 Cyhoeddwn i. Gweithio'n gweithio y dweud o'r 27 eich mythbladau yng ngyfans番wyr i'w clywed, sy'n estech yn y tymdd nhw'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio'n gweithio y dweud, i'w gweithio'n gweithio'n dweud i'w cymrydau i'w cyngor yma o'r gweithio i'w cyfrillodau cofant. Agenda item one is two panels of evidence on the Children and Young People Information Sharing Scotland Bill. This is the second last evidence-taking session on the bill. Next week we will hear from the Cabinet Secretary for Education and Skills. And can I welcome to the meeting Sally Ann Kelly, Chief Executive of Aberlour, Sheila Gordon, Director of Crossreach and Maggie Mellon from Notename Persons. Thank you for attending this morning. I should say to the panel members from the outset that all discussions will happen through the chair. So if you would like to respond to any question, please indicate to me and I will call you to speak. And can I also remind members in relation to both panels today that supplementary questions should lead on from the question being pursued. I'll go straight to questions from the members and start with Gillianne. Thank you, convener. I'd like to ask about the code of practice and I guess my question is really for those that would actually be using a code of practice like Aberlour, Crossreach. And given everyone the opportunity who's going to be using this legislation in whatever form it ends up being, to tell us what you're looking for in the code of practice? Yes. First of all, can I say that albeit I am the chief executive of Aberlour childcare trust, I'm here representing a coalition of charities that produced written evidence to committee. There were seven of those charities. And our view on the code of practice as stated in our written submission is that in its current state it was overly complex and overly legalistic in its wording. And I think you've heard that from other witnesses too. In terms of what we then think we require going forward is because of the complexities which we acknowledge in terms of some of the considerations around information sharing. I think it's really important that any, if there is a requirement for a code of practice, we need to be clear about who that code of practice is for, what its purpose is and therefore what it should read like. But our view is that it should be supported by statutory guidance. It should not stand alone. And that statutory guidance should be fully conversant with the law, but also produced and presented to practitioners in its fullest form so that they can exercise their professional judgements in a sound way based on comprehensive statutory guidance. Ms Mellon, what do you want? Yes, I mean I agree with Sally-Anne that it needs to be on a statutory footing. And I think we would definitely say that the definition of wellbeing would have to be absolutely crystal clear in it because that was one of the key points in the Supreme Court ruling was that there wasn't a definition of wellbeing and that the shenari indicators, that's called this, that's safe, all the eight indicators that are to be used for an assessment, you can probably know that, are very vague and subjective and that was the Supreme Court's opinion. And the faculty of advocates I think pointed to the need to have any code of practice or any guidance absolutely statutory and part of the legislation. And I think because of the history of this legislation it's really important that what is actually voted on is absolutely crystal clear and is compliant with the law. If you look at this stack of, this is the legislation that any code of practice or guidance would need to cover and this is what any practitioner would need to refer to in making the judgement. So I think it's, when you ask that question you open a huge subject and a huge area of concern. Ms Gordon. I would agree with the comments that Sally-Anne has made about the need for statutory guidance to sit alongside the code of practice and that that would be really helpful. I think in the third sector it can be really challenging to make decisions when you are a bit removed from other services where universal services are operating usually in quite an integrated joined up framework. So therefore I think it's all of more important that we have very clear guidance. I also think that the code of practice needs to be rights led from the start and I felt that there was a gap in the feeling of rights being reflected and that's rights of the child as well as rights of the family and that would be beneficial as well. Has there been the opportunity to, obviously this is a forum for you to feed in to what the code of practice might be, but are you going to be engaging with the Government on what you see the code of practice looking like? Certainly my understanding is that we will be engaged in that process. We've certainly had an on-going dialogue with the bill team and Government in relation to how the legislation is taking forward and we've certainly been given assurances that we would be involved in that. That's the same forum for yours now. Thank you. Oliver and then Daniel. Thank you, convener. The two questions I'd like to ask the first was picking up on the comments around the current code of practice being overly legalistic and I wondered whether the panel thought it was possible to have guidance that both met the requirements of practitioners but also the requirements set out by the Supreme Court. I think it can and I think we've got examples of guidance that already exist. For example, for against the looked after children regulations adoption Children's Scotland Act, very clear guidance is provided which would tick all the boxes that you've mentioned. I mean ultimately that's a matter for Parliament but I would suggest that there is good practice that you could lean on in order to inform that, a view on that. OK, I think which leads me sort of into the second question which is around parliamentary scrutiny. One of the big concerns that I certainly have and which I think has come out of a lot of the committee evidence so far is around the fact that there's no mechanism within the current bill for Parliament to actively scrutinise and vote on the final code of practice given how central it is to making this policy and this bit of legislation work. Do you think that Parliament should have an express or a vote on the contents of the code of practice? That is a parliamentary decision. I don't actually want to comment on that. I think that that is a matter for Parliament. I would say that absolutely Parliament has to have a vote on it. The difficulty with discussing just the code of practice before we discuss the actual legislation that's proposed is that the code of practice will not be any good unless the legislation is right. At the moment the legislation does not answer the criticisms that were made by the Supreme Court because, centrally, there is no definition of wellbeing within the legislation. There's a whole range of problems with it but I would say that's a central one and unless you get the legislation right it doesn't, in some ways, the code of practice is a secondary question. I would ask that the attention is given to actually looking at what is in this legislation, does it meet the code of the Supreme Court's criticisms and are we going to get it right this time because I don't think anybody would want it to have to go back to the Supreme Court again in the Parliament. The Scottish Parliament has got the powers to get this right and I think it's essential that you actually vote on the legislation with any guidance being in line with that and to make sure it is to take the advice that you've been given, I think, by the Faculty of Advocates and the Law Society. It's just a point of clarification both Sally Ann Kelly and Maggie Mellon said that the code of practice should be on a statutory footing, that there should be statutory grounds. Did you just explain precisely what you mean because that could mean different things to different people? So my experience of working with new legislation coming from Parliament in terms of practice that impacts on practice is that there will be statutory guidance that is attached to that. I think one of the issues for me is that the appearance of the code of practice may have confused the matter around statutory guidance and whether in fact it is something that stands instead of or together with and I think that's a matter for the Parliament to consider. But my view of it is that there should be statutory guidance at a very minimum but that statutory guidance has to be a very detailed statutory guidance that covers the whole of part 4 and 5 of the act, not just the information sharing part of it. So it embraces the name to person service and what that might look like in practice and what that might practice could be, including information sharing, but it does not stay silent on the child plan part of the act as well because these are the really essential building blocks of GERFET. Is that about detail or is it about the status of the guidance? I think that it's actually about both. Thank you. Good morning, panel. We've heard from previous witnesses about wellbeing and wellbeing indicators being helpful in understanding individual children's needs. Also that those things being too rigid would impede good practice when working with children and young people. My question is do you think that as they stand they are helpful and if not what would you have in their place? Yes, our view is that the wellbeing indicators are helpful. They offer a framework. It's probably not as detailed a framework at this stage as we would want and I think that would be certainly something that we need to consider in relation to any statutory guidance. They offer a framework. I also think that Parliament needs to consider the definition of wellbeing and whether, in fact, too stringent or narrow a definition of wellbeing could be counterproductive in terms of allowing professionals to exercise their professional judgment and how we could use the existing scenario indicators in a more proactive way to support that professional judgment but give a more direction than is currently available to practitioners. Thank you. Yes, I am a social worker by profession and I still practice. I think that there's very good, in fact even that can be quite difficult but the threshold of significant harm is a really important one for families to be assured that there won't be interference in their family life on a basis that's less than their child face's significant harm. When I say interference, I don't mean when a family asks for help and gets the help they want. That's not interference but the subject of judgment of somebody else about whether there needs to be actually compulsory interference and how parents are bringing up their children or the conditions of that is really quite dangerous. I think it damages trust between professionals. The opinion on the name person is well known and that you don't, clearly the title of your organisation suggests that you don't... I'm trying to answer the question about the wellbeing indicators and explain my position. My position might be well known but I would like it to be put before the committee about the particular dangers of using wellbeing. I think that we're not discussing whether all we aspire to is an intervention when there's significant harm. We've actually established that we want to support children and to help them before they get to significant harm. Apologies for interrupting but you're actually not answering my question that I've posed. I was trying to answer by saying compulsion on the basis of wellbeing is not right. The Government's often said that parents asked for the name person and parents of children with special needs did ask to be offered help when they needed it. That's not what the legislation says and I think that's the fundamental problem with it. Asking for compulsory intervention on the basis of subjective indicators and requiring professionals to interfere is not helpful. Can we just stick to the point when we get asked the question? Claire, do you want to come in on the back of that, just on the back of that? Yes, thank you, convener. Just on the back of that and I just wanted to ask, I suppose Sally Anne and Sheila, given the organisation that you represent, do you recognise compulsory interferences being part of the named person? Because that's certainly not my understanding of the named person coming from a nursing background and working very closely with children, families, social workers. I think what we need to do is just calmly return to the first principles of what this part of the act were about and those were about early intervention, supporting families early enough at the time that they need it. And what we know is that for the vast majority of families, that happens on an informed consent basis. So this part of the act for me is about looking at situations where you may not get informed consent for a variety of reasons. What potentially it does is it offers the opportunity to share information in a much clearer context in the early intervention stage than we previously had. There is no dispute in our organisation's minds about the thresholds around significant harm and welfare concerns. My child protection practice should not change as a result of this piece of legislation. It is for early intervention. For me and our organisations, we don't see this as being something that is not a term that I would use when I would be talking about the named person. Because we work with families primarily on the basis of informed consent and only in a very few circumstances would you have to go beyond working in that manner with families. And there would need to be good enough reason that the named person can use a professional judgment to consider and those referring information to the named person can use a professional judgment to consider if they don't have that explicit consent from the parent. I agree with that in principle, but I think there still is that challenge and it comes back to although we understand fully the wellbeing indicators and they are used quite widely now in practice. It's that where there are concerns for wellbeing and it's not necessarily about safety or a child protection concern. It's understanding that threshold for workers in particular in the third sector. That's the biggest challenge and it's not an easy problem to solve. I think that's where I don't feel that there's just quite enough clarity. There is that duty to consider wellbeing concerns. So where's the framework that the person would be operating in for that and that would be helpful I think if that was just teased out a bit more in detail about that framework for making these decisions around about a duty to consider wellbeing. Can I ask where would you see that being? Would it be in the statutory guidance? The guidance possibly. I wonder if I might explore what is a very considerable dilemma for this committee irrespective of what our views are on the named person policy and that we have heard many of the witnesses, several of whom support the policy in principle, but who feel just as you have intimated this morning that they feel very uncomfortable with the code of practice given that it's only an illustrative code and that it doesn't give them sufficient confidence. Set against the fact that the Deputy First Minister told the Delegated Powers Committee and I quote that he said very strongly that the code of practice is absolutely obligatory and binding on any individual who exercises responsibilities. In other words, that code of practice we've been told this by several witnesses is absolutely crucial when it comes to recognising what your responsibilities are. In relation to this committee and the duty that we have to scrutinise and then take it to the full Parliament, do you believe that with the current situation of an illustrative code that it is possible for us to do our job on an effective basis of scrutiny to satisfy the practitioners who have to operate this policy? I mean, my understanding is that there have been significant comments in relation to the illustrative code as it stands and I think an understanding that that needs to shift quite significantly. The matter about parliamentary scrutiny is one for Parliament, certainly as organisations we would be very pleased to be involved in the process around statutory guidance and the code of practice if it's amended to ensure that both of those documents, whatever those laws, look like if there's going to be two, are fit for purpose. You may choose that you also want to scrutinise it, that's your choice. Can I just pick up on that point? I think it's central, it relates to the issue about wellbeing. We've been told that the shenari indices are helpful but it doesn't extend much more than being helpful. It is not defined in law and therefore the concept of wellbeing can be interpreted in different directions. If the concept of wellbeing was defined clearly, do you believe that some of the problems that we're facing would diminish? It's a challenge to define wellbeing as is. Maybe reversing that and saying can we define where we would have concerns about wellbeing or can we have a framework around that? That might be a way of looking at that. Do you accept what Mrs Mellon said regarding the threshold? It's very clear if a child is at significant risk of harm and there's a real welfare issue. Do you accept the point that the threshold for assisting a child or intervention is not clear enough and therefore it's creating doubt in the mind of some practitioners as to when they should intervene and when they should have a decision to make that judgment? Would that be accurate? My view on that is that the introduction of this piece of legislation introduces new duties potentially on existing members of the workforce and I wouldn't want to be disparaging in any way to those people but those responsibilities are significant. Certainly what we need to do is, from my perspective, offer comprehensive training to those professionals in terms of their duties and professionals who refer into the name person service. This is not just about statutory professionals in the name person, this is about the whole system that supports the child. In that training we need to look at potentially a framework for wellbeing. I agree with Sheila, I think it's going to be really, really difficult to find a single definition for wellbeing given the number of areas of the child's life that that impacts upon. I think the scenario indicators could be used to develop a framework for wellbeing and take that to the next level but I think a single definition would be difficult to arrive at and I also think it could come with unintended consequences of restricting practitioners' professional judgment. Finding a definition of wellbeing is indeed a huge problem and there hasn't been a wellbeing definition brought forward. I think the difficulty when wellbeing is defined so broadly, I'm not at all averse to Parliament and Government being committed to improving the wellbeing of its citizens. That's the whole purpose of Parliament and Government. The issue, though, is to make it a definition in law that requires people to actually act. The danger when it's so broad and subjective, what one person's idea of what's good for children is quite different to another unless you're talking about what is obviously and that public and everybody would agree harm. Now, what you then might get is risk averse practice amongst practitioners and by thinking, oh, I don't want to be the one who doesn't pass on this concern, I don't want to be the one that doesn't share this and that then leads to lack of parents and children and young people feeling worried about a lack of confidentiality and about trust. You know, a health visitor, you want to be able to trust when your health visitor comes round and you confide maybe some financial difficulties or marital difficulties or just feelings of depression. You do not want that to go all round the system unless there's some evidence, you know, just on the basis of a concern about wellbeing. And I have to say, wellbeing, we've now got so many children in Scotland suffering from poverty. When named persons are asked to help, what help have they got to give? You know, can they give a child a meal or clothes or shoes? I know I can see people looking perplexed but I can't help seeing wellbeing as part of social justice. My last question, convener. At the start of this morning, Mrs Millan, you held up a word of paper that was in your opinion the legal information that practitioners would have to have good knowledge of in order to carry out their duties effectively. Could I just ask your two colleagues whether you feel that that legislation would be obviously binding in terms of the knowledge that they would be required to have? And in terms of the training that you mentioned, Ms Kelly, do you feel that practitioners are adequately trained to know these things? I'm not sure what Maggie has in that pile. What I would say in any professional context, there will be parts of legislation that are more significant and more relevant to the task that you do than others, so I think the training would have to address all of that. I've already said that, in terms of introducing that legislation, we would need to put in place comprehensive training for practitioners that includes the legal context, but it needs to be a proportionate training in terms of that legal context, not every dot-in-coma of every act, just the bits that refer directly to their role. Thank you, convener. Salian Kelly rightly said that it was for Parliament to decide on how to scrutinise legislation or draft proposed legislation, and you're right about that. But can I take it that you would like, as a practitioner and as a professional in this field, the code of practice to be published, to be clear, to be definable and to be easily understood by people in your professional world? Yes. And therefore, the statutory guidance that you've described, is that, in addition to the code of practice, is the idea that you're putting forward this morning that it is helpful to the understanding of that code of practice? Yes. And when you said that it should be statutory… If Parliament decides that there is a need for a specific code of practice, then my view is that there needs to be statutory guidance that sits alongside that that can be easily interpreted by practitioners. The point I was wondering about when you were describing that earlier on, by statutory guidance, do you mean that the guidance should all be laid down in a bill line by line, which could be a document of some length or not, which by definition will be law if this place passes it in that sense? Or do you mean that the Government will propose a piece of legislation that says that there will be statutory guidance and then statutory guidance is issued afterwards and it's discussed and so on and so forth? You'll need to forgive my lack of legal expertise on this. It's not really a legal question in fairness, it's just… No. I don't want to tie you in the law. It's one for the lawyers to decide, but… Well, I don't think it is that. I think it's a Parliament to decide because… Oh, or Parliament to decide. My point is if you have statutory guidance, you, Sally Ann Kelly, will do the following. Yes. And it's laid down paragraph by paragraph by paragraph. You probably deal with this all the time in your professional lives. If that's laid down in a statute in law, it is by definition the law of the land. If you disobey it, you'll be in front of the sheriff. Yes. Do you want that, or do you want statutory guidance, which a company is a code of practice, which says there shall be guidance, that's laid down in law, and beneath that, then, as a document comes out from the Government, which says, here's our guidance on this subject. I'm speaking on my own behalf here because we haven't commented on that in terms of the coalition. My preferred option would be the second of the two. Thank you. Sorry to tie you up in knots. It's okay. I'm wondering. You talked about wellbeing and then the threshold for child protection and that these are two very different things. Was it not really the case that the name person legislation came from a concern about the inability of the system to spot early enough that there were child protection issues and that young people were falling through the system because there wasn't one person responsible? It feels as if that's now shifted to saying, well, everybody knows about child protection, that's clear when the evidence of what we hear in our communities clearly and the tragic cases we know about, that's not true. And is there a way ending up separating off something which actually was supposed to spot early where there were issues that may develop into child protection issues later? I'll answer that. I mean, I think what I would want to say in that regard is that my comments earlier were in relation to the law as it currently exists in relation to information sharing for child protection. And I think that that law is clear. I didn't say that in all of the cases where it requires to be followed is followed. I think there are still issues for us in terms of consistency of practice in that regard. In terms of the origins of the name person, I would also accept that some of that came from some of the failures to share information adequately that resulted in specific issues in relation to serious harm to children, which is regrettable. But for now, this is about the early intervention. What I would also say is that one of the things that we need to think about as a country if we are truly committed to the earliest help for families is we need to accept that we need a cultural shift in terms of how services intervene or work alongside families to make sure that families feel confident about seeking that early help. We also, and I think that Maggie alluded to this earlier, need to be clear about what the purpose of information sharing is. And if the information sharing in the early intervention context is about trying to get extra support to families, then that extra support needs to be available locally. One of the things that our coalition is very clear about is that there is no consistency of provision at the moment in the country, and we need to think about that as a country if we are going to pass legislation like this. But I don't think we're conflating. We're not separating out the issues, but what I'm trying to do is be clear that this part of the legislation is not directly impact or should not directly impact on people's perceptions of when and if they can share information in a child protection context, because that hasn't changed. Yes, I totally agree that there is some clarity around sharing for child protection purposes. I think the problem you get with information sharing, yes, sometimes there have been problems that information that has been shared has not been acted on, that's one problem. But if you then make the mistake of saying, well, we must share information about absolutely everything and everybody, you then get to the stage, well, last week we were told there was 815,000 people in Scotland on a vulnerable person's database. So that in itself makes you wonder how long will it be before there are fewer people off, not on a database than on one. And so if you've got 850,000 people, because of this business of actually thinking we must record people, we must put down a record of something about their vulnerability or their need, 815,000 plus we've got over a million people with criminal records. So you're talking about a third of the population. That makes it needle in a haystack territory. If what you're concerned is children who might slip through the net and not be picked up and not be being helped. So I think that's what you need to look at in terms of the information sharing. It's not a wish not to help people. People, as Sally Ann said, there needs to be help. The help needs to be across the country. It needs to be available to parents and to children when they need it. And that's not what's happening. What's happening is records are being built up. People are sharing information, I think, in quite a risk averse way, and not actually knowing what they can do to help. And if there was an act that said, you know, children and families can ask for help and that it's the duty of services to actually try and provide help in order to help them, have good wellbeing, that would be quite a different kind of a different act to what we've been presented with. But I do think the danger of information sharing indiscriminately or on a lower threshold is that you get a lot of people and professionals actually can't discriminate between the child who's seriously at risk and children who have got a need. Although indiscriminate is not how this information would be getting shared. Well, that's a match of opinion, I think. That's a pejorative word that suggests that people will just be passing on information well and early. That's not the point of this. No, indiscriminate in the terms of if you don't define the grounds for doing it, for instance, what is your definition of wellbeing? There's discrimination about which information would be served. I mean that's the whole point of the Bill. I wonder if, as Mellon already said, there was an issue about defensive practice and the implication was you would share a lot. We've heard a lot about defensive practice but my reading of it was actually the opposite, that people would be ultra cautious and my concern would be that the things that maybe people would share now would not be shared in the future. I wonder if the other two panel members have a view on that because I think the fear being expressed to the committee is something that was well intentioned. The main practice makes things worse. One of the things we really need to be reassured on is that we may now be in a position that even those people who are most committed to ending up in a place where they're not going to be able to do it. There's at least as clarity about a duty to share but a duty to consider to share is slightly different. I wonder if you have comments on this issue about defensive practice. I think one of our concerns at the moment because of the census supreme court ruling and the period in between and the uncertainty that that has created for people is that we certainly know of some examples where people have been unsure or unclear about whether they can in fact share information. Certainly in our services and I think that that would be from an abrallir perspective but also from the other charities so there might well be concerns out there in relation to just an understanding of when it's okay to share information right now. I think that part of what we have argued for as a coalition is the comprehensive training for people because it's really important that that situation doesn't prevail and that children and families feel properly supported in all of that. Proper training and proper strategy guidance across that framework, that wellbeing framework would certainly help in those circumstances. I think that we've also argued for a nationwide campaign to clarify what the name person service is and what it isn't and within that be very clear about what circumstances families can expect their information or should request what their rights are in relation to the name person service. I think there's also what adds to the confusion for practitioners is a wider confusion in the public around the status of the name person, what it is, what it means for them because a lot of our practitioners are parents too so there needs to be a very clear statement and response from the Government around all of this to clarify that. The concept of wellbeing appears to be an important potential gateway towards sharing of information and I was wondering that given the question of consent how do you envisage that working with UK and European data protection law particularly in the light of the incoming GDPR? I think that that's a million dollar question really. We've not talked a lot about consent here and the data protection act requires consent for the sharing of information and informed consent at that. The GDPR regulations that are coming in are going to make that even more stringent because what they're saying is just having consent is not going to be sufficient. You have to be sure that this is informed that the people who are consenting understand the consequences of doing it. I think that that is a very important question. The data protection act, as I understand it will be amended by the GDPR or the guidance will, is actually quite clear and yet that was one of the reasons that the name person provisions were struck down by the Supreme Court and I don't think this act, the information bill does not actually address that at all. All it does is say, oh, all those problems that the Supreme Court pointed to, you now have to work this one out yourselves, keep within the law but share information and you will be punished if you don't or you might be blamed if you don't but the law itself is not giving you any clarity. The data protection act does and I think that if the understanding about consent was in the actual eyes of the guidance or the regulation or the bill then that would be important. I've already explained to many that I'm not a legal expert. I know the legal experts are in debate about this very point. Prior to that legislation being enacted I think I would be reluctant to comment much on that other than to say that whatever we do in terms of the law we need to achieve a level of consistency in relation to what is offered to families to make sure that there is a way to do that. There are no unintended consequences of any legislation that we may introduce in Scotland on which the GDPR legislation might impact. That is a challenge and we've not got the answers for that yet but we have to remember that most of the time, the majority of the time and the majority of circumstances we're working with active consent from families. We're working alongside parents. We're working alongside children. They know who we're talking to and they know what's happening. So it's a very, very small number of situations that we would be in where there would be concerns. I think that we just always have to remind ourselves of that and also going back to what I said earlier about children's rights and families rights in this. I think that if that's addressed then that gives us an in in terms of dealing with that as well. There was mention made previously of defensive behaviour in terms of practitioners. Given GDPR coming in and given comments from previous panels where they have indicated that already there is a degree of individuals within the different functions already exhibiting defensive behaviour. How is this going to impact overall this question of consent because we've heard again and again that it has to be proportionate in terms of the individual versus the local authority or the organisation that's receiving that consent. How is that going to work? I think we need to remember what Sheila has just said about the vast majority of families that we are working with and that universal statutory services work with them on a co-operative basis and they work with informed consent. So I think that we need to just bear that in mind and remember that in terms of the numbers there will be a very small number of cases where this becomes a significant issue. I think that we would be doing this system an injustice to suggest that this will cause absolute lack of clarity across the system. Most families, if you think about the principles of this, this is about early intervention. It's about saying there's potentially something here that could help your child in one circumstance or another to get help. The vast majority of families would accept that we need to share information as professionals in order to source that help because families want to improve the lives of their children too. And then the vast majority of cases families will see that as a good thing. In the light of what you say, are we making too much of the issues around consent? I would not say we're making too much of it. A Supreme Court judgment is a really important thing that we need to sort out here. I certainly would not say we're making too much of it but I think we need to just understand the broader context of when we will require to apply this. I was really referring to the GDPR and what appears to be what's coming out of that and the impact that that would have on consent. I wouldn't want to comment on that. It's absolutely true that many families who approach services for help give their consent to receiving that help and to any sharing of it now. What they might not be realising when they consent to that is what the consequences of that are. I gave examples earlier about talking to your health visitor and your health visitor might say, I'll make inquiries about getting some financial help for you or whatever. Does that person or he or she have given informed consent to the sharing of that information across a very wide number of people? In some of the smaller communities, that means that the teacher, everybody in the community that you know will know something that could be very sensitive. Confidentiality is the absolute guarantee of trust between professionals and the people that we serve. Unless people can be sure about confidentiality that things are not shared around without your knowledge, without your position and informed consent with the GDPR, people have been given shared information, not realising and neither have the practitioners that this can last for years and years into a child's life to the extent that when they apply to do a nursing course or a care course there is soft information about them that says they behaved in an inappropriate way when they were eight or they were thought to have behaved in that way. That information at the moment follows children through their lives. I think we're in danger of creating huge databases that people don't know they're on and that this information is following them through and that's what the GDPR, the informed consent that is meant to be about. So I think we all need to take very seriously the issue of what happens when we record something. Where does it go? Who owns it? Can you get it taken off? Because if that's breached, the problem is people don't have the money to go to court to get redressed and actually once information's out there you can't have redress, your privacy has been breached so you have to be really sure not to do any harm in the intention of doing good. Thank you. Sorry, Daniel, I wanted to come in briefly and then clear up. I just wanted to follow up on something Cyan Kelly was saying. You're describing that in the majority of cases working with consent and that this is about early intervention on the basis of wellbeing but given the Data Protection Act, is it really ever possible to share information on the basis of wellbeing alone when those child protection criteria haven't been met? Is it ever possible to do that without consent under the Data Protection Act in your view? It's complicated and it would be difficult to do it without some kind of consent. What I would also say just in relation to what Maggie has just said I think we do need to give credit here to the multitude of professionals who are already working in Scotland with a level of complexity and Maggie mentioned a housing situation and in smaller communities. I've lived in smaller communities, I have worked in smaller communities and people who are employed by statutory authorities and in the third sector, too, broadly understand their responsibilities in terms of data protection and I think it would be unfair to suggest that there is a party of information sharing going on in local communities which simply isn't what I see in practice in Scotland currently. From an existing practitioner. That was exactly the point that I was about to make. Our other question that I was going to ask the panel was about that that currently professionals and third sector organisations are bound by professional guidelines about information sharing and there is not a huge, great, big database somewhere sitting with everyone's data. I'm somewhat concerned that some of the information that we've had this morning might make people feel very concerned about approaching professionals and disclosing to them difficulties or problems that they have for fear that that is then recorded and is going to come back and haunt them in years to come. I suppose the question that I would ask is really referring back to the point that I made earlier. The challenge that we have to decide does this bill address the problems that the Supreme Court identified and in doing so does it make the intention, the policy intention, better or worse? I don't know what the views of the panel are. Is it fixable through this bill as the original intention of the legislation or is there some other way that this could be done other than by this legislation? I think I would say no. The bill doesn't solve the problems that the Supreme Court identified and a bill that said that parents and children and young people should be able to approach and get help and that services had a duty to help them would be more useful. The concept of the named person is in mental health legislation and there it's the patient who says, I want this person to represent me and act for me and to be able to have the information that psychiatrists and other people have shared. That's a completely different concept of named person. It's one that the person actively chooses. The problem that we need to address is this about parents or telling people what's good for them and acting in the way that we all think is good for them rather than listening to what they want. Families and children and parents are not objects of concern. They're active people in their own lives and they need to be the ones who decide to ask for help, what help that they want and to be listened to. The position of your organisation, full policy, doesn't work. Whatever was done to fix the Supreme Court wouldn't really satisfy. I think it's entirely legitimate position but I'm wondering from the perspective of others who did argue for the named person legislation, have seen the problems with it, have heard the suggestions that practice may be defensive, is this going to solve it, the problems that have emerged or is there something else we need to do to reach the policy aims of protecting families, identifying early young people who might be at risk and so on? I wouldn't like to make a comment in terms of the legalities of whether it meets the Supreme Court rulings. However, generally we're very supportive of the bill and of GERFIC principles and of the named person. I think there's work to do to make sure that that works in practice and we've talked about the importance of the guidance being specific and the support that's needed for people who are working in universal services in the third sector and various services across the country to really understand what their duties are in relation to the bill. Sorry to interrupt you but the feeling, practitioners are now in a more complex place with more complicated decisions to make as a consequence of this and is there an argument for going back to first principles what the purpose of the bill, the original policy was as either another way that can be achieved rather than managing what now feels like a very complex process with defensive practice may be overlaying it? I think on the ground on a day-to-day basis this is what people do. People have worked with children, they have concerns for children, they see successes and achievements of children. I think people are already working on a day-to-day basis. I think we just need to get this right. But does this make it more complex for the person making the decision? I think it's already a complex process. I don't know that I can say that it makes it more complex. Our view on that is that we were curious about this in our submission. We asked the question about whether in fact and it was a genuine question, does the legislation meet the needs of the Supreme Court ruling? In further conversations around that I think we understand that the intention is in introducing the new obligation to consider sharing that that is an understanding from the bill team that that is a step in the right direction. Our view on that is that we need to be very clear about even that duty to consider. I've talked already about that, the general wellbeing and being able to be more specific about that. I think there are the training issues which I think will help. I think the issue for me is how we implement. We too are very supportive of the name person. We're very supportive of the principles of GERFEC. None of that has changed. But we need to be really confident and honest in our discussions around how we get this right in terms of implementation. We accept there may be unintended consequences that might mean that we should start again. Again, this is what we are wrestling with as a committee. Are the unintended consequences of moving to a duty to consider where you would have to then provide evidence of how you'd considered what you considered against legislation which you've to make the judgment on whether in those circumstances and those unintended consequences in time, energy, resource, defence of practice outweighs the original principles or indeed overshadows the original principles of legislation. The coalition didn't go far enough in terms of making comments on that. My own professional judgment would be that as professionals, if you go back to the first principles of why this was introduced, there was not enough consistency across the country in those judgments that were being made about when and if to share information. I think that if we can come up with a piece of legislation which provides a framework and the legal ability to consider the circumstances in which information should be shared, then we should do that because what we need to do is ensure a consistent approach across the country and what we had historically and what we still have to an extent just now is inconsistency. And what we also need to think about is not just information sharing about but it is the purpose of information sharing. Frankly, there is no point in sharing information if nothing is going to be done positively with that information. So we need the network of provision of early intervention services to support families. So the actual consistencies on how we support families, what resources are available around a theoretical argument about information sharing would matter as much. It makes much material difference to families as to this question of... We all know there's defensive practice. The central principle is getting the right support to the child at the right time. Okay, thank you. Ross. Excuse me, this very much falls on from Jan Lamont's questioning. There's obviously been this debate amongst those who support the principle in the in-person around the necessity of legislation from where we are now. And I'm wondering what your view is on where the lack of information sharing provision would leave name person. To what extent can name person function without that information sharing provision without the duty to consider that's proposed? I alluded earlier on in my evidence to the need for practice and culture shifts within the system. Those practice and culture shifts will be required with or without information sharing component of name to person. I think an information sharing component on the name person will provide an impetus around the cultural shifts and practice shifts that we need to make as a country. And I hope it will also reorientate our provision towards early intervention and prevention rather than crisis driven services. Just on the issue of confidentiality and professional judgment the problem with the original name person provisions in the Children and Young People Act 2014 was it actually said to everybody breach your duty of confidentiality. You must share, it was a duty to share information it didn't mention consent so it wasn't compliant with the data protection act. We've now got a bill that says it's not a threat but it puts the responsibility on to practitioners to be compliant with a whole range of legislation and in a way I think I can see it's the government getting itself out of a problem here potentially but it's not, it's actually just pushing the problem down on to the ground and to people on the front line and I think that's not helpful so the issue of whether to go back to first principles and look at what is it that families and services is appointed to be their champion to be somebody that helps sort it all out. That's what parents with Children with Special needs have been asking for for years they've still not got it. The name person legislation and mental health legislation might be a useful place to look because that is voluntary and the person asks somebody they trust to get services to be coordinated and to sort themselves out. I just think it's really important given the complexities that we are really clear about what the proposed legislation does or does not say. The proposed legislation provides a duty to consider whether sharing of information should take place and allows professional judgment to share if the the due consideration basically points the professional in that direction. It's not a duty automatically to share all information. Just to follow-up a point that you've made earlier, Ms Kelly, around the need for a public information campaign to explain what name person is is there a danger that if we cannot proceed from here, if we cannot progress this, that is perceived in public terms as a defeat of the name person policy overall and that it potentially hampers delivery on the ground? There's certainly a danger of that but I think what's much more important is implications for children and families and one of the things that we're very clear about as a coalition in terms of that public information campaign as a coalition of charities that support the named person and more importantly support the principles of GERFEC is that we need clarity in the public realm about what the named person is and importantly what it is not. Thank you, convener. Just a point of clarification on that which I think you're right to seek. It is our understanding obviously that there is an obligation on institutions to make provision for named persons. There is not an obligation on families necessarily to accept the advice from named persons. Do you agree with that? And if you do do you feel that that's been well spelled out so that there's good public understanding of that? I agree that families and certainly the coalition have argued from the outset that families should have the right to some type of address in terms of the named persons decisions if you like or so absolutely we would support children's rights and families rights in that in terms of the communication of it not to accept the advice of a named person. Yes, people have the right to do that absolutely and they need to have a proper process through which they can be supported to do just that. I think in terms of the communication in relation to this whole part of the act that I think there has not been proper public clarity to the public in relation to named person and I think that's something that the Government needs to pay a lot of attention to following this committee's deliberations about how this information and how the decisions are taken forward and actually the Government need to front that information sharing campaign, sorry not information sharing campaign but public information campaign. Thank you very much, very briefly. Following on what you were saying about asking the Government to actually provide clarity and all this would you agree that the media have a responsibility in making sure that they do not use hyperbole in this respect because I think that a lot of that has really informed public opinion. I'm sure the media do have responsibilities I think that part of what we need to do in terms of we need to accept that we have a free press we need to accept that they will give their own interpretations of stories and I think that the most eloquent challenge to that is by actually having a very clear, very concise and very precise campaign from Government about what the Children and Young People Act is about and namely what section 4 and 5 of the Children and Young People Act is about especially the name person. Thank you, Daniel. Thank you, so the submission from the joint submission with the Children's Charities states that this doesn't change the legal landscape around what information can be shared. Given the discussion that we've had about thresholds and early intervention and wellbeing criteria I just wanted to, did the panel agree with the point that essentially this doesn't change what information can be shared, that will still essentially be governed by the Data Protection Act or it's successor such as GDPR. We posed a question because we were genuinely unclear and the response from the bill team is in relation to the introduction of the duty to consider that that is a different that changes the information sharing part of the Children and Young People Act. But it doesn't change. Sorry, carry on. No, it doesn't change the Data Protection Act. No, it doesn't. So it doesn't change what information can be shared. There is a discussion which I've alluded earlier on between lawyers that has to take place around and I'm no legal expert but the lawyers need to look at this and Parliament needs to listen really carefully to what the lawyers are saying in relation to the implementation of this. I just wanted to make the point that yes, no the law doesn't change the Human Rights Act, the Data Protection Act all prevail and provide the framework for information sharing. So to have a bill that just says that information should have regard to the law seems a bit they can only share information in accordance with those laws so I'm not quite sure why this government thinks this solves a problem. So given that what can be shared is really determined by the Data Protection Act and its successive legislation on that and this act is saying that you need to consider where the share on the basis of wellbeing so you've got one act setting up what you can share and then another act and another set of criteria asking on the basis that you consider does that not create a conflict or a tension between the criteria which professionals are being used to assess and the information that they may or may not share? I would say yes absolutely it does and that is the central problem. Oh sorry. Okay anybody else? I mean again I'm not a legal expert and I think there are varying views on this so I mean we posed a question we've heard what the justification from the bill team is it's entirely it then becomes a matter for parliament and your advice about that because it's very complex. And just finally and briefly I mean we've talked a lot about the code of practice we've talked a lot about its legal standing and parliamentary person I think that is a matter of parliament but just from your perspective do you think you'll really be able to be in a position to judge this legislation until you have received the final code of practice from the government? Kind of back to where we started first question don't we about the code of practice? We've been very clear that our submission has encouraged committee to return to the broader context within which we're trying to implement that so we wouldn't just judge this based on the bill itself or the act it would be also in relation to everything that goes around that so the code of practice is relevant as is the statutory guidance and any investment that we make in the training of the workforce and in looking at how we invest in early intervention services in communities all of that is relevant and will be relevant to whatever this act looks like in the final analysis Just I think unless you have a clear definition of well-being that fits with the existing legislation that is a huge that's the big problem with the act and it is likely to end back at the supreme court again because that is one of the things that was pointed at well one of the key things no definition of well-being practitioners are being urged to consider sharing they were previously told to share they're now urged to consider but if they do that they've then got to take all this into account so the definition of well-being is central Do you want to come in Ms Goblin? No, I just think it would be really important if the bill were to progress that the statutory guidance should be available Okay, thank you I'm finally clear are you wanting to come in on this? I just want to make a point of clarity and I'll refer members to my register of interests a mental health nurse Melon has made reference to the named person under the mental health care treatment act Scotland 2003 they are completely different the named person under that act that's where someone can nominate someone to act on their behalf when they are either under the mental health they're being detained under the mental health act or there's an application for them to be detained under the mental health act it doesn't apply if someone has a voluntary admission to hospital it's a complete misnomer to complete these two issues Okay Okay, very right Ms Melon Do you want to come back in on that? Well just to say that the issue was whether it's somebody that is trusted by the person and is appointed by them I was going no further than that but that is actually what the other way that the term is used named person so I was pointing to the fact of the voluntary nature the fact that it was somebody you trust somebody that was actually charged with getting services to serve you because what was happening before that's not when the name person under the mental health act is I was pointing to it as a concept of voluntary nature Sorry, I was sorry Thank you The points have been made, thank you very much for that In that case that draws us to the end of this session I wish to thank the witnesses very much for their attendance and we will suspend for a moment to allow the witnesses to leave before continuing on to the second panel Thank you very much Bring the meeting back to order and I now welcome the witnesses for our second panel Kirsten Hogg Head of Policy Bernard of Scotland Alison Reed, Principal Solicitor Clan Child Law Professor Nancy Locke Chief Executive Families Outside and Eileen Pryor Chief Executive Scottish Parent Teaching Council Welcome Thank you for attending this morning I mentioned to the first panel please indicate to me if you would like to respond to a question and I will call you to speak I go straight to questions from members we've changed the order of the questions for this panel so I'm going to start with Daniel I'd like to address this in the first instance to Alison Reed but other parents may want to join in In the Clan Child Law submission the phrase used that this legislation doesn't permit any more information to be shared Given that I was wondering if you could clarify a point that I raised with the previous panel is sharing information based on wellbeing without consent is that permissible or possible or not Yes, thank you First of all I'd just like to respond to that part of the question the bill doesn't alter the circumstances in which information can be lovely shared that is correct and I know that the following question was around the duty to consider obviously there's a duty to consider but that doesn't actually mean that that changes that threshold that's just about considering whether to share information rather than actually when you can share it so to answer that question it doesn't change the current legal framework so unlike the previous act which did change the current legal framework this can't because it's sitting beside human rights law and data protection law which this bill it does not affect So just on the very specific point if information didn't meet the child protection criteria set out in the data protection act but a professional did have concerns about wellbeing they would need to obtain consent in order to share that in your opinion I think that there was apart from the issue that was raised by the information commissioner that left described a little area where that might not be the case which is around statutory functions if you put that aside a safe approach certainly would be to look at the child protection criteria threshold unless you've got consent Does anyone else on the panel have a view on that at all? Well we raised a question in our written submission as you know about how much the legislation developed the existing legal landscape and we asked that I think at that time from the point of view of thinking about our own practitioners so actually they're often in receipt of information they have to consider what to do with that and whether or not to share it and so from that point of view we didn't see what the legislation looked like having however had conversations with the bill team around the policy intention of the duty to consider we have thought some more and I speak here on behalf of Bernard was not the rest of the coalition but we have thought some more about what that duty to consider can contribute and while it doesn't change what can be shared or in what circumstances we are supportive of the policy intention from the bill team that that will help to provide greater consistency on the ground as a national organisation is that in some areas where GERFEC is well embedded information sharing can it is happening with and by the name person but in other areas of the country there are children and families who are not being supported in the same way by the GERFEC system and so we are supportive of that policy intention we don't think the legislation is the only answer there's a need for other support which no doubt will come on to talk about the statutory guidance and the training but we are supportive of that policy intention so although it doesn't add anything in terms of what information can be shared we do believe that that duty to consider is important Professor Locke we do have specific questions around the issue of consent as I said in our written submission our submission was very specific our organisation supports children and families affected by imprisonment the question is whose information is it, whose consent do you need to get when for example a parent goes to prison is that the parent's information or is it the child's information obviously it's something that affects the wellbeing of a child imprisonment of a household member as an adverse childhood experience and recognised as such but it's whose consent we would need to obtain particularly because something like imprisonment is technically a matter of public record but there will be other occasions in the section under the mental health act whose information is it and whose consent do we need for that so it just raises some wider questions Could I just follow up with question Hogg on what she just said and I completely agree consistency is absolutely vital but can we really have consistency if we have one set of criteria which dictate what you can share and then we're asking practitioners to consider what to share on the basis of another set of criteria so it's slightly struggling with how two sets of criteria can really help that consistency What we meant in terms of consistency was consistency around the implementation of the named person and around the information sharing aspects of that I think that the wellbeing criteria are subjective and practitioners really value that the value being able to use their professional judgment and to think about individual families and individual children and the different needs that they have so it's not consistency in that regard necessarily what we're looking for but consistency of approach rather than consistency of decision Ms Wight The difficulty is that the bill introduces a duty to consider sharing information based on wellbeing which we think is disproportionate and unnecessary and there's a number of difficulties firstly around that that has been discussed already around wellbeing being so broad but also we think that practitioners must already consider that there's a child protection around child protection issues anyway and already under legal and professional duties and this was specifically commented on by the Royal College of Nursing who were worried about defensive practice as a result of those provisions that were necessary we also think it causes confusion because I think as Daniel was explaining it creates another step in the decision making process around wellbeing which is not the threshold at which information is then to be shared which is around obviously the thresholds set by data protection and human rights and confidentiality which makes it I think then leads you into more difficulties or potential difficulties in being human rights compliant the other issue is around the purpose of this duty to consider which is set out in the policy memorandum around being to encourage or to prompt information sharing in my view legislation is not the way that you encourage or prompt information sharing that could well have unintended consequences as I think have been already pointed out earlier today what we think is that actually we don't need any further legislation we have a current legal framework within which this information sharing part of this bill could operate but what we do need is to have clear, robust, accessible national guidance which is not on a statutory footing and because we think that that creates all sorts of that simplifies all sorts of issues that the committee have been grappling with so far because then you don't need a code of practice because actually there isn't any a new legislative information sorry Can I ask then just just a point I think that Ms Hogg said earlier that this practice is going on just now but it's not going on consistently across the country was that right, was that the point you made and is that not the purpose of at the end of the day is that not the purpose of what we're trying to get here? I think from our experience there are areas of the country where the GERFEC approach is well embedded where information sharing with consent in accordance with what this bill sets out is happening but I think what is new in some areas of the country is that information sharing around child protection concerns and with social work is very well embedded but the sharing of information amongst universal services for the purposes of early intervention in some parts of the country is newer than in other parts of the country and that's the way we would be looking for that consistency Professor Lawson I just want to add that although I think we've established that the concept of wellbeing does need to be clarified we would disagree that child protection is enough just in the sense that there are issues that will have a dramatic impact on child wellbeing that are not necessarily child protection issues again imprisonment of a parent being one of those I also wanted to follow up on the point regarding consistency, there is a concern that if we don't have a clear enough definition of or guidance of what wellbeing is that decisions about what should or should not be shared might be swayed by capacity and resource across different areas as much as by impact on the child Can I just finally follow up following on from that point I think we've already established that this doesn't change what can be shared without consent so on that basis I'm very interested in the point whether or not this policy could proceed without information sharing provision I think the points around consistency are absolutely well made but are those not a matter of policy and I'm just wondering what the name person policy might look like and what it might be able to do if it proceeded without the information sharing provisions that we're looking at today I'll put that to a clan law for a second submission Our SPTC's approach to this legislation really from way back has been from the perspective of families and what does this offer families and it has certainly always been put forward as not being about child protection that it's about support for families if it's about support for families then it requires families participation and it requires a consent and I think that that is just a absolutely top line in our previous session you heard that the majority of work with families is done on a co-operative basis one of your previous panels said that the majority of families are looking for support are asking for help therefore that is on a co-operative and with consent basis it's a tiny minority of families where they don't have that approach and those families that will be a child protection issue I think that we can quite clearly identify that most families if they are wanting support understand and the professionals and the third sector organisations working with them will explain that if I'm going to help you I need to speak to people I need to share information and that's absolutely right and families will almost certainly be absolutely happy with that so I think we're getting to the nub of this that really this is not this is trying to solve a problem that doesn't really exist that in fact you have a small minority of families and you have children who are at risk and that's where we're struggling with this okay thank you Ms Reid we like lots of others around the table are very supportive of GERFEC and we can see some benefits in the name person scheme particularly about just getting that single point of contact but where we've come down on this is that we think that the name person scheme could continue but without the information sharing legislating on the information sharing part of the act we think that there's wellbeing might be an appropriate concept itself in informing the duties of local authorities as is set out within the act the difficulty we have around wellbeing is that part of being used in relation to information sharing and using that as part of the threshold that the act itself could continue and the name person scheme could continue but without legislating on the information sharing I do have concerns about whether child protection criteria is enough you mentioned Eileen about if there's a small minority of families who aren't happy to share that information that is a child protection issue certainly in the case of imprisonment of a parent that's not the case it's not necessarily a child protection issue but there will be a big impact on that child if that information is not shared and supported in some way but it's a very difficult thing to encourage parents to be willing to put themselves in that position and I would absolutely agree with that but the reality is that the data protection legislation will require informed consent from whoever that data is whether it's the parent or the child so you're always going to have to have that informed consent except at the point you made earlier on was that those who may require support but didn't seek it were clearly child protection issues no, I didn't say that that was what I was saying that you will find if you look at the data actually these are the child protection issues these are the families which are in crisis and where professionals are looking and saying really, we have to safeguard that child because there is a risk of harm and risk of harm is a clear measure OK, Ms Hawking OK, thank you Liz, you wanted to come in Thank you, convener I wonder if I could ask Ms Reid about this issue that you've just identified given the advice that you wouldn't legislate and you wouldn't have a code of practice the Deputy First Minister, when he attended the Delegated Powers Committee was very keen that the code of practice was obligatory and very much compulsory for those who would be named persons in other words to make sure that their judgement was correct is it your advice from child law that the Deputy First Minister should give that a bit of a rethink I think it all comes back to what is the purpose of this legislation and at the moment it is not altering the current legal framework and I know that there seems to be some debate around this duty to consider but that's just a duty to consider whether to share but actually in terms of sharing it refers back to the current legal framework what is the point of creating legislation which then because of the Supreme Court then would require a code of practice to sit underneath it because that's what the Supreme Court said that they wanted but if you don't legislate then you don't need a code of practice so that takes away all of the debates that have been happening around what should be in the bill what should be in the code of practice what should be in statutory guidance actually what you do is you just say we've got the current legal framework we don't need another bit of law that says apply the current legal framework you just withdraw this bill and instead you give what practitioners needs which is clear, robust, accessible national guidance and a way forward that everybody can then can then follow so how what would be your advice to quite considerable number of practitioners many of whom are very supportive of GERFEC and the name person policy who have come to this committee and have said very clearly to us that they want that code of practice to be crystal clear and the reason why they want it to be crystal clear is so that they understand their responsibilities if your argument is that we don't need that code of practice safeguard and I think it's an important word what safeguard can we put in place to ensure that they have the confidence and the understanding and the ability to decide when to share information what would be your advice to them because a lot of them I think are feeling very exposed on this issue I mean I can understand that everyone is wanting a clear way forward through this the difficulty is that once you legislate and you put in a code of practice into this legislative framework it becomes difficult for you because we've heard Janice Scott QC talking about how difficult it would be to draft that code of practice I think she said it would be extraordinarily difficult to draft to make it human rights compliant and the problem is that what we're doing is we're actually just making this legal framework more complex rather than by adding on a layer to what we've already got trying to introduce different concepts of wellbeing and actually it is complex law but trying to restate it doesn't make it simpler it just makes it more convoluted Would you therefore accept the view that I think Maggie Millan spoke about earlier that in order to do our best for the most vulnerable children which is let's be honest the most important thing behind all of this that it would be better if we had the duty on institutions local authorities to make the provision but not in the enforced way that the named person policy has evolved into I'm not so sure about the whole named person policy but I suppose I've just been concentrating much more on the information sharing and how this bill really affects information sharing I do I can see the attraction of trying to put it into a code of practice and codify it and try to make the law clear in that way but because we can't really do that because we've got to comply with data protection and human rights so it doesn't help I think what would help is and I suppose I'm worried also about imposing a duty to consider because I think that that people, professionals are working under those duties those legal and professional duties anyway and we'd carry that out So what difference would it make then? If they're already working under those conditions just now what difference does it make? The difference I think is that it makes it less human rights compliant because it The point that you made was you were concerned about the workers who are already working under those so in practical terms it wouldn't make any difference to the workers because they're already doing that work according to what you just said Yes I think that's right but the problem is once you introduce any kind of information sharing legislative scheme you've got to then overcome all of the issues around human rights and the complexity of the system because it then has to be compatible with human rights Which wouldn't be an issue for the individual worker it would be an issue for the organisation that they worked for That issue was I think Janice Scott QC talked about that I think section 1988 kind of covers that and it would be an unusual situation for an individual practitioner to be held liable unless it was very serious Very serious Sorry Liz, are you finished? I think Ms Pryor wanted to come in I just wanted to very briefly take you back to what this is all about what it was the act about and it was about providing support for families it was not about information sharing it was not the purpose was to ensure that vulnerable families and let's face it actually it's about poor families because mostly this is a poverty issue it was about ensuring that they had the support that they and their children needed I'm sorry am I saying something funny Excuse me, talk through the chair Well it was just a smile on Ms McGuire's pace there I wasn't quite sure People are entitled to make whatever facial expressions they wish in the committee I don't think it's particularly funny that we have a lot of children I don't think that Ms McGuire was in any way making any humorous type faces If I may, I grimaced at the expression poor families I didn't smile, nothing funny about it at all I'm very clear about what this is all about You mentioned what it was about in your first answer as well Ms Pryder You did mention what it was about in your first answer as well Can I also say that we have to also think about what is the impact of the act and the impact of the act is to oblige services to provide support to families at the end of the day that's the purpose but actually we're seeing services shrinking and again going back to your previous panel the services that are available to families are shrinking We're providing them with less support now than we were even when the act was introduced In terms of the end purpose I really struggle with this We're here to discuss the bill, not the budget for the country and the budget for local authorities and I accept that all these things are very different at this time Sorry, Liz, are you? I want to come back to the code of practice and it's very interesting here what you've said about consistency across the country because I think that's very important there will be some areas of the country that are already doing things well and children are falling through the gaps and that's what this is all about and the other areas of the country where there have been issues What do you as people who are representing agencies have to be working on a day-to-day basis around the name person What are you looking for in a code of practice? For us, on behalf of the coalition with which we provided evidence our primary concern was around clarity for practitioners and I think it's important to give a bit of background to that because since 2013 practitioners have had two sets of guidance from the information commissioners information commissioners office about information sharing in this context they were ready to go with the implementation of the 2014 act in August 16 and so I think everyone would understand why there is that lack of clarity at the moment and why sometimes people feel unsure around information sharing so our priority is to look at the best mechanisms to help to provide that clarity for practitioners and we have also been clear that what we would really like to see is and focus on as the statutory guidance on parts 4, 5 and 18 because we think that that would help to put information sharing into the wider context of the name person and to help people to understand why this is important and not feel that it's so much a technical issue Our understanding from the bill team is that the code of practice will be binding on everybody who falls under this scheme and therefore it needs to concern itself with the legalities of information sharing how you comply with the data protection act how you comply with the human rights act what other legal gateways might be what we would really like to see in the guidance is something that helps practitioners to interpret that into their own situations and that's the part that we think is absolutely crucial I do have some concerns about practitioners potentially having to consult two different documents both the code of practice and the guidance that's not insurmountable but that needs to be taken into consideration but other witnesses have talked about things like flowcharts and practice examples and things which will help practitioners to understand how that might look in their own context I think it's important to say that what it will not be possible to do is provide black and white examples that say in this situation you must do this practitioners will always have to be able to bring in their professional judgement families and children will always find themselves in different situations but what the guidance needs to do is to provide a framework that helps practitioners to think that through on an individual basis but then what's really important is that that guidance doesn't stand alone so that needs to be supported by training very much in agreement with the points made by Celsa Surround the need for supervision arrangements within organisations or other ways for practitioners to have conversations with others who can help them to think that through it does feel complex so I think there's a whole range of stuff that needs to be in a whole range of a suite of materials that people can consult with but what we're hoping that that will do at the end of the day is to provide that clarity that practitioners at the moment are really lacking I think there might be other people that want to ask say what they would like in the course of practice it's a very brief point because I've already said that I don't think we need a code of practice but I totally agree with that Kirsten has been saying in terms of what clarity is required I just think it could be in the guidance rather than and the code of practice of course wouldn't preclude individual organisations from having their own materials there that is relevant I'm very struck by the points that Professor Alex is making around your particular situation being slightly different in many cases and you would take a code of practice as a top level and then adapt that for your practitioners so that it's relevant I take it I do think it's the type of thing that can be incorporated into guidance and it's as much, I think some of the discussion has been about what we shouldn't share but part of this is also about what we should share and making sure that people recognise that it is an issue that is addressed in our written submission that at the moment contradicts some of the other legislation that exists like the Criminal Justice Act 2016 where we specifically said this information must be shared because it's something that's not recognised as having an impact on child it's not addressed as having an impact on child wellbeing at the moment so it's making sure that any guidance can take those sorts of issues into account and again, as I would agree completely with what Kirsten just said in relation to being backed up by training and information for practitioners and when we had our panel last week we had the police represented in there other people represented they talked very much about working in partnership with other sectors so that you have an understanding of the other sectors and how you can actually be working together with them I'm wondering what you feel on that kind of that's essential and again that's one reason that we again as an organisation support the role of a named person having someone who has an overview of number of the issues to supporting children and families in those cases Thank you, Oliver I had a couple of questions for Alison Reid I understand you've said that you don't think a code of practice is necessary but I was interested in the written submission you said that the illustrative code cannot be regarded as sufficient to overcome the clear concerns of the Supreme Court do you think that given the essential importance of the illustrative code it's essential that Parliament sees what the content of the final code is before this legislation is passed If you are going to proceed with the bill then absolutely the code of practice is key to how the bill is going forward I totally agree that that would be important because it's part of the legislative scheme that is going to be tested or questioned in terms of its human rights compatibility so yeah, it's important that that scene and scrutinised I think has been discussed previously Given the history of this legislation the fact that it's been to the Supreme Court the considerable public media interest the interest that practitioners have clearly shown in it do you think, do you share certainly my concerns that passing this legislation without seeing the final code of practice would expose the Scottish Parliament itself to considerable further reputational risks Yes, yes I do I think we've not talked that much about the decision in the Supreme Court and I suppose one of the key things that they were wanting people to be able to do was to regulate their own conduct so that they were able to kind of decide what was going to happen to the information they had and that's one of the key things that needs to happen in order to make it articulate compliant and unless you actually see the code and you actually see how that framework it's very hard to make that to make that call and the other key point from the Supreme Court was around accessibility and how clear and how easy it is to understand and that's a very, very difficult one to codify the complex law as it is but never mind then adding on different layers to it so yes I think it's important that scrutiny of the code of practice would take place if that's the route that you go down Thank you and I had one final question that was related to all of the panellists in the previous evidence session we heard the suggestion from one of the witnesses that they felt there was if the bill was passed as it currently is there was a reasonable likelihood that some of the issues would be tested again in court do you think that this legislation being subject to continual legal test whether it's in relation to the whole act or how it's implemented by individual practitioners do you think that in the long run that's going to help or hinder the culture of information sharing that you've talked positively about? Clearly it's not going to be helpful practitioners need to know what is going on here and it's just confusing all the dialogue so I think the sooner that we can get this sort of it's got to be better it's got to be better for people who are trying to work the system Okay Okay so thank you very much Ruth Thank you convener we've spoken quite a bit about wellbeing and heard differing opinions on whether there needs to be a tight definition of it I suppose I would ask the panel for their reflections and it's probably particularly for practitioners about the value of there being a sort of subjective approach to it and I guess that situations are different for different families and we can't necessarily have a checklist of if this is happening that child needs further assistance so just I realise we've covered it a bit already so I think we need to add Our practitioners as Barnadol's and on behalf of the other charities with which we've provided written evidence have been using the scenario indicators for some years and staff feel very comfortable using them in the context of making decisions about their own professional practice so they feel comfortable that the wellbeing indicators allow them to consider the needs of a particular individual child or family and to think about how best they can support that family however where practitioners feel less confident is in the laws understanding of those indicators and that's where we hear concerns about are there sometimes great areas around where you would share information those are not at all great areas about are there areas where we could support those families but there are great areas around whether the sharing of information helps to support those families we didn't come down on one side or the other we simply present to the committee that that is definitely a catch 22 that practitioners are telling us both things both that they value the flexibility of those indicators and being able to use their professional judgment to think about individual circumstances but also that there are times where they feel that that leaves them a little bit exposed and what do you think would help and improve that I was struck by what Sally Ann said in the previous session about finding ways to help them to understand that and to interpret that I think that would help a lot with practitioner confidence it might not answer the question of whether that would stand up to legal scrutiny which I think remains a question Can I just add to that quickly I agree completely I think there will always be areas where discretion is inevitable I suppose but it's making sure that that discretion is defensible what you don't want is people being afraid of their information for fear of litigation and again I think in most cases where people are already supporting families then you can have those conversations and discuss whether information sharing is appropriate and get their consent to do so it's where I suppose it's where families might object to sharing that information where you might need to raise the threshold about what you can share without consent and that's where we head into the child protection concerns certainly for the definition and discussion hold on hold on hold on no that's fine but on that very point you accept that this legislation does not change that threshold that threshold is set down by the DPA so as much as we might want to change that threshold this legislation cannot do that that's my understanding at the moment yep okay thank you Liz I wonder if I can come back to this and I do think it is a dilemma and you've just enunciated it for us if the practitioners are to do their very best for our most vulnerable children they want to know categorically when they can share that necessary information and if it is below the threshold that is on an intervention level for child protection they want an assurance that when they do make the decision to share that they have done the right thing is it possible to give them that confidence and legal authority if we do not have a greater definition of wellbeing and the the purpose of that wellbeing argument within the legislation is it possible because that's what they're asking for to this committee who's in favour or not in favour of the policy has asked for that clarity and that feeling of security and doing the right thing by the law and it's all very well to say that certain aspects of the law don't change this but they feel that it does because they don't know where they stand we've had that message time and time again so do we need to have more about what they can and can't do the difficulty is that they can't share at that level because any sharing has to be within the human rights and the data protection and I don't think putting it into a code compared to putting it into guidance helps that clarity I think it's all about giving the professionals the confidence to make the decisions, to use their experience and to set out some clear guidance with examples in order for them to do that I don't know that one thing that we've been training on in the past is underage sexual activity and that was a very difficult subject for people to decide how they ought to be dealing with that and a really good guidance including from different practitioners who are taking video clips of how they would address different case studies and trying to give people that confidence for them to use their professional judgment the difficulty is of putting it into law is that then you've got all these other problems that we've discussed before around making the whole framework rights compliant whereas actually if you don't do that then you don't have to face that same level My final question I absolutely accept that I think that this committee is trying to do the best by practitioners and to ensure that they are given the necessary support so that they can then support the necessary families but at the moment that the strong message that is coming to us is certain and that they don't know where they stand and what we're searching for desperately is finding a way of giving them that certainty and that's where I think the nub of this whole issue lies and as Tavish Scott rightly said earlier it does matter from a legislative point of view because this Parliament must be informed about what is the right way forward to ensure that we are doing the best for those families and at the moment I'm not very convinced that we're in a position to be able to do that because we have got an illustrative code that has been criticised by many people who've been before us and I'm just interested in how we get round this One is around clarity and the other is around confidence and it's actually quite important to consider them to do different things because I think that practitioners confidence in their ability to know what to do around information sharing has taken a knock by the context that I described earlier around the different pieces of information that have been given to them and so some of this will never be solved by writing something down some of this is about the training and the professional development and the support and supervision that practitioners need to rebuild that confidence and the interest of getting support for the families and that actually consent is part of the conversations that they have with people anyway and that this isn't in many cases a huge change in practice but I think there is a case for a much greater degree of clarity and so our problem with the illustrative draft code of practice was where it says things like there may be other legal gateways by which you could provide information without consent I am not an information professional but my understanding is that in large if you don't have consent those other legal gateways are incredibly limited to the point of almost it being possible to say if you don't have consent and it doesn't meet a child protection concern don't share and I think practitioners would value that sort of directness in message so I think it should be possible but it has to be taken against the backdrop that it can't simply be something written down it has to come with a lot of other support for practitioners OK Nobdell Shright, thank you Colin We're doing a lot about wellbeing and consent here I'm wondering about UK and European data protection law the GDPR coming in and the impact that's going to have because we've got some anecdotal evidence from previous panels that already there's a degree of defensive working in anticipation of that legislation coming through how is that going to impact on this bill on the bill and on the working practices My concern is that for practitioners this is another set of acronyms and another thing that's unknown and so it's about how we make sure that we time this information correctly so that when information does go to practitioners about what their requirements are it's cognisant of that GDPR and it's not that six months down the line GDPR comes in and things change for practitioners again again I'm not an information practitioner but I do understand that GDPR will in some circumstances for organisations such as ours turn consent on its head and so actually there could be some quite fundamental questions about what it means to share information so I think it's really important that we make sure that when information is given out to practitioners it's cognisant of that We've looked at the GDPR from the perspective of parents and children in schools because that's the area that we work in and certainly we are clear that informed consent will be required for the holding and sharing of data and as we've talked about earlier that doesn't just mean a tick on a box on a form that means that we fully parents and young people fully understand the context in which that information may be used and so yes it will make this whole scenario a good deal more complicated and I don't think there's any doubt about it Professor I think it does actually reiterate my concerns that I expressed at the beginning about consent though we've moved on from the consent discussion but they are very related when you look at things like even international conventions such as the UN Convention on the Rights of the Child which states specifically in article 2 that children should not be discriminated against on the basis of the legal status of their parents so that's information about the parent but pertaining to a child so whose data is it whose information is it and who has to give consent for that and I'm still not clear Based on what we've seen about this question about the GDPR and the question of consent and the emphasis it has on the disparity between the person giving the consent and perhaps the local government authority or the organisation who's receiving that consent how is that going to work because it seems an incredibly difficult hurdle to satisfy Well there doesn't seem to be a simple answer coming from the panel but Mr Reid I think that's a really good question I don't know and I know that the information commissioner's office raised that as an issue and if they're not able to answer it I'm not sure I am but there certainly is this issue around the balance of power and I'm not able to help to clarify Great, thank you Colin Joanne, do you want to... Just a couple of very brief points on some of the previous panels I've talked about the financial memorandum and the extent to which they can deliver on the expectations of the legislation and from the practitioners when you talked from Bernard's perspective about the importance of training and on-going training and training for new staff and so on have you been able to quantify what that would mean for your organisation? We haven't been able to do that at this stage because that won't depend to a large extent on what information is forthcoming from government so if they provide us with a fantastic training package for local people then we can start to cascade that through the organisation and if that's not available and we have to start from scratch then that would be different so we're not in a position to quantify that until we know what that looks like what I think is important to note is that from memory third sector are not included in the financial memorandum and it only relates to those who serve the purpose of the named person but there will be significant numbers and who will therefore require that training and support and so at the moment I don't think they're considered in the financial memorandum. If it's going to be done properly and it is complex you would expect to be of some significant cost. Absolutely, there will be cost attached. Yes. I suppose the other question you would ask I think we've largely probably heard Alison Weed's view on this but if we're in a position where the legislation is there it looks as if there are unintended consequences and it would be interesting in your comments that there may be defensive practice. I'm interested in the panel's view if we try to make this legislation fix what the problem is or is there a view that actually there's a danger we're going to end up in a place where we're making life more difficult for practitioners without necessarily any more confidence that we're actually supporting young people and their parents. I suppose what we're wrestling with is does this make it better or worse? Does this sort the unintended consequences or would it be better if in terms of the principles of the original idea not to have this? Because you can make things work but is it making is it a very difficult thing to do or would it be better to go back to the position where you relied on practitioners judgment? Ms Pratt. From our perspective this doesn't add anything and I've alluded to the reality of the resource that we're not able to give to families. In fact our perspective has always been that the named person actually in terms of that issue of cross local authority, cross service cross health board connection and ensuring that there is proper care and support for families who are perhaps moving about or where the children are moving about actually that is the role of the lead professional because although the lead professional is not within the legislation it is within the guidance so if a child is or a family asks for support and acquires multi agency support then a lead professional would be appointed and actually that lead professional is the key role in terms of supporting the family where there are multiple agencies and perhaps different local authorities and different health boards so from our perspective we would say that's where the fix is because that's the role which will really provide comprehensive support for families but not the named person I don't want to repeat but obviously from where I'm coming from it does make it more complex it doesn't add anything and we would be better to put our energy and all our expertise into trying to to get good guidance that will help practitioners through this the best we can okay sorry Ms Walton just to say that people have mentioned defensive practice a few times it's less that that comes from this bill and it's more that it comes from the context of the last four years of uncertainty and so our anecdotal experiences that people are sharing less information and that where we need to get to is a position where people feel able to do that so whether that comes through the bill or some other means the important thing is that we get to a point of clarity for practitioners because that's where the defensive practice is coming from I think less than from concerns about this bill in particular of uncertainty Do you think that practitioners would be more comfortable with professional expectation and standards rather than their actions being tested in a duty in legislation I think both come into play okay thank you okay in that case can I thank you very much for your attendance today and for your answers to the questions and I now close the public session thank you for being here