by law. Social workers should assist people to understand and exercise their rights including making complaints and other remedies.” [my emphasis]

This did not happen in this case, indeed it rather looks as though the opposite happened, that an attempt to assert rights received a hostile reception from Haringey (that, at least, is my reading of sub-paragraph (8) of paragraph 71 of the judgment).

So in point of fact, the law does not expect parents to have knowledge, it expects social workers to convey knowledge to parents, with regulatory consequences if they fail to do so.

Status

An alternative view of “they only won because they were child protection professionals themselves” is that it was their status that mattered – that they got special treatment because they were not “ordinary parents”.

Come on, credit where it’s due! There were social workers on both sides of this argument. Whoever won, there were going to be social workers who won. Or, if you prefer, whoever lost there were going to be social workers who lost. And the plain fact is that the statutory social workers acting as such lost the argument to the parents.

Moreover, this is a precedent – it is a case that will bind courts on similar facts in the future.

It’s worth saying a little more about that for a moment. There is an inherent problem within the family courts about challenging wrong procedures. The problem is this: because of the principle that the child’s welfare is the court’s paramount consideration, the court cannot punish the local authority for procedural errors or malpractice by failing to make the right order for the child. So the understandable perception is that the local authority gets away with the procedural errors. Prominent examples include:

But this case did not take place in the family courts. An inherent problem for parents was addressed by bringing the claim in judicial review. It is often argued that this is the remedy for procedural challenges, but it seems often not to happen.

In my experience, acting also for other parents who are not social workers, there are a range of reasons why it is unusual. All are in some way a little sad.

  • One is that if you lost in the family courts, it becomes more difficult, and therefore more risky, to argue that the procedural injustice needs a remedy. Would the outcome have been different had the social workers got the procedures right, and if not, why do you need a remedy? The answer to the first half of that question is, “possibly yes” and the answer to the second half is “because procedural justice matters”. But there is no doubt that the outcome – if you leave it that late – is put into the mix in reviewing merit.
  • A second is that if you have been fighting to keep your child, whether or not in care proceedings, and have succeeded, you will often just want to put the whole horrific experience behind you and move on with your life.
  • A third is financial. For some, at least, there is non-means-tested legal aid in care proceedings. And care proceedings (again subject to exceptions) are not subject to the ‘loser pays the costs of the winner’ principle. Not so in judicial review. Legal aid, if available, is means-tested, and the general rule is that costs follow the event – i.e. that you run the risk of paying the local authority’s costs if you lose. Sad, because it brings sharply into focus that legal aid rules are relevant to whether you can access procedural justice.

Note, however, that none of this discussion about the difficulties in getting procedural justice amounts to saying, “they only won because they were child protection professionals”. It is not true.

Moreover, it downplays the quite important precedent that applies to anyone and everyone subject to similar procedures. This case sets out at some length the differences between initial screening, initial assessment and child protection investigations. True, it isn’t or oughtn’t to be news, as all three of these are clearly set out in the relevant statutory guidance ‘Working Together’. But the relevance and applicability of the statutory guidance was contested. The relevance and applicability of the statutory guidance was upheld.

And the relevance and applicability of procedural justice was not – nor should it be – confined to child protection professionals.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

Data-gathering: damned if we do, damned if we don’t?

[I realise I haven’t posted for a while, but given that the widely reported case yesterday where Haringey was ordered to pay human rights compensation for an unlawful child protection enquiry was our case, it might be surprising if I had nothing to say! In fact, there is a lot to say here about good social work practice, details the mainstream press haven’t descended into…

If you don’t know the case I am talking about, it’s here: AB & Anor, R (on the application of) v The London Borough of Haringey [2013] EWHC 416 (Admin) (13 March 2013)

You can read commentary from:

The Guardian: Couple falsely accused of child abuse win damages from Haringey council

The BBC: Haringey’s social services child inquiry ruled unlawful

The Telegraph: Baby P council under fire for launching ‘unlawful’ abuse inquiry

The Mail: Parents’ social service hell after one anonymous letter]

The facts

So, briefly, an anonymous allegation is made to Haringey Social Services about parents who, it later transpires, are child protection professionals. Haringey seek information from the GP, asserting that they are undertaking a child protection investigation, and also from the school. Nothing damaging comes back, the GP says explicitly that he knows them well and has no concerns. They are contacted by mobile, and immediately challenge the lawfulness of what has gone on before; their challenge sets in motion a course of events which results in Haringey saying they are escalating to a full-blown child protection enquiry, which in due course is closed down, suspected of having been malicious, when no concerns are found.

I want to focus for now, in two posts, on two criticisms that have inevitably been made about our challenge to Haringey. In doing so, I can highlight two points of wider relevance that the case has achieved, that are comparatively unusual.

“Damned if they do, damned if they don’t”

Some have inevitably reacted that Haringey are “damned if they do, damned if they don’t”. Haringey gets it in the neck when it fails to intervene robustly, then when it intervenes too robustly. For example, comments on the Mail’s article (linked above) include “And if the child was at risk and they had done nothing?” and “No point in reporting any suspicion of child abuse then as a Judge says it’s unlawful to investigate. Crazy or what!!”

In particular, there are concerns about information sharing and data gathering. The judge in our case was scathing about Haringey’s unlawfully contacting other agencies without consent. He said,

“Issue 3: Was the data-gathering exercise before and during the initial assessment process unlawful?

76. The initial data-gathering exercise was unlawful in two respects:

(1) The initial request for data was sent to EF’s GP accompanied by the erroneous information that LBH was currently working with the family, that LBH was already undertaking a CYPS assessment and that confidential details including the possible presence of risk indicators of physical abuse, should be provided. In addition to these statements or implications being erroneous, no consent had been obtained from EF’s parents and it was not a justification to seek the information without consent that their identity was not at that time known since this statement was also untrue.

(2) The consent of the parents had not been obtained before the school was approached. Moreover, it was impermissible to post details of the referral on RIO to enable the school nurse to read them prior to obtaining the parents’ consent.

77. These were serious departures from permissible practice and these actions were unlawful.”

But isn’t “the child’s welfare is paramount: share, share, share” a lesson that is drummed into us?

Quite possibly so. And such an approach may be driven by an aversion to the risk that the next Baby P may happen on our watch, or a certain complacency that no-one ever challenges misuse of data in the child protection context and wins.

But it is wrong. The data-gathering that routinely occurs is often unlawful. It can be successfully challenged. There are good reasons it is unlawful. And it is not a case of “damned if you do, damned if you don’t”.

So, three questions:

  1. What does data protection law actually say?
  2. Why is that a good thing?
  3. How can we make sure we get it right both ways, i.e. share when we should, don’t when we shouldn’t?

What does Data Protection law actually say?

The Data Protection Act does not require us to share data. Rather, it sets out a limited set of circumstances in which it is permitted. One of these is with consent. A second is where it is necessary “for the exercise of any functions conferred on any person by or under any enactment”. This second one is widely relied on, but it requires what is termed a “statutory gateway”.

One such statutory gateway is section 47 of the Children Act 1989. In the context of a section 47 enquiry, we can share relevant information without consent (subject, of course, to complying with the relevant statutory guidance).

That being the framework, the judgment in our case begins to make sense. There was no section 47 enquiry. There was no consent. The data gathering was unlawful.

Why is that a good thing?

Even if you accept this is technically right (which the judge said it is!) you might think it’s a bad thing, getting in the way of effective child protection.

I rather think that depends how far you favour a particular model of coercive child protection – which I don’t. But the legal case for that particular coercive model is dubious. Partnership with parents is one of the principles underpinning the Children Act, and what this means in the context of data-sharing is set out in the statutory guidance ‘Working Together’ (the name says it all!) at paragraph 5.35,

“The parents’ permission, or the child’s where appropriate, should be sought before discussing a referral about them with other agencies unless permission-seeking may itself place the child at increased risk of suffering significant harm.”

So, there is a threshold test: will seeking consent place the child at increased risk of suffering significant harm? Data-mining without consent is predicated on an assumption not only that the child is at risk of significant harm, but that working in partnership with the parents will place the child at increased risk. Doing it routinely is sending out a message that we either have no ability to work in partnership with parents, or alternatively that we presume all parents will take it out on their children if we seek to work in partnership with them.

That message is dangerous. It is going to reinforce a stand-off between parents and social workers. It is going to reinforce mistrust and create a vicious circle in which co-operative working between parents and social workers is ever less likely. It is a bad thing.

So conversely, getting data protection right, as well as being lawful, and consistent with ‘Working Together’ is a good thing.

There is another reason it is a good thing. Human rights. Data-mining in child protection matters intrinsically invokes the Article 8 right to private and family life. As a human rights profession, we surely don’t want to routinely undermine human rights. In words of Eileen Munro I have quoted before,

“…liberal societies have placed a high value on privacy and confidentiality precisely because they present an obstacle to the State. While the State sees this in a negative light, the individual values it as a protection of their freedom. The professional ethic of confidentiality is seen by the government as an obstructive barrier to be removed in implementing their monitoring and assessment programme but this should remind us that the ethical principle is playing its rightful part as a protective barrier, defending the individual against excessive intrusion by the State.”

[Munro, Eileen (2007) Confidentiality in a preventive child welfare system. Ethics and social welfare, 1 (1). pp. 41-55]

How can you make sure you get it right both ways?

As the Information Commissioner explained in the context of Every Child Matters,

“The Every Child Matters agenda extends social care from protection to welfare. Although there are overlaps, this shift means that substantially more information will be collected and shared about substantially more children for different reasons. These different purposes raise different considerations from a data protection perspective. It is important that approaches used in the context of protection are not assumed to be transferable to the welfare context.”

[Protecting Children’s Personal Information: ICO Issues Paper, Information Commissioner’s Office]

Remember, then, there is a threshold test. Below it, you need consent. Above it, you don’t. Failing to seek consent when below the threshold is unlawful. Failing to protect when above the threshold is unlawful. It is not “damned if you do, damned if you don’t”. It is “damned if you do when you shouldn’t, damned if you don’t when you should”. Since the boundary between the two is clearly defined, you can get it right both ways and all the time.

Of course, you need to avoid other errors made by Haringey, you need to properly understand what is meant by significant harm, the boundary between child welfare and child protection, and the point at which section 47 bites. But that is another blog for another day.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers. He acted for AB and CD in the successful judicial review of Haringey LBC discussed here.

The Casual Cruelty of the Bedroom Tax

I recently spoke to a mother who was being hit by the Bedroom Tax. Because her son spends part of the week with her and part of the week at Dad’s, his bedroom in her home was declared a spare room. I was so appalled I asked her how this came about. This is her reply, which is published with her permission.

 

Over the past few months I’ve been hearing about the new Bedroom Tax. I read about lots of people who are losing money and in financial trouble because of it, including disabled people or people with disabled children. I thought it was disgusting for these people to have to pay this for bedrooms that are so clearly needed, for specially adapted beds and equipment for themselves or their child, or for carers to sleep in. But it didn’t occur to me that the bedroom tax was going to affect me at all.

Then in December I had a letter asking me to fill out a form to say who lives in my home. It said that if I have more bedrooms than I need my housing benefit will be reduced. I filled it in, stating that my son stays with me for four nights a week. It asked if I received Child Benefit- I stated that I don’t as his father receives this. We have joint custody and only one parent can claim Child Benefit.

I sent back the form and didn’t feel overly concerned, I live in a two bedroom maisonette and both bedrooms are being slept in – I don’t have more bedrooms than I need. I thought that this would make sense to them. Looking back, I think I was being naive or stupid. On the 25th of February I received a reply. It said that as my son’s father receives the Child Benefit they will treat him as the person who is responsible for my son and the person who provides him with his main home. Therefore they are unable to include my son in the assessment of my Housing and Council Tax Benefit.

When my son’s father and I split up I moved out of the house we were living in and took my name off the joint tenancy agreement. The housing association then told my ex that he had to move out as they now counted him as a single man living in a 2 bedroom house, even though we had joint custody and the 2nd bedroom was being used regularly. So I signed over the Child Benefit and Child Tax Credits to him so he wouldn’t be homeless. A few people told me that I was shooting myself in the foot so to speak, but I couldn’t live with him being evicted. The break up in itself was so stressful for me that I suffered a psychotic episode and was sectioned for a month because I was a danger to myself, convinced that I had to die to make things easier for everyone. Aspects of my mental health condition have a big impact on the way I handle change and stress and in particular conflict in my personal life. As a child I was made to feel overly responsible and guilty about the circumstances of certain adults in my life and was often put in positions of having to make choices that hurt someone no matter what or who I chose. As an adult the sense of guilt and worry about choices I make is still filled with the intense anxiety and panic I experienced as a child and at times that can tip me over the edge. 

It’s my wish to attempt to go back to work part-time, three days a week. I want to contribute to society, but at a level and pace that is right for me, that won’t set me back to square one with my mental health. I’ve worked hard to manage my condition and get to this place and I know that working full-time would be too much for me. However, if I work three days a week, the wage at my grade won’t be enough to cover my rent, bills and food etc (and now this bedroom tax on top) because I don’t have Child Tax Credits to top up my earnings. I don’t receive any financial support to look after my son. I’ve learned that I could apply to get disabled persons tax credits when I start work but this would only be allowed for one year, after that I have no idea how I would manage. I would probably have to go back on benefits. I don’t want this. I want to get into and stay in part-time work, not go backwards again.

I’ve discussed the situation with my ex. He is in the same boat. He is a carer for his elderly mother and is on benefits too. If he signs the Child Benefit and Child Tax Credits back over to me he will have to pay the bedroom tax and also then when he finds work won’t be able to have his earnings topped up to give him enough income.

Mothers and fathers are equally important to a child. I don’t believe that on paper it’s fair to say that only one of them is the responsible parent if both of them are caring for the child equally. I’m very sensitive about my role as a mother, I have a lot of anxiety about others assuming I’m not a good parent because of my mental health problems and for being on benefits, and it really hurt to see on paper that I’m not the ‘responsible’ parent.

I believe that parents who have joint custody of their children should have the benefits and financial support relating to a child shared between them by the DWP. If I wasn’t looking after my son at all and he lived with his father full-time then I would expect to pay this bedroom tax. But I do look after my son, as much as his father does.

I have to make a decision now about whether I push for the Child Benefit/Child Tax Credits, possibly having to go to court if he is unwilling to give them to me, or to stay in the position I’m in which is a very precarious one financially. Any day I will be called for my ESA review and medical (as thousands of others have been so far) and it’s likely I will lose that money, and will be put onto a single persons JSA – as I’m not considered to be looking after a child in the eyes of the DWP. There is no way I can support my son on JSA. I cannot make any progress in my life if I stay in my current position, but going to work will leave me worse off after a year when the disabled persons tax credits stop. This government want people back in work but they are making it extremely difficult for people to do so, how are you meant to get your life back on track with obstacles like these in the way? 

Some people might say that it’s not my problem what his dad has to deal with, ‘just do what you have to do, for you’. And there some moments I say to myself you just have to care about yourself now and forget about how your actions impact on someone else. But I can’t feel any conviction in that attitude. It’s not in my nature to not care about how others are affected by my actions (however it seems to be in this government’s nature). I do care about how things are for my son’s father, and how things are between us. It’s important for my son that we get along and for him to be able to continue to spend equal amounts with both of us – this could mean that he has to start living with just one of us – and then there will be a battle over who he lives with permanently. I can’t take that kind of stress and would be devastated to not have my son live with me at all. If his father signs the money back to me then I have to deal with the guilt of him being left in the same position that I’m in now. This government is pitting family members against each other, trapping them in dog eat dog situations.

I can’t cope with the stress and guilt of going to court over this, but I can’t carry on in this situation either. I feel unbearably trapped. Every morning I’m waking up filled with dread and fear over my future, suicidal feelings are surfacing and my mental health is getting worse and I’m really scared of going badly downhill again.

This government don’t see people as individuals, all with different circumstances and needs, we are just fodder to them.

To some extent you do have to put yourself first. But not totally, it’s about give and take, there should be a way for us both to be ok, not one person ok, the other left in dire straits. But this government is all take. Look after number one and screw you.