 Giforon, wrth gyruaeth, wrth gyrfa iddyntio i ddweud yr edrych gan y Scydd y Cymru yn 2017. Felly, rydw i'n ffordd am y cyform i'ch gyrfa i'r mordio mewn ffordd a'l eistedd ar y gyrfa'u newid, haeth beth yn i ddwygaron gyda'r ddweud. Mae'r terfyniadau sy'n tourist, ond ar ei dddangos ei ddweud i ddweud, argynnu'r ddugodd, am y dyfyrdd mewn aff McLhau. Overfynid o'r fireddol Ffyrdd yn ei ddweud, ac pe allan i mi ddwygaron gyrfa'u ddweud, oherwydd fel ei hwn yn cael ei gwaith, ISO 100. I welcome to the meeting, Kenny Meakin, who was a member of the privacy law sub-committee at the Law Society of Scotland and Janis Scott, QC from the Faculty of Advocates. I would like to start off this morning by asking Liz Smith to answer the question. Thank you, convener. I wonder if I could ask the representative from the Faculty of Advocates, Janis Scott, the first question. A mi dweud o'ch nhw'r ffordd, yn geistreigu'r cwrtau sy'n ddylchio'r disappeartyn ffosteist? Mae'r ffordd i deg� enweddol o'u rhaid. First, it was that there was a serious lack of clarity for the implementers on the legislation, and the second was the lack of safeguards for those affected. You say that neither of those issues is easy to resolve, and that some criticisms from the Supreme Court will continue to apply if the bill as drafted is passed and the accompanying Court of Practices has approved. Could you be very specific about what you think these criticisms from the Supreme Court are and why they won't be addressed? If I can start by looking at what the criticism actually was, because you've solved one problem to raise another in this particular case. What the Supreme Court said was that when you required in the last legislation the sharing of data but at the same time required cyd-deinidw, ond chi oeddwn yn cymryd o'r cynnigol atwet ar gyfer hyn sydd y dyn nhw. Mae', yn gateu ar gyfer hynny, os yw'n gnoeddio'r cynnigol ar ôl gyffredigol ar gyfer hynny ond roeddon cyfeinio'r llyfr應該t yn ei pwyddoedd fel ei ddweud, ond ond, ac mae'r cynnigol yn cerddo cymryd o'r yr hun ddau, ond mae'r cynnigol yn cyfryd o'r cynnigol, marriage-up, a'r cynnigol yn cael ei ddweud ei ddweud yn cael ei ddweud yn cyfryd o'r cynnigol. Ond yn asylum Their were created. So, you're proposing to shift the argument, so there is no longer a requirement To some information, there is the power to the destruction. You've removed the difficulty of circularity. In doing so you look at what the Supreme courts said. Requirement to share, gave you protection, under section 35, of the data protection act and because you are no longer required to share, you remove that protection. So you shifted the responsibility for safeguarding people's data effectively onto the data processor, the information holder. So you are requiring health visitors, you are requiring teachers, requiring lay people to implement very complex law on data protection and it is very fast moving law. If you look at the responses that you have got to your consultation exercise, you will see that they are puzzled, they do not know what to do. They are saying, would you please define terms for us and it is going to be difficult for them. I can go on to what the problem is with defining terms if you would like me to do so. I will just come to that in a minute if I may. Just to be very clear, are you saying that the responsibility for taking the decision has effectively been shifted onto the named person, onto the practitioner, instead of resting in law or with Parliament having scrutinised that law? Is that what you consider to be the problem? That is part of the problem, yes. It is not just the named person, it is the service provider in other respects who has to consider whether to pass on data to the named person. You are asking lay people who are involved in the care of children in other respects to exercise some very complex functions. The issue that is raised by the Supreme Court is that it is clear enough to allow them to know what they are doing and clear enough to allow families to foresee what is going to happen when they share data with their dentist, their doctor, their health visitor, their teacher. Do they know what is going to happen? Can they regulate their behaviour if they feel they need to regulate their behaviour accordingly? That is very helpful. Can I come to the substantive issue, which I believe has been quite a problem since the Children and Young People's Act was passed? Obviously, it is a considerable issue at the present time. That is the definition or lack of definition of the term wellbeing. That has been raised in quite a number of submissions. I am interested in the Law Society's perspective on that as well. We were given the information from the bill team two weeks ago who were saying that the term wellbeing has been well utilised and understood by practitioners, by families and by children. Do you share that view? No. The Supreme Court said that this is a very vague consideration. It is not wellbeing in the general sense when you use it in a piece of legislation where there is a statutory definition. You have your statutory definition later in the legislation and it is based on your concepts. It is a very low threshold for legal intervention, if you like. I would not say that it can be easily understood, but that is my impression as a lawyer if practitioners have a different view, so be it. From a data protection perspective, it is a much lower threshold than is appropriate for the processing of people's data. Can he have a better place to speak to that as he is involved in local authority work on that? Can I just ask—on this wellbeing concept, it is absolutely crucial and very clear in the judgment in paragraph 16 of the judgment that wellbeing is not defined. It makes the point that the scenario indices that have been used are far too vague. They can be misinterpreted or they can be interpreted in different ways. That is a fundamental issue about a practitioner having to decide when—in this case—when to make the decision about whether they should share the information. Is it correct, in your mind, that the fundamental problem of a lack of definition of wellbeing remains a central problem in this new section of the bill? Indeed, but what you have to bear in mind is that the test for sharing data is higher than that, so your practitioners are looking at wellbeing on the one hand and saying, am I required to consider whether to pass—in my opinion—I need to pass on data and on the other, can I? The test for can I is higher than the test of, shall I be considering it? You are asking them to do quite a difficult juggling act, and that is part of the problem with the accessibility of the legislation to ordinary practitioners and families. Would it be alright, convener, to have the Law Society's perspective? Matter was considered by the Law Society's family law committee as well. The elected sent me here, conscious that Janice was well able to speak to family law aspect. They did have concerns about the oversharing of information under the previous non-statutory regime. Gyrffric was working and applied reasonably coherently, but we are not the level of understanding sufficient to make something work on the ground. It is giving you sufficient clarity to allow you to frame legislation around it as a slightly different question. The wellbeing threshold is much lower than what we would have done in terms of child protection measures. The child protection threshold is well understood. If you have a concern about the child protection issues, nobody is ever going to turn around and say, do not share the information. That is a message that we have been trying to push through, called to cut to, for example, which talks about the duty to share information in certain contexts. Because the wellbeing threshold is lower, it gives you a conventionally higher hurdle to pass if you are going to make sure that the sharing is proportionate. My final point on that would be that, as I understand it, the Scottish Government's illustrative code is designed to deal with the issue of safeguarding and to help the practitioner to understand what that safeguarding rule is. However, if the term wellbeing is not adequately defined, am I right in saying that that remains a central problem for taking legislation and, indeed, the code any further? I would say so. You need to be clear as to the purpose for which you are sharing the information. If the underlying purpose of wellbeing is not clear, then how can you say why you are sharing the information? Right away, you fundamentally fulfil the clarity requirements under article 8 of the European Convention on Human Rights. I am just about to let Claire Rocky in, but the definition of wellbeing is wellbeing not already well used in Scottish terms? It is well used by practitioners in the field, but that is probably a muddling of through approach. The sharing information should, on some occasions, be based on the concerns about wellbeing? The GERFAC approach has been proceeding on a non-statutory basis reasonably successfully, but there will be some information sharing in that, but it has been of a lower level. What has been proposed just now is already in place? It is codifying an existing practice, or what was an existing practice. I think that practice has tailed off somewhat in the wake of the Supreme Court decision. This morning, I would like to refer members to my register of interests because I am going to ask specifically some questions around healthcare. In your submission on the complexity of the legal framework, both the Faculty of Advocates and the Law Society refer to the difficulty that busy professionals will have in making decisions about information sharing. However, the RCN, in its submission, and I am quoting from its submission, healthcare professionals such as health visitors, are already well practised and familiar with information sharing and how to do this in line with data protection law, European law and in a manner that is compatible with the European Convention on Human Rights. Would you care to comment on their submission? Would you contradict that? I do not disagree that medical professionals are well versed in safeguarding. Healthcare professionals are not medical professionals. Healthcare professionals are more generally, sorry. Healthcare professionals, yes, it is well understood that they have obligations of confidentiality in relation to the information regarding the patients that they are seeing. We are rolling this out to a group who are much less familiar with the concept of multi-agency working that this would involve. Primary head teachers, other than being occasionally involved in child protection conference, will not have a native background in dealing with a complex multi-agency referral of the type that this would envisage. Secondary head teachers and getting teachers. Will you respect, I am actually asking you, about healthcare professionals? The healthcare professionals, I am reasonably satisfied, have a working understanding of safeguarding information. Where you are asking them to do something different as well is to almost turn that on its head and say notwithstanding your understanding of patient confidentiality, we are now saying that you need to share this information more widely than you have previously. You say that currently they are, and I found it a rather condescending comment, I have to see muddling through. It was not intended to be condescending, it was intended to say that they are operating a non-codifying set of rules. The other thing, of course, is that health professionals are, by definition, dealing with sensitive personal information, which has a much more restricted approach in terms of sharing. This legislation deals with information that is not falling within what was in the Data Protection Act, sensitive personal data. We are looking at broadening this. One of the issues is have we adequately categorised information between the general data for sharing and the more sensitive data for sharing. It may be that the nurses, if they say that they are comfortable with this, I have not seen any cases about challenging nurses sharing or whether they are sharing appropriately or not, so I cannot comment on that. One of the concerns is the broadening of the scope of sharing that is implicit in what you are proposing to put in place, if indeed this legislation is necessary at all. What would you be saying that the level of legal expertise and framework would need to be satisfied yourself? How long to be a string? It is difficult. One of the issues is that what we have at the moment clearly has not done it. I think that the committee would be bound to acknowledge that the existing attempt at preparing a code is not adequate to give helpful advice to those who need to deal with this. It would be okay for a lawyer who could then look at the matter. The problem with the bill is that it can only operate in conjunction with the code. If the code is satisfactory, then that assists in dealing with some of the issues in relation to the bill. But the code is in draft at the moment? The code is in draft at the moment, yes. So it is not the final piece of work? No, but it is a question really of whether the committee is prepared to sanction a piece of legislation which is dependent upon a code which is not satisfactory drafted and which is going to be extremely difficult to draft. The cabinet secretary is here on 8 November and we have other sessions between now and then, so I am kind of hoping that by that time we will have a much clearer picture about what it will be. Well, yes, but the trouble with respect is that this is a very rapidly moving area. You are hitting a moving target. I am trying not to hurt him at all, but one of the things that seems to be here is, it is not just health professionals, there is a wider range in that. Is it not then more about a training issue? A lot of the things that you seem to say, Mr Meehan, is that there is a wide scope of things that they have to know now that they did not know before, but is that not just about making them aware of the parameters that they are working in? I spend a significant amount of my working life actually training people in data protection issues and it is not an easy subject for people to embrace. A lot of what we have done has been around getting the message across of keeping people's data safe and secure, so barring human error was usually not too bad at that. What we are now saying is that you now have to engage in a much more deeper understanding of data protection human rights legislation in order to actually satisfy yourself that all those tests have been met. The tests and the code of practice are, in some regards, misleading at best. The code of practice suggests that asking for consent, if you do not get consent, think if you can share it anyway. That runs very much counter to the ICO's code of practice on data sharing, which makes it quite clear if you are going to share without consent, do not ask for consent because that is misleading people. Concepts like that that you are going to have to train people up in terms of, and I think the code of practice does not really address that. The code of practice reads as a primer on information law, and I have actually commended it to a couple of colleagues who were interested in finding out more about it, but it is not really going to tell a professional from a different discipline what they need to know. It does not really tie it back in any meaningful way to the exercise of what a named person is supposed to do. So you are suggesting that the problem here then lies around how the code of practice is written and that it should be made clearer? The code of practice has to be made clearer. There are some problems in relation to the legislation itself. In large measure, the legislation, when you actually strip it back, what the bill is doing is providing a statutory vehicle for the code of practice. The powers to share information arguably already exist. We have been sharing information because it is reasonably necessary for us to carry out our other functions in terms of being the education authority or being the health authority, and it is reasonably necessary for us to share information in order to carry out those functions. That is a reasonably well-established legal test. So adding in the specific powers in this bill in some respects does not add anything to what we already have. What the bill does is create the statutory code of practice. That ultimately is the real meat of this bill. Just one thing that I want to pick up on. It is a draft code of practice. Is that not correct? It is a draft code of practice. I have spoken to the bill team about it, who did indicate that. I would prefer that we refer to it as a draft code of practice, because I think that the impression that is given anybody watching this is that the code of practice is set in stone, and obviously it is a draft at the moment. I want to pick up on something that you said earlier in response to Claire Hawke, where you said that head teachers and guidance teachers are not used to data sharing practices and child protection issues. That is not really the case though, they are less used to it. They are involved at the moment in child protection processes, but that is a much higher hurdle. It is easier to understand exactly why you are sharing the information, because you have an issue that says that this child is or may be at risk of harm. Everyone can understand that. That is something that people can understand, and we are sharing the information in order to protect that child. Many teachers are involved in children's hearings issues with child protection every single day of their working life. I am concerned that that kind of language has been used. Any guidance teachers or head teachers watching that will not be very pleased that you are saying that they are less used to data sharing than other sectors, and that is not the case. I do work regularly with those people, and I am in no way shape or form under stating how skilled and experienced they are in that area. That is asking them to get involved in a new area with softer data and with a less obvious reason as to why they are being asked to do it. My understanding is that the Supreme Court ruling suggested that there should be statutory guidance subject to secondary legislation. My understanding is that the illustrative code is short of that. Do you think that that is a flaw in the current approach? The Law Society's submission deliberately did not go into a lot of detail on the draft code of practice for the simple reason that it is a draft code of practice. The faculty have expressed some misgivings that we would share. I have seen the ICO's written evidence that I think you will be discussing in a future session, which goes into some detail as to why they do not believe that the current draft code of practice is adequate. I would broadly say that we agree with those submissions, but I also understand from the cabinet secretary's previous attendance here that the intention is to redo the draft code of practice to reflect GDPR requirements. Since we now actually have the UK data protection bill as of the end of last week, perhaps we can take that into account as much as we can given that it is only starting its parliamentary journey. I think that the problem is that the meat of what you are proposing to do will be in the final code of practice. That is something that will not be before Parliament. That is a big issue, is it not? Would you want to approve something for those professionals to implement that you have not seen and which can be changed? Just to clarify, you are saying that it would be better if this guidance was put on a statutory footing? It would be better if it was on a footing that allowed MSPs parliamentary scrutiny of it. Thank you very much. I suppose that a couple of just lay people, lay person questions although I was involved in this area of work myself while I was still a teacher. The first thing is that you talk about the challenges. Manson is a two-step challenge for somebody. They have to decide whether the information that they are going to share falls within this legal area and then they have to show that they have a duty to consider. What evidence would they need to be able to provide in order to fulfil that duty to show that they had considered and then decided not to share or to share? What would be their responsibility in terms of first of all deciding whether to have to think about this at all and then once to do what evidence to have to show that I have thought about it? That is a practice issue. At its most extreme, you could end up doing a full-blown privacy impact assessment or data protection impact assessment, but that would be far too cumbersome to do on any kind of day-to-day basis. I would imagine that you would end up in practical terms coming down to some form of pro-forma that says that we have considered those factors, which are in favour of sharing. We have considered those factors, which would suggest that maybe we should not. We have taken into account the views of the young person, the parent, if that is applicable in circumstances. On balance of all of those factors, we have decided to share the information. If they decide not to share the information further down the line, something happens, would that decision then be scrutinised legally? Is it just that you have done it, is it okay, or is the quality of the decision-making coming to play at all? Quality of decision-making can always be challenged ultimately by way of judicial review. I have been proposing that we would ask all the named persons out there to draft a judicial review bomb-proof decision notice of every decision that they make. That is just not going to be workable. If the decision is wrong, it can be challenged and scrutinised down the line. I would not disagree with that, and I think that that is absolutely correct. It should be that I would not want to create a vast cottage industry of documentation surrounding that. Again, I am not sure of my ignorance here. What happens when there is a conflict of interest in sharing of the information? I might take the view that it is the interest of the child for me to share this information, but certainly not in the interest of the parent to have that information shared. How is that resolved? The legislation is to support the wellbeing of the child, the interests of the child would have to take power amounts of here, unless there was such a mismatch in the relevant interests. If there was a very small benefit to the child versus a huge disbenefit to the parent, that would be taken into account as part of your proportionality arguments in the balancing exercise that you would do under article 8. On the last point, in the last session, we were told that the code of practice was illustrative, not draft, but illustrative. Is there a distinction between those two things? That is a political term. I think that one of the things that might be helpful is to think that whether you are passing a piece of legislation that is going to be compliant with all the requirements that you need, and then secondly whether it is going to be implemented in a lawful manner. One of the problems in the meeting of those is that the Supreme Court was concerned that because it was unclear, it could not be easily implemented in a manner that was lawfully compliant. What we are drilling down to in your questions is how easy, how appropriate is going to be the implementation of this legislation, and you are expressing concerns in your questions as to how it is going to be done, and what are the practical parts. That is the part where the professionals need the guidance. At the moment, we are looking at a higher level at whether it is going to be a framework that is going to meet the requirements of the law, because that was the concern of the Supreme Court. It is also whether the practice inhibits the policy intention, which is to safeguard children. I do not mean that the practical parts of the legislation, and one of our judgments, I think, will be to test that against the intention of the original legislation. I apologise for being late. In the faculty of advocates submission to this committee, it states that it is in position, which I presume to mean the draft code, risks making there, that is professional people's job, considerably more difficult and undermining the trust of families and the willingness to share information with the professionals concerned. Can you just expand on your argument there, please? Families do not know what professional people, what teachers and health visitors and midwives and so on are going to do with the information that is shared with them. Will they be willing to come? It is outlined in the Supreme Court's decision. Am I willing to share with my health visitor that I have postnatal depression? Where will that information go? Can I be certain that that information will not be shared with my child's teacher? Or when will it be shared with my child's teacher? Would it be passed on to my child's teacher without my consent? In those circumstances, will I be actually willing to tell my health visitor I have postnatal depression? If I don't, where will my depression take me? That is just a small example of the sort of issues that may arise unless we have clarity for families and they are kept involved in the process. The difficulty at the moment is that the draft code does not really help very much. It is a legal document. It outlines the law, but it does not give you a clear pointer as to where those sort of issues are going to be taken. Can you use that sort of thing that you were thinking of? Yes, broadly speaking, yes. The illustrative code of practice, I do not think, provides any meaningful guidance in its current form. I do understand that it will be getting rewritten, so I was not proposing to speak about it at a great length. I think that more fundamentally in terms of the shape of the legislation, it is trying to reconcile to almost irreconcilable points. One is that you have the Supreme Court saying that this is all about sharing information without consent. You build a consent model into this legislation, but then you look at the GDPR, which is on the horizon, and the draft guidance that has been issued in terms of consent under GDPR. It makes the point that, because consent under GDPR has to be freely given and informed, then it is not going to work terribly well if you have a situation where there is a massive imbalance in power between the agency and questions that it is asking for consent and the person being asked. Specifically, it says that if you are a public authority, consent is possibly not going to be the most appropriate way forward because of that very power imbalance. That is a really, really difficult square-to-circle. We need to have a consent-based model, but we will have difficulty making a consent-based model fit within the requirements of GDPR. I am not saying that it is impossible, but I am saying that it is a very difficult balancing act that this Parliament faces to try and get to that. You mean that as to how that will affect professionals conducting their duties? Yes, indeed. Because of the point that you made earlier on about the contradiction between one as a culture of clarity about someone's privacy as opposed to the opposite taking place here? Yes. I may be misconstruing that, but that is what I took from your earlier remarks. No, it is asking people to change their mindsets somewhat, but we are asking them to do it at a time where, as we say, this is not a good time to be trying to legislate in this particular field because we are on very much a moving target in terms of what the UK data protection legislation is going to look like. We have the GDPR, but an awful lot of GDPR requires member states of the EU to actually make its own delegations and exemptions, and we have only just the visibility of what the UK Government is thinking on that as of Friday last week. So it is very hard to actually see how we can get this to tie in to that new legislative framework. I totally get that point. Does that explain why the illustrative draft code is so weak as you have made it? Many of the submissions that the committee received have been not kind on the draft code of practice because of the point that you made as a legal document, but how it is practitioner meant to understand that. Is that partly explained by your point about the time of these changes? Yes. The timing of it has not helped. That is certainly true. I believe that the bill team deliberately couched it in terms of the current law so that it would give this committee a flavour for what they were thinking of rather than what it was going to look like in its final form because they are well aware that the Data Protection Act 1998 would not be the law enforcement by the time this legislation is implemented. Both of you have suggested today that it is very difficult for the Parliament to pass a bill that gives some effect to a code when the code is so deficient as it is currently drafted. The other problem is that it is going to be difficult to draft. It just takes three points. We have discussed wellbeing and the vagueness of wellbeing and the centrality of that to whatever you are doing under this code and the legislation. Secondly, you have got words that you can pick out from some of the submissions, things like sensitivity, which is not the same thing as sensitive purpose or data that relates to categorised form of data. Are we misusing words? Thirdly, there are some undefined concepts, such as vital interests that some submissions have built up. We are just not going to be able to help them on that. They will have to form a judgment on it and will have to help them to give a judgment, but it is requiring a very difficult judgment to be made. I accept that the Royal College of Nursing is content with its position, but various other organisations are not content with their position on that. I am confused and worried by it. Is the danger of, presumably, passing a bill with all the deficiencies of the code and so on and so forth is that, given that we have organisations who are absolutely against this from first principles, there will be a legal challenge again, won't there? This is setting up a near-certain legal challenge again, isn't it? Either to the bill or the structure of the legislation, if not to the structure of the legislation to individual instances of data processing. Yes, it will be. So Parliament achieves nothing. We pass a bill that then gets legally challenged, and the people who are meant to be helping children and young people are bypassed by a process that goes back into court and we spent another two years to pass this. Or challenged and find themselves at the sharp end of a litigation when they are actually wanting to help children and trying to do their best to implement a piece of legislation that has passed. That is very helpful. Thank you very much indeed. Yes, it is very helpful. I suspect that the Government already knows that any bill that comes through is likely to be a legal challenge, so let's hope that they have got it tightened by the time we get to that stage. Oliver, Daniel and Colin. Thank you, convener. I want to ask some questions about the code of practice. You say in the faculty of advocates submission that it is not a substitute for legislation. You have obviously made reference to the fact that it would not be debated or passed by Parliament. Are you therefore wondered if you believe that the proposed bill gets a balance wrong and whether more of the guiding principles and possibly the need for a legal test for consent should be on the face of the bill? The difficulty is whether you can legislate for something that is already in other legislation and we know that existing legislation won't be in place very soon. In fact, 25 May it will go out because the regulation will be directly enforceable. Anything you do has to be compatible with that. Our proposal was that the Supreme Court had made such an issue of informing people that their data was being shared that we wanted to add that to the essential considerations that were required of the person holding the service provider. If you are going to ask the service provider to consider whether they should share the information in terms of the wellbeing test and then giving them the power to do so, one should add to that the consideration specified by the Supreme Court of whether it was appropriate to inform and so on. You will see the proposal that we made and we thought that that was consistent with the bill. I do not think that it was necessarily something that the cabinet secretary would be opposed to. It is not imposing an extra test other than one that is within the intention of the bill. If you are going to impose a duty of consideration, have the full commitment. I also wondered whether there is any conflict between a statute and the code of practice that the statute will prevail. I wondered where the statute is silent and what the code of practice speaks to something. Where does that stand legally if we went to judicial review, for example? In the existing bill, you require compliance with the code. If that is the case, then in any judicial review it would be expected that you comply with the code. This is stronger than guidance. You are imposing duties on people in terms of the code. Does that mean that, from a technical point of view, the code could change the law in this area and change the thresholds or where proportionality sits in theory? It could not change human rights issues. If something was contrary to human rights, then the human rights would prevail. Anything that was in the code would either have to be read down or disregarded. It could not change something that was imposed by European regulation, because a European regulation prevails over domestic law until we leave the European Union. We are in the hands of the bill that came out last Friday from the Westminster Parliament. The bill could, usefully, set out a number of ground rules around us. The bill should set out what the law is. The code of practice should say how you implement it and should not be creating any new rules or new standards or new tests. It might set out or clarify which tests the existing law expects you to apply. The logical sequence of events should be, as one of you mentioned previously, is sharing the information going to assist the wellbeing of the child, however we define wellbeing? If yes, then you proceed to go to not immediately, can I legally share it? I think the first question you need to ask is, can I share this without consent? The reason that question comes first is so that you are not then going through this mock exercise of seeking a consent when you have actually decided you will share it anyway. If the information is sufficiently important that you feel you should be sharing it without consent, then arguably you are probably going beyond wellbeing anyway and you are starting to stray into child protection territory. If it does not pass that threshold, then you come into the ask for consent and then try to figure out how you do that in a way that is compatible with what you want to do. However, I think that it is important that you share the information that you think is sufficiently important that you should be sure that you have the consent. Part of me is thinking that you have gone past wellbeing and you are starting to stray into child protection territory. If it does not pass that threshold, then you come into the ask for consent and then try to figure out how you do that in a way that is compatible with the GDPR requirement that says that if there is a power and balance consent, it is not always going to be appropriate. The code of practice might useful address that kind of area. I can say a code of practice that says that when seeking the consent from the young person or the parent, you must make it absolutely clear that there will be no adverse consequences if they say no. If that is not made clear and I appreciate Janice's experiences, that is not how it works in practice at the moment. If that is not made clear to the person, then you cannot really say that they have given a freely informed voluntary consent. That is a level of detail that I would anticipate a code. That is very helpful. My final question comes back to a point made by Daniel Johnson around the statutory nature of the code of practice and the fact that there is no direct parliamentary scrutiny or vote. I was quite interested in the fact that the bill team last week said that their thinking had been influenced by some approving comments made by the Supreme Court in relation to a statutory code of practice in relation to policing in their judgment. When you go back and look at the code of practice that they refer to, it was introduced to the Westminster Parliament by statutory instrument. You need a statutory instrument in order to lay those codes before Parliament. Do you think that that would be appropriate in this case, given the quantity of complex legal information that will have to be contained within the code of practice? That is a policy matter, isn't it, as to what the committee is prepared to do and recommend to the Parliament? In the Supreme Court's judgment, in its reference to that, it recognised the difference between a statutory code of practice that required the express approval of Parliament and a code of practice that is drafted by ministers at their discretion. If there is a legal distinction between the quality of those two instruments— You could read that until what Lord Reid said. I could see that you could read it, but I am not in the mind of Lord Reid, so I do not really know. Do you think that there is a possible distinction? Yes, it is. If you read through, I made a note of paragraph 84 and paragraph 100 in the judgment of the Supreme Court, which I thought reflected somewhat on this, and it is probably consistent with your comment. Thank you. Can I just say that it could possibly mean anything? But, Claire, you wanted to come in. I just wanted to come in on a point that Kenny Meehan made there about giving consent and adequate consent to share information and a power imbalance. Surely there is already a power imbalance in most areas where you give consent if you give consent to an operation. There is a power imbalance between the surgeon and yourself. You give consent to a lawyer to do something that has a power imbalance there, so that already exists? It already exists, yes. That was all that I wanted to clarify. Thank you. Can I just, before I move on to Daniel, just one comment that Oliver made. If something is on the face of the bill, it becomes much more difficult to amend or amend at a later stage if circumstances change, and surely we should not be suggesting that something should be on the face of the bill when we are facing the changes that we are going to be facing with legislation in the Westminster. Surely what we should be doing is with the code of practice, which is much more flexible, should be there so that we can change it according to circumstances. I think that I said previously that we need to take everything else away. Ultimately, this bill is a vehicle for the statutory code of practice. Given the importance that the Supreme Court has placed on that, I would not suggest that content of the code should be within the primary legislation. I do not think that that would be appropriate at all. I do need more flexibility, but I would suggest that given its critical importance to making this work in a human rights-compatible way, it probably should be contained within secondary legislation to allow full parliamentary discussion of it rather than simply being laid before the Parliament. That is not how it is generally done here. Usually, it is not being done on the back of a Supreme Court decision that says that if you do not get this code of practice right, you are not going to be compliant with the law. Every single part of legislation has to be compliant with the law, so I do not really see that that makes any difference at all, except for the fact that it has been brought back to us. The same principles apply when we were doing this originally. We had to make sure that it was compliant with the law, and the Supreme Court said that in that case we were not quite. However, the same principle applies with this as it does with any other piece of legislation. Oliver, do you want to come briefly back in? Sorry, just on the point of timing because it has come up again and I meant to ask it. Do you think that now is a good time to look at this area of law at all or, given the point that you have mentioned in answer to the convener, it would be better if it had been a moving target and things just to wait a while and see where things settle? You are being asked to pass legislation that is compatible primarily with data protection law. I think that you have given yourselves a near impossible task, given that data protection law is in flight at the moment and that it might be more sensible to defer detailed discussion of that until such time as the UK Data Protection Act has been passed at Westminster. To that would be that we did not set the timetable for Westminster, but also the protection of our children should not be held in abeyns until Westminster decided what their legislation should be. Daniel, would you like to come in? If I can briefly paraphrase what you said at the beginning of your evidence was that essentially the conflict inherent within the law previously has been resolved, but to create a more difficult decision for practitioners. As legal professionals, could you maybe just bring out how finely balanced that decision would be for you as legal professionals with your understanding of the law? I put myself into the position of the primary school teacher and I say, well, piece of information has come into my possession. Should I be sharing this with social work? I am having to go through an exercise that, at the moment, I do not have adequate guidance for. I am going to have to say to myself, well, does this piece of information impact on some aspect of the Sharnari test? Does it impact on the way that this child is achieving? What does that mean? Is it necessary to share this information to allow this child to achieve better? If I do not share the information, what is the effect of that? If I am thinking of sharing the information, is it going to be a proportionate sharing? Is the sharing of the information going to take result in a problem that is more serious than not sharing the information? The thought of a primary school teacher sitting down at four o'clock in the middle of marking a load of books and thinking this one through without help and trying to make their way through a code of practice on things which I, as a lawyer, would find difficult in the knowledge that if they get it wrong, it is going to be raised in the court of law. Strikes me as being something which would be unattractive to my primary school teacher. Does that give the sort of flavour of what I mean by that? Mr Beacon, would you agree with that, and would you say that, even as a legal professional, that would be a difficult decision to make? As a legal professional, where I would normally be involved in this, I would be providing the legal advice to a practitioner. Typically in this area, it would have been social workers that I would have been dealing with rather than education professionals, but the principle is the same. I can provide the legal framework for them, but they are also the people who have practitioner knowledge and experience and skills that I do not have, so it is not purely a legal question. I can very readily say, I have looked at this and here is the law. Not readily, it is a difficult question, even for a lawyer. At the end of the day, I do not know about child welfare. I am not someone who works with young people as a professional, so I am dependent on the social workers, teachers or healthcare workers to provide their input into that process. I can envisage an awful lot of people who are given name to person responsibilities having their legal department on speed dial. Just following up on that, Janet Scott raised the shinari indicators. It strikes me that, if you look at things like included and achieving, you are talking about asking professionals to consider sharing data in areas that, before the legislation, you would not even begin to consider sharing them at all. Is that a fair statement to make? I think that it is a fair statement to make, yes. You are opposing an additional duty of consideration, but that is only the first step in determining whether or not the data should be shared. Finally, I will follow on from some of the comments and questions asked by Johann Lamont about evidence and how you would make that decision. It strikes me that, by stating this duty to consider in law, people will be subject to challenge whether or not they consider adequately on both sides of that equation. I was wondering if you could explain what the potential legal liabilities are, both for service providers and individual practitioners. Do you think that they will be challenged as to whether or not they are adequately considered? Is the danger more in terms of when they share or might it be more when they decide not to share that they might get challenged? It is a downed if you do, downed if you do not situation. You have brought that home to the professionals who are involved in the welfare of children. In cases where there is an obvious child protection concern, then, of course, you share, but you do not need the legislation to do that. We are doing it anyway. The legislation adds nothing. What the legislation adds is a duty to consider in circumstances where you would not previously have considered. In my field of work, I am dealing with litigation regarding children. If it is found in the litigation between parents that a teacher has shared something when perhaps they should not have shared something and it has come out and escaped into litigation, there will be criticism. That would be the sort of field where I would come into this. At the very worst, if data was shared absolutely inappropriately, of course, there is a fine and there is damages payable by the relevant authority. That will come under the general data protection regulation and become rather more severe than it is at the moment. However, one would hope that one would never get to that. That is the most extreme. The least extreme is simply criticism. Is it conceivable, though, that teachers in health might end up facing litigation? Potentially. I would not have thought that they would face personal litigation in the absence of bad faith of some sort. Simply making the judgment call incorrectly would come back to the employee organisation rather than to the individual. Just on Diana Johnson's question about whether a teacher or could a teacher potentially face litigation, the Parliament is going to pass legislation next year to make head teachers specifically accountable in the law for their schools. That could mean if not the primary teacher or the particular teacher, the head teacher, as a corporate person responsible for that school. That drives down responsibility from the local authority to the school itself. Yes, I can see that. I can understand that. One would hope that it wouldn't happen. Indeed, of course not, but there is that potential, which you would concede. I would like to go back a little bit more on this question of consent. Both your organisations have indicated that you would like explicit reference to consent on the face of the bill. Is that really necessary? Is not adequately covered in the code of practice? There is a non-consensual element in the bill as it currently stands. The provisions that relate to a change in service provider actually say that the outgoing service provider will provide the details of the child or young person to the supposed incoming service provider. That does not reference any where consent. It just places a straight duty on the outgoing service provider. That is made subject to the 26A tests of, is it data protection compliant? The problem that you have of that is that you are going straight into that same logic puzzle that the Supreme Court wrestled with and concluded was such a weird question that it was unclear and therefore fulfil of the tests. Because it is simply the name and address of the young person in question, it can probably be done in a proportionate way, but we already have an unconsensual provision that is in there. I think that you need to recognise that. The requirement for consent I think would probably be more useful to be addressed by revising Section 26B in terms of what the code of practice needs to do to actually say if you are having it in the primary legislation, but the primary legislation is to set out the parameters of the code of practice and I think that it could usefully clarify that the code of practice must deal with the consent issues in relation to this. Can I come back on that and say it is not just consent? We have talked a lot about consent, but it is also telling people the information has been shared. One of the things that is focused on by Lord Reid in the Supreme Court is that people will not necessarily know that their information will be or has been shared. That is why our proposed amendment or suggestion to you was that people should be told if the information has been shared. There may be circumstances when you cannot do it because it will be dangerous to the child, but in general, unless it is going to be dangerous and cause a real problem, surely people should know that this information has been passed on? It seems from what has been said today and some of what your organisations have put forward here, you are indicating that consent in itself is not necessarily a gateway to releasing information or sharing information. Consent, if you can do it validly under the GDPR tests, is a gateway for you to do it, subject to the caveats of how do you ensure that it is. I was asked a question of is there an existing power imbalance? Yes, there is, but what there isn't at the moment is a legal regulatory framework that makes that a particularly problematic issue. That is changing, so the existing power imbalances, yes, they do exist, but the legal consequence of that power imbalance will change come 26 of May next year. When I look outside at what the professionals out in working with children and so on, what they are doing and what they are sharing at this time, is this so much different? Are we fundamentally changing these responsibilities? We are fundamentally changing how we approach it. For my sins, I am responsible for GDPR implementation in my own organisation. We are having to begin the message for staff to say that this is a fundamentally different way that we are going to have to work. I have spent the last 17 years that the data protection act has been enforced saying to people, get consent, get consent, get consent. I am going to spend the rest of my career probably saying, are you really sure that you want to ask for consent? I do not think that that is the way forward for you. I think that there is a fundamental shift being driven by GDPR in terms of how we engage with people. That change across the board also needs to be reflected in this legislation. Are you saying that that affects people who at present are engaged in fields where they would have to consider and decide on sharing information? Yes. At the moment, if I can give the example of a social work department, we have a social work information system that records client consent to holding the information, sharing the information with the health board and so on. Actually, when we analyse that in GDPR terms, what we should be going back and saying to the clients of the social work department is, now that we have looked at this against a new legal framework, if you want to engage with our services, we have to be able to process your information in this way. For the course service delivery, we will not be using a consent model anymore because that is actually misleading now, if you look at it in those terms. We will be saying to people that you have the choice to engage with our services or not. If you choose to engage with our services, we must be able to do this with your information. On the back of that, there will be additional services that we can offer to people where we would be seeking consent. An example of given would be income maximisation. If you engage with social work because you have an addictions problem, we need to be able to process your information to support you with your addictions issues. That is a given. We cannot do it without having your information. However, we could also take that information and pass it to another team who can look at it and say, you know what, there are a number of benefits out there that you would be eligible for that you are not presently getting. There are a number of services that you can engage with that you are not presently getting. We would need the consent of the individual to do that extra piece of work because that would not be the core service that they were engaging with. That would be an add-on and we would be looking to seek consent for that kind of additional work. That is the kind of thought process that we are having to change the mindsets within the organisation ahead of GDPR coming in. It is a big change. Given that it appears to be a fairly fundamental change in the way that the professionals are going to have to approach this in the future anyway and that it is being driven at this moment, is there a benefit, or I would say there probably is a benefit, in getting this right in terms of named person because it would create a structure through which they can operate? Absolutely. However, if you take the example that I just gave of the social work with the add-on service, I think that we can make consent work here, but it needs to be driven very carefully in terms of how we approach it. Janice, from discussing this previously, has instances where consent at the moment is not exactly freely given in the context of how it is approached by the professional saying, we need you to sign this form or else. We have a signature on a piece of paper. Is that a freely given consent? No, it is not. All those complexities are out there at this moment and are rather gathering force, so there is a bit of an impetus to get this right. Well, thank you very much for that. I would like to thank you for attending today and giving us your words of wisdom. I will suspend for a few minutes to allow the next panel of witnesses to take their seats. Thank you very much. I now welcome to the meeting Dr Professor Alison McCallum. Apologies for the wrong title. Director of Public Health and Health Policy NHS Lothian, Professor Hugo Van Worden, director of Public Health NHS Highlands, Valerie White, consultant and dental public health NHS Dumfries and Galloway, Jeane Cowie, principal educator NHS education for Scotland, Annette Holliday, health visitor and member of unite, and Lorna Greene, policy officer royal college of nursing Scotland. Before I start, I should mention that Professor Van Worden, Valerie White and Jeane Cowie are appearing as individuals who work for health boards. Their perspective is not necessarily representative of their employers. In addition, Annette Holliday is appearing as a health visitor and an accredited member of unite. I would like to talk a little bit about sharing information and what scenario you have at this time in connection with your current practice for sharing information and wellbeing and without consent. Would someone like to give me a little bit of a rundown on that? I am happy to take that. In dentistry, we had been moving towards the implementation of the Children and Young People Act. It was a different threshold that we were looking at, the thresholds for sharing information. If there is a child at risk of significant harm, we are quite clear that child protection. There was a bit of a cultural shift in sharing information on health and wellbeing concerns, which needed a lot of education, training and support to do that. Until the Supreme Court ruling, we had been on the understanding that there was a duty to share that information regardless of whether there was consent if there was a health and wellbeing concern. That was the path that we had anticipated that we would be going down. Since there has been the Supreme Court ruling, we are at the level of confusion as to what we can and what we cannot share in terms of that threshold level. It does now appear to be a bit confusing to us. We are clear if it is child protection concerns that we share that, if it is wellbeing. I think that we are struggling with that at the moment. Typically, in the past, what information would you share? Usually, with dental services, it would have been if there was significant risk of harm to that child. If there was a child protection issue, that would have been shared. That would typically be without consent, because child protection overrides? Yes. The best practice would be, obviously, to seek consent if that was possible. Obviously, child protection overrides that, so it would have happened and referrals would have been made to social services in those instances where that concern was out there. Does anyone share information with consent, or does it always come down to child protection or similar overriding issues? We would always share in practice in discussion with the parent, especially if I was wanting to discuss with other involved professionals. I would be asking the parent if it is all right if I could contact those involved. An example would be for developmental issues for a child, for example. I might be wanting discussion with the nursery about how they are supporting that. Our speech and language colleagues are discussing with the GP about health issues. They are not all child protection related. How do you think that the requirement to consider sharing information might affect the way that you operate at the moment? Part of the background is that historically, health professionals have worked on the basis of an assumption of confidentiality, so that nothing is shared unless there is consent or there is some public benefit reason. That is that historic assumption of complete confidentiality, unless, as a starting point, Professor Warden, you said that there is a public benefit reason. We are not talking about exactly the same thing here except that we may well have lored the bar to what we consider to be a public benefit in this case, the welfare of the child as opposed to the protection of the child. The welfare of the child is not a welfare of the child. I think that you are right. That is fundamentally what it is. It is a change of where the bar is in relation to that. The slight risk of a clash, as Alison McAllum has pointed out, is with a clash with professional guidance for doctors where the general medical council would put a bar in a particular position. Professor McAllum, would you like to comment on that? Yes. I wanted to make two points. One is about the infrastructure in which we share information for the purposes of providing services to children and families. I mentioned that in the evidence from NHS Lothian, which is that we have certain duties under NHS and education acts to work together to provide safe, effective care for children, and that includes things such as immunisation, ensuring that children have the support that they need should developmental issues become a problem, that there is not a lack of a framework for that to happen when an individual family comes forward. There is one bit for me about ensuring that we have the right framework that allows information to be shared for the benefit of children when it is appropriate to do so. The other is that we talk about consent when we mean both working with children and families to engage them in services to come to a shared view of the best way forward and when we are talking about formal consent for procedures. The duty to consider sharing information seems to me to be an appropriate phrase that allows you to engage children and families to come to a shared view, even if it is not appropriate to go down the route of obtaining formal consent, which the child, older children and families could withdraw. Felly, on the other hand, we are in situations where it is a sort of professional relationship with the family or whatever and a decision is made within that context as to the best way to care for whichever member the family requires the care, as opposed to sharing information with perhaps third parties, which is perhaps the more contentious side. The framework that we have in place in Scotland at the moment allows us to have formal relationships between, for example, the health service and the local authority and with third sector organisations. To agree in line with the Data Protection Act, what information is shared for the purposes of providing services, because local authorities do not provide all services themselves. Some of those are provided under contract to third sector organisations. It is important that the frameworks that we have put in place to enable people to seek help do not get closed off because of concerns about sharing information that children and families have already signed up to as part of an engagement with service. For me, most of the work that we do around appropriate sharing of information is, as far as possible, coming to a shared view about the best way forward and then agreeing what sort of information would be shared in what format, rather than it being a blanket yes or no. I wonder if you could repeat your original question about the changes to information sharing, because I want to make sure that I answer correctly there. Your question was that you were asking about what the implications might be. Yes. Given that it is proposed that there be a requirement to consider sharing information, how does that change current practice, the way that you are operating at the moment, will it have a significant impact? The ICN thinks that it could potentially have quite a significant impact in the form of leading to defensive practice. By putting in this duty to consider that you are leading professionals towards what might become a tick box exercise, which could take away from meaningful practice. We would see that as ultimately perhaps having the opposite effect of what the Scottish Government would like in terms of implementing name person, which is about achieving the principles of GERFEC. We think that that is best achieved by allowing professionals to develop trusting relationships with the people that they are providing services to and giving them the most time possible to engage meaningfully with the people that they are giving services to. By introducing a duty to consider where worried professionals might find themselves becoming nervous and wanting to evidence and cover all their bases, which would take time away from that meaningful face-to-face interaction. That is what we would see as the potential negative impact of that duty to consider on practice. Has the Supreme Court decision had any impact at this point in terms of your confidence to be able to continue as you are in sharing information? Just to clarify, I am not a clinician, I am not a practitioner, I am a policy officer, so I am not out there on the call face delivering that kind of care. What we do here from our members is that, as a result of the judgment, there is confusion and there is nervousness. What was being done as best practice and what had been taken forward as a good—we are very positive about the principle behind name person and what was seen as a good policy change is now at threat because practitioners are increasingly nervous, and that is because of a combination of factors, including the negative media that is surrounded this and the controversy that has followed it. As part of what we have done in our engagement with the Scottish Government, we have been very clear that we think that some of the messaging needs to change around name person to make it clear that what it is fundamentally about is building trusting relationships that are about supporting people and working in partnership with families and children. That is what our members as health visitors set out to do every day and it is about making sure that their practice is as meaningful as possible. We are concerned that that duty to consider could get in the way of the meaningful part of the practice. I was just going to ask if anyone else has similar concerns about the Supreme Court decision. It is about that defensive practice and I think that we do see defensive practice happening now anyway, regardless of whether a named person was there or not. I think that people do get nervous about things. There are concerns sometimes about that professional regulation, etc., so defensive practice is part and parcel of everyday health as in practice. Daniel Johnson, you wanted to come out on that point. Yes, I am very interested in that point about defensive practice. In particular, the RCN and your submission have said that you think that the duty to consider may undermine the principles of GERFEC by resulting in this defensive practice. That is quite a strong statement. Can you maybe just draw out what you think the impacts and consequences will be of that on the ground if that were to come about? I think that what we mean by that is that if you go back to where a named person came from and where the concept sort of took off and you look at Highland as the example, it is really positive as an example of what happens when practitioners are allowed to develop meaningful relationships and build trust and when information takes place in a way that is appropriate and in line with the legal parameters that are already there. That happened as part of best practice and we see that as being a really great contributor to GERFEC and promoting and supporting well-being. What we see here with the duty to consider is that idea of one, affecting meaningful practice, two, turning it into tick-back exercise and three, affecting the time that is available to professionals to provide that face-to-face support. That is really key if you are looking at the original place where the concept began. It was the time and the relationships that got built and we think that that is key to GERFEC. It is key to work in partnership with children and families, it is key to offer support, so we do not want to see those principles get undermined by a reduction in the time available and more time spent at a desk shifting through paperwork. One of the points that the bill team made was essentially that this duty to consider, which I think is the key change to practitioners, is a new consideration that they have to make, essentially just a continuation of their professional judgments that practitioners will be making day to day. Do you think that it is the same kind of decision in judgment or that it is a different kind of judgment? What kind of level of additional pressure do you think that this new duty may or may not bring about on the ground? I think that there is definitely, with some of the GERFEC principles, there are definitely changes to decision making practices in health medicine practice currently, so that therefore creates differences. The issue around time goes back to resource and being able to ensure that you have an adequate number of health fisters or beyond adequate number of health fisters so that time can be spent with families and shared decision making can happen because we know that that is a longer, slower process than if we move to that sort of fixate model of professional knows best. Those things take time, they take energy to build and if we are not resourced enough then we move back to that tick box exercise of making sure that we are covered rather than working in true partnership with the families. Just further to that point, one of my concerns is that health fisters will be named persons for children beyond the point that they might ordinarily have contact when they are at nursery and so on. Is that a concern in terms of just ensuring that there is sufficient contact to enable health fisters to even have the experience to make those considerations in the first place? Of course the idea is that we have an enhanced universal pathway that is brought in when again we are resourced enough to be able to deliver that and that will return the additional contacts that we're lacking in our olds where there was three minimum contacts for a health visitor and we'll move to 11 and one of them will be in the preschool year. Health fisters have over time built up very good communication with nurseries but yes, as long as no health board has yet implemented the universal pathway contacts that creates concerns about the length of time before children are seen and it does go back to resource. I've just got one final question if I may. One of the points that was just raised by the previous panel by the fact of advocates in particular was that this may well lead to legal challenge, certainly of service providers and perhaps of practitioners. Is that a concern to RCN and UNITE and what level of consideration have you given to that prospect? Legal challenges to the practitioner or the service provider? I think there's certainly nervousness about where responsibilities lie around delivering of named person services. Certainly for the RCN, we're very concerned about that. It is within that bill that its service provider status organisation has this duty to consider but when you think about that, how does an organisation consider? That's a very vague, strange concept and the reality is that it takes a person to consider. It also takes a person to evidence that they've considered. Organisations can delegate duty and when they delegate duty, they delegate it to professionals who are individuals. We are concerned that that would affect our members, that our members could find themselves exposed to professional risk that wasn't there previously and is disguised in this bill by hiding behind words like organisations and service providers. The advice that we got was that it's the organisations that are responsible for this and not the individuals. That's the way it's being written. The bill's not law yet but that's certainly the advice that we've got from... Excuse me, Daniel. I'm speaking. That's the advice that we got from our support team before this committee today. As a saver, we're still through the process and we'll see how that works but what I'm trying to do is put your mind at ease that there's not a trap here for the practitioners to be caught. Professor Macallan. Thank you. We already face challenges from parents particularly who do not want wish information to be shielded about their children and that does impact on the way that we provide immunisation services for example because we are required under the NHS act to offer immunisation to all children and it's really important that we have positive child identification so that we can identify those children for whom immunisation is not clinically appropriate but that everyone else can be offered and there is a point of consent where parent and indeed older children can refuse consent for immunisation but actually we need to know who every child is and where they go to school in order to provide universal services as well as to ensure that we have the infrastructure in place to provide additional support for children with chronic and ongoing problems so this is already a problem to us. In the health service however we have called to call guardians so people like myself who take on that organisational responsibility and I have an information governance assurance board that covers these issues and has two non-executive directors of the board on it so we have that organisational cover when we work with local authorities we have a partnership but they don't have the same infrastructure that we do to enable those sorts of decisions to be taken professionally with legal advice but not directed solely by the actual words that are written in the law so there is an opportunity there for us to be moving to legal interpretation of things where actually that wasn't the original intention of this process. Okay, Professor Ward. I have just a tiny small practical point is that it may be helpful if the guidance clarified how long information was stored for and obviously if there is duty to consider and then I think that's just a small practical issue that would be helpful. Okay, thank you for that, it's helpful. I would also like to raise that we understand the position about the organisation's responsibility but that's very difficult when you're one person sitting in somebody's living room and also that actually and certainly in health isn't practice no other practitioner has your knowledge because no other practitioner builds up the same relationship at the same time so the information you're taking back to your organisation is yours. No, I completely accept that what I'm saying is that the umbrella cover is the cover of the organisation it wouldn't be and at holiday that would be held to account as the information we were given that would be local authority. I appreciate that but I'm the person holding that information and retelling it back to my employer and no one else can independently verify that because they also haven't been in and around that child at the same time. And after the organisation is placed trust in you and they're responsible for your behaviour on this one. There's a couple of people who want to come in. I'll come back to you, Lorna. Okay, Gillian. Yeah, I know a few of you were sitting in the gallery when the previous panel were in and it was Janice Scott made a recommendation and then there's a submission as well to us that people are notified when data is shared about them and given what you've just been talking about what impact do you think that could potentially have on the I don't suppose the safety of children or the you know if you've noticed that maybe a parent has refused care for a child that concerns you and then they have to be notified when you make another person aware of that. How does that impact? How could that impact? People want to obviously undertake good practice and get consent where that is appropriate but there is that tension between you know how is that going to affect your on-going relationship if you have to seek consent and that is a very difficult one because you do obviously have your professional obligations but you don't want to stretch the relationship that you have with the family and sometimes maybe if you were able to have an informal conversation with the name person about a low level concern that you had that name person might be able to provide use with some reassurance about that or actually maybe say actually thanks very much I think I'm going to have to go and you know do some do some looking into that so I think it is a tension that has to be originated to let a parent know that you that she's spoken to the name person that you think that that could potentially in some cases be an issue. I think potentially that could be a barrier I mean I think realistically there historically has been nervousness even about maybe some child protection you know we've got over that now we've moved we've moved past that but I think it is that cultural shift of a new threshold that we're in in terms of of Garfec and that wellbeing approach and that supportive approach which you know if you're having to start sharing letters and things can can make it difficult to seem like a supportive approach that the relationships can be fractured and it can be very difficult to restore and obviously at levels of child protection there are other processes that come into play so at the level of wellbeing there is you know potential for more of that and perhaps even not quite the level of the framework of child protection that you've got to counterbalance that it does come down to trying to have shared decision making and shared views with families and as practitioners being brave to go beyond that but you certainly don't want fractured relationships with more families because they are damaging in the longer term. Thank you. Lawn agree. I'll just answer that one what I'd say is when the RCN has approached us we've been quite clear in our approach that we see name person as part of an early intervention and prevention programme and that really well-being conversations that concern wellbeing should for the most part be able to take place in a forum where there is consent and where you are having like a dialogue with the family and their children and if you are concerned to the extent where having had that conversation and you don't feel you feel that child's at risk of harm that is that is really veering towards child protection of which is a different conversation to this one so I just think for us we've tried to really focus on this as part of an early intervention prevention strategy and policy and keep it rooted in that domain. The one thing I wanted to raise though was when we were talking a little bit earlier about the duty to consider and the impact on professionals I just thought it's worth mentioning as well because it hasn't been mentioned yet is that duty to identify because that's also there and that also could have repercussions for professionals because it's again it feels quite vague to us and we're not entirely sure what's meant by it and is it something that duty to identify is identify information that comes directly in front of you or is it a duty to identify and further investigate what does that mean for the role of the help visitor and you know when we had these conversations with our legal professionals within our organisation and they were just a little bit kind of concerned around that and flagged the potential to then turn this role into a little bit of a watchdog role even with that that you should identify. It's not something we've explored a whole lot here and I didn't hear it explored earlier in the other session either but it's just something to definitely flag because we do think that could also have repercussions for our members. That's helpful, thank you. Dr Ward. I think trust is built on often on sharing and on openness and transparency and I think that I would certainly support the that under normal circumstances information that has been shared would be also that families or would be informed of that and for two reasons first of all I do believe it builds trust and secondly it provides the opportunity to correct matters of fact because often these are quite complex areas and it is possible that the professional may have some matters of fact incorrect. Okay, thank you. Joanne Keane, do you want to come, sorry? Thank you. I'm interested that we've said that if there's a failure in the system it would be responsible to the local authority of the health board but what internally would happen within these organisations for them to protect themselves and what consequences are there then for practitioners if the health board is saying we're going to get into trouble for this we want to make sure that our employees are all you know doing the right thing is that a different kind of pressure on people and what maybe to ask Annette have you had training around this because presumably from internal within an organisation in order to protect itself they want to make sure employees are doing the right thing. Yes I mean I'm not here to speak for my organisation so but as a health minister we've had training although we've had training before the Supreme Court ruling so there would have to be update and changes to that regarding the information sharing bill because when we got trained it was about duty to share. Like anything I think what you're asking if there's failures there I think it would follow the usual sort of investigatory proceedings and I think practitioners are concerned about disciplinary proceedings against them and have there been within health boards conversations about the nature of that disciplinary procedure if there's a lack of clarity about what the expectation is? I can't answer that I don't know. Certainly from our point of view there's been a lot of training and then with the Supreme Court judgment there were further communications that went out that said please continue to work in the current professional manner and to seek advice as appropriate so the child health commissioner sits on both our board information governance assurance board and on our multi agency data sharing partnership so she and one of her support folk have a work programme that's designed to help as far as is possible ensure that people understand how to do their job and how the organisation is going to support them. Thank you. Can I just ask a couple of questions about the individual responsibility for decisions that you've been touching on this morning because I don't think that is clear. I think your concerns are clear but I'd just like to bottom out what those concerns are. We're discussing not the principle of name person we're discussing the draft bill in front of us and the code of practice which you will have heard the earlier evidence of lots of concerns about that so as it is currently constituted could the panellists possibly describe your concerns about what this means for individual responsibility for decisions? The code of practice specifically. In engaging with the code of practice I appreciate what you said earlier Gillian in that previous session because it is an illustrative code and in fact looking at that word illustrative that really says it's an example code so it in no way indicates what we could reasonably expect to see at the end of this whole process. We as the RCN have engaged with the GERFEC team as part of what they're doing with stakeholders along with Unite and a few others and at those meetings we the most recent one we were told that that code of practice would more than likely look entirely different by the end of this whole process so for us we haven't actually spent much time engaging on it because one we don't think this legislation is the right way to go about fixing what the judgment said about name person the 2014 act and we don't really see the point in engaging on something that's illustrative that could really change dramatically so for us there's not a whole lot we can sink our teeth into the one thing I will say about it though is we haven't been given an assurance of where this will sit in relation to the NMC's code of practice and what I mean by that is we are clear that anything that becomes law will in a hierarchy will come above the NMC's code of practice what we don't know is where do two codes of practice sit in relation to each other does one have a hierarchy over the other do they sit next to each other we haven't been told that and so that for us is probably the main concern at this stage is getting clarification around that so that if eventually this does come about and we do have to comment further on a code of practice we'll at least know where it sits in relation to what the NMC has but that's very fair um the Parliament's being asked to pass legislation for for a code of practice now which is in draft and as you've just said we actually don't know what it could look like in the future but yet the Parliament is being asked to pass that legislation which gives effect to that code that's not the way it should be done is it well that's why we don't think this legislation is a good idea. Actical question which relates to quite a few of the comments that you have given that the proposed change that is that you now have to make a decision about whether you should share the information or not and you've just flagged up some of the codes that you would have to be cognisant of in order to do that would any of you be able to quantify the amount of time that you would have to spend in your daily job ensuring that that was documented and obviously that you were accountable for why you had made a decision or in some cases why you hadn't chosen to pursue it would we be able to get from you any indication of the time that might involve? I can probably answer from you know identities of an independent contractor sector if they had you know to sit and document and write all this down that is not probably built into their daily routine of how they manage their their patience so it would have you know would have a significant impact in terms of time you know on them but you know I do think you know I'm hugely positive of getting it right for every child and the principles about it but I do think that how it actually works in practice to maximise because I think general dental practitioners have a huge amount of you know information that they have you know that could support the health and wellbeing of of children that you know but that's not being factored into and there's probably other professions as well that that would also have impacts on as well I think the financial modelings mean maybe on the health visiting aspect but I think it's much wider than that as well. Mr Mordden and I believe I cut you off the last time and I didn't know it's you. I think there's implications for individual there's also organisational time resource in terms of the collision the transmission across organa between organisations and the storage and then obviously eventually the disposal safely of such information. Okay thank you Claire you got a shot. Yeah very briefly just to come back on Lorna Green's point and you may not have seen the submission that the NMC has had made where they said that their main interest was to make sure that the as the UK wide regulatory provisions and any name person information sharing provisions in Scotland can operate beside the code that they could currently see no conflict between the draft legislation proposed or their own regulatory approaches notably the code. I have just offered you that reassurance that they're obviously they are engaged in this process which they need to be. Sure we we I have read that and we they are part of that group that we are part of with the GERFEC team and that is correct but what they say there is the legislation they don't say the code of practice so they haven't commented on the code of practice because they are aware as we are that that isn't the final code of practice absolutely so that's that's still our concern. I guess it's just to offer the reassurance to particularly registered nurses in midway so we may be watching this that the NMC are involved in this and we're working with them in this process which is really important. Good morning panel, thanks for being here. One of the strong themes that came through the submissions was the need for training and guidance on information sharing. I'd just be interested to hear the panel's reflections on the experience perhaps of the training that was provided for the 2014 act and the type of training that you think would be most useful and also we've heard that obviously GERFEC is to cut across all teams who are working with children so how wide do you think the training needs to be? The training needs to go across all professional groups certainly NES have been involved in developing resources online modules but they've been enrolled until decisions have been made about information sharing but the training needs to be sustainable and practical with real life examples and scenarios to work through and to explore decision making and it needs to be sustainable and I think there needs to be to support the training and assistance of supervision or in place to support practitioners with their decision making and I know that they've been looking then at supervision in the nursing field and I'm not quite sure what's happening in other professional groups but with regard to making sure or ensuring that there's consistency across the board I think there maybe needs to be a model or a system of supervision across professional groups as well. The different professionals have different models of supervision at the moment so is that something that's going to be challenging for them? Possibly. I would probably say again that the training around bringing in the other aspects of the act were challenging to the workforce and there was also where practice support was required so people were able to go and access training but actually putting that into the practice and changing models of practice was hugely challenging and is still not fully embedded in what lessons can we learn from those challenges? Was there something specific that is a big question? I was involved in my organisation for the rolling out of training around the national practice model and we had a two-day training for health visitors and then I think there was an expectation in the organisation that people would then go off and start to implement and very quickly we realised that that would not happen and we are still embedding the change and it will come down to more supervision at times of change it will come down to caseload management decisions it might come down to more audit etc etc so there's a huge resource implication we also had the the next training after that so there was the organisational one and the wider and it's still not fully in. Reflect slightly wider on training. If you are going to train somebody to ask a child can you count to one to five? It's very simple isn't it because the child either can or can't count to one to five so I think what was referred to in the last session as well is in terms of a test like a scenario you've always got a risk of what's called false positives and false negatives in other words that there is a problem but you don't spot it or that you think that there's a problem and that there isn't and the challenge is that you're trying to do that across you know the scenario's safe healthy achieving nurtured active respected responsible and included so one of the challenges with the test is is it administered identically by all people with the same threshold and that is challenging in the context I don't know that there's been any academic work around Sharnari to to explore whether there is inter individual variation around you know the threshold of assessment of wellbeing so that's one of the challenges with training is how do you train people on a test that's not as simple you know does the strip turn pink or red you know pink or blue. With the professionals we're speaking about though and I think I mean if you think about child development you're kind of making judgments on that anyway based on the situation some of the time it's not always black and white is it? Absolutely, absolutely. Professor McCallum would you want to come in there? Yes it was just to build on Professor Van Worden's points really that in line with best educational practice to ensure that everyone can most of the time practice at the level that you would expect them to. Seven and a half hours of training is going to provide awareness raising it's going to highlight gaps in confidence and gaps in on-going skills that then need to be filled using scenarios to test decision making support systems that allow people to have their decision making checked out and on-going support as new scenarios come along that people need and new evidence comes along that people need to learn from so for me it has to be seen as a really important comprehensive programme that links with early intervention prevention and support and even as a marginal additional intervention seven and seven and a half hours is only going to give us a false sense of security. That might be your area of expertise but when new things like this come in and there are new training regimes put in place they do not eventually just become part of the educator's role or whoever would be responsible for training within that organisation and become part of you know the whole training as opposed to a sort of standalone. For example then with regard to the introduction of the health system pathway for example we would have updated we've provided cpd days to upskill the workforce but as Alison says it's more a rare awareness raise and you do expect people practitioners to go and learn more and you're right we did educate or have sessions with the educators of the health system courses in Scotland to ensure that the courses delivered in health system education were addressing the key requirements and priorities for Scotland and the pathway at that time and the children young people act was part of that but again as Annette pointed out it was a couple of years ago and it constantly needs to be revisited and updated. And eventually then it would just become part of again I'm using your role I've just become part of the training for a new recruit into nothing over a period of time but I think it'll probably take quite a while to get it integrated okay thank you for that. The word comprehensive was used earlier and I think that's a word that's missing and what we've seen so far in terms of what training will be provided it does feel like it's pretty one-off a one-off process and we don't feel assured there's something comprehensive to back that up to ensure the delivery going forward. The other thing to pick up on is something Annette mentioned which is resources and resources being massively important when we're talking about training not just in terms of funding the training itself but making sure that when people are out undertaking cpd or further training that there's backfill available that there's cover available and also that idea of supervision if you're going to introduce 500 new health visitors into the workforce those 500 new health visitors will need access to supervision as they're going about doing their day-to-day job because they're new to the role and as much as they will be very well trained that is very important in terms of taking forward their job and that will have an impact on the resources that are put into the profession will have an impact there. Okay thank you very much Ross and then Oliver. Thanks convener just coming off the back of warnaws point about the need for the resourcing of training to be adequate the financial memorandum attached to this bill sets out I think it's just under a million pounds for health boards for the training is that adequate? Around 800 extra health visitors were required to deliver the increased contacts in the universal pathway and for best practice to happen rather than the 500 that was set out by government. This could potentially have an impact on the budgets of services where the training is provided on a one-off basis and that funding has been provided but for on-going training or for training for professionals beyond health visitor roles for example who may be impacted by the name person role that where would that funding come from it might have to be found within services and that again is challenging at a time when resources are very tight. I'm not answering your question totally directly but I think it's part of the modelling there is the assumption as I understand it that where an intervention is required that that will on average be I think 10 hours because I think the important thing here is that for early prevention to work you have to have what I call a latent phase a phase where something's not too bad a problem but you can detect it that you can detect it and that when you detect it you can do something about it that makes a real difference in other words you know you've got an intervention which changes the trajectory for that child so I think the important bit is not so much just the detection but the intervention thereafter that actually puts that child on a better trajectory. Going back to the 2014 act do you believe there is adequate training in relation to that for practitioners who would be involved but weren't the name person those who would be sharing information with the name person? Well I can say that I don't think it went wider I don't think it went wide enough I think that at the time it was about trying to train the people who would be named persons but I know there are other health colleagues who are still not fully trained in Gurfwick and it maybe goes back to Ruth's point that in the same way that child protection had to go beyond women and children's as it first came in and had to be recognised as board wide or in all services then perhaps if we're talking about wellbeing that the same would apply. Falae Wight, did you want to come in? As you say there are both training provided by NES in terms of for general dental practitioners and dental teams but that's only the tip of the iceberg because there is that it's on-going you do need the local training in terms of well what is our local systems here so it's not just the high level it's you know it goes it filters right down the whole system and it does need to be applied to to all professionals as well okay there for be recurring or known recurring funding the one million for training. The one million was for 2018-19 that was one off let's understand okay thank you right thank you ross over thank you can I start just with a simple question from a professional point of view do you think that the bill as it's currently proposed is easier or harder to understand than the original legislation? I think it's positive in that it the aspiration is very clear to give you know children in Scotland the world class development and I think that aspiration is a fantastic aspiration to have and I think that the clarifications have been as a result of supreme court ruling I think so I think generally speaking I think the thing is positive I think there is a huge complexity underpinning that as as many people have alluded in different ways yeah so the RCN is a supporter of graphic and we support the name the principal the name person with this bill what we feel introduced is is vague concepts so what we've talked about already the duty to consider and the duty to identify we don't feel that those are helpful concepts so do you think that makes the decision making process more complicated for professionals than the original bill did I think it's adding to the this burden of complexity and difficulty for professionals well it's difficult to comment on that really because the original act those parts that refer to information sharing were deemed to not fit in with human rights law or an EU law and so whether or not they were easier to understand is kind of irrelevant because they weren't lawful so that doesn't really matter but what matters is that the bill that's in front of us now has vague concepts that we don't feel would necessarily aid professionals in providing a meaningful service that will achieve the best results that could be possible through name person service thank you very much and just one sort of further question round the recording of evidence and decisions i wonder when you talk about supervision and consistency across different services and people getting the same sort of type of decisions being taken every time how do you achieve that consistency without actually looking at the decisions that are being taken and looking at the information that people have decided not to share how does someone supervise that process without understanding the actual decisions taken it's complex i think i know that i think that area for me that i try to highlight my submission was particularly complex is around teenagers where the question becomes is the teenager competent to give consent on their own behalf or not and i think that's one of the areas that professionals would obviously have to make decisions my feeling was that there was a slight unintended mixed message in terms of what was being said in that by considering the well-being of a teenager one is in effect saying that that teenager is not competent to consider and look after their own well-being but at the same time might one might be saying that that teenager was competent to make a decision about consent so there is i think a difference with children under the age of 12 where that isn't the case so i think there may be a fundamental difference one theoretical approach that might clarify that would be just to have graphic applying up to the age of 12 and not applying to teenagers that might be one potential solution or the alternative solution that reduces that mixed message is to say if you're not competent to look after your own well-being in this area you're not competent to give consent as well so i suppose from a practitioner perspective i don't actually think that legislation will ever be that clear it will always be very complex and what underpins that is guidance that is supported by the key stakeholders for those professions so in dentistry you know it's the general dental council it's the defence organisations you know to try and help support you know that because the legislation will always be by its very nature it will be complex and very difficult to to interpret so it's almost going to be that underpinning what's below even below that code of practice is actually probably what's going to be really really important that those that that is in place and agreed by key stakeholders so that we're all clear about that we're all singing off the same song sheet you've mentioned i think it might be laura mentioned the press interest in all of this in the sort of negative media attention do you think that if this goes through parliament and is passed and is implemented do you think there'll be sort of considerable interest in those decision making procedures that happen below the sort of legislative framework do you think there'll be interest in how you know how if something goes wrong do you think we will be interested in the recording of information how it's shared and where you know decisions made at a local level i think that's where the focus of of attention would be i mean it's a difficult question to answer because i don't know what'll happen down the line with this bill um well when we mentioned the media coverage the reason we mentioned that and the reason we flagged it to the gerffec team was because we were worried the impact it was going to have on our members who are trying to do their job and to do their job they need to be trusted by the people whose doorstep they're turning up on in order to deliver care and support so what we want to see is actions that kind of whatever happens with the bill the actions that come out that make it clear that what helped visitors do is they provide care and support and they do that through building trust and meaningful relations with the people using their services and i don't know what way the media will go with this following on from here what i do know is that we want to see the gerffec team put forward the positive messages and underline why help visiting in the name person role can be meaningful okay thank you thank you all but do you got a short supplement? I just come in very briefly on this because i was really struck by it's part of the unite submission where you unite the union said they were dismayed by the approach that many in public life are taking during this debate with the name person becoming the rope in a political tug of war and that the wellbeing of the child and professionals identified the name person being the potential candidates in a battle of political dogma ultimately it will not be politicians who'll have to argue the merits of the name person but a clinician establishing a relationship with the child and her family and i think that's a really important point to make is that you guys are out there at the coalface you are you know working with families you have to develop a trusting relationship and we have to be really mindful of that okay does emdy want to comment on that okay thank you very much uh julian and then tavish made exactly my point okay thank you tavish and the converse of that is that you expect us to pass legislation which works and if there's a code of practice which you've all said today doesn't exist uh because you know it's all going to change we can't do our jobs so uh i get the point about passing sensible legislation which can work but i'm worried about passing legislation which we don't know the basis of it because the code of practice we don't we don't yet have and you've confirmed that today so what do you want us to do do you want us to pass legislation which which you know has got feelings in it or do you want us to wait and i'll ask the government to get this right when all these other things are being sorted out is that's a question for you to answer but it's a fair point it's a fair point to be raised but i don't really think that's what the committee's trying to do is is a put forward legislation we don't know the basis point of being here in that case right tavish fine okay daniel i ask my questions and okay sorry i thought you were coming back in jillian yeah i think most i want to ask about workload and i think you've covered quite a lot of what i would have been asking you about anyway but am i getting the right that i think there's there's an issue here about having to evidence things that ordinarily we write onerous to evidence could provide a bureaucracy that's going to steal the time from the job that you should be doing and i just want to ask i mean we're talked about the illustrative code of practice here and the intention of putting out illustrative code of practice i i took that to be to engender a conversation amongst professionals as to what this code of practice could look like i'm throwing that open to you what would you like the code of practice to look like in terms of and what engagement do you want to have in that process so that the code of practice does get your support as the key stakeholders a professor van worton and then i think the key thing is that it emphasizes that parents are the expert in their own child and that others come alongside to help and support that parent in the exercise of those duties that we want as a society to aspire to fantastic things for our kids and for another generation of children growing up but we don't want to unduly pressurize parents that unless your kid is you know right up there at the very top in everything you you're a failing parent so it's about that that sense of the parent being expert and the system coming along in a really supportive and encouraging way to to help maximize the achievement of every child i think unite would want its members to be able to have a consistency and clarity around it so that every practitioner across scotland can work to the same code of practice and there's not different variations of that there might be local tweaks but generally that there's a consistency and a clear message and it's not based on a whole load of legal to speak that we don't understand because we are health officers and we're not lawyers. Laun? Well as i said earlier we haven't engaged in the code of practice because because of the fact that there's illustrative it's going to change and because we don't support the bill. What what the RCM would like to see is the Scottish Government giving more careful consideration to the merits of allowing best practice in line with data protection law, European law and in a manner compatible with the European Court human rights to be the basis for information sharing provisions and we think that with the right guidance and training professionals can be expected and trusted to deliver this name person service in a way that's high quality and is consistent. We already see it with services across Scotland that they are delivered in line with standards and in accordance with best practice that's laid out in guidance we don't see why that couldn't be the situation here. Does anybody else have any comments? I'm very keen that the aspirations that we all have for children and young people to achieve their potential are realised, that requires that we have an infrastructure that enables information sharing to allow professionals to do their jobs, to deliver universal services and to ensure that practitioners can work with colleagues from other disciplines in order to deliver high quality services. We have to be able to share information in order to do our jobs to the standard that the people of Scotland require us and so any legislation has to support that and not get in the way of it. Given that you probably have to record an awful lot of what you do on the ground already and given that this potentialist consideration might have to be evidenced in some way, is there something that you can all do to say, well actually we're already doing this, we already have this covered, we do not need anything bureaucratic as a layer on top of what we're already doing? You're largely doing that, particularly Highlands have been doing this for a very long time. Does anybody want to respond to that? In terms of a general data practitioner they obviously have their notes that they write so they would have to add a line to their notes to say, I have considered this or it would become a part of the record keeping process but if everything's okay and you don't think there's anything that you need to consider do you still have to write that down? Push is where the code of practice comes in. Thank you very much. I was interested in Dr McCallum's point about the legislation not getting away if people are doing their job. The RCN has basically said that this legislation doesn't help other folk who have talked about the extra burden. All fuels are very complicated so is there a point where you see all of this very technical to be is getting in the road that if somebody has to not just make a decision but has to show evidence that they've thought about it and considered it and decided in which categories they have to consider it, at what point do you see this is getting in the road? What would be the test for that? I think that where practitioners are documenting what they do in line with their professional standards so that they can have conversations with their supervisors at the moment where they're writing clinical notes as I would and as others would in order to deliver a service, I don't think that the duty to consider provides much of an additional burden. I think that the concern is and I understand why the code of practice is written in the legal way is at the moment but the way it's currently written feels as though we would be held to legal evidential standards for everything that we write rather than actually we've documented the situation, the things we've discussed with the child and family, what we think the next steps are and who else we need to involve. If it moves on from that to being something that has to be as we would see testable in court standard that's the bit where it moves from being good practice to being an additional bureaucratic burden. It is a duty to consider so you do have to give evidence that you've considered it and you would also have to know in what circumstances that duty applies. There isn't any getting away from that but I wonder if you think that that is, in your words, getting away if you're doing what makes perfect sense to me is looking at a situation, identifying who you need to speak to to highlight concerns, presumably there are circumstances in which the conflict I mentioned in the earlier panel, there's a conflict between the interest of the child and practice of the parent and what the parent is doing. Those things are very heavily documented at the moment because they're the sort of complex professional judgments that people want to talk to their professional supervisor about, they want to talk to their line manager about in order to get additional help. My understanding is that you can have a code of practice that is for the purposes of providing additional evidence and support to lawyers and to government, I guess, in terms of how the bill is enacted but when we talk about codes of practice we tend to say how does this legislation turn into something we can use to help children and families. Currently the code of practice is written to help lawyers and I understand why that is but what I think we're all saying is there can't be a division between the things that are written to help lawyers and help government enact the legislation and the things that we need to do our job, they have to be perfectly aligned and currently they're not quite there yet. The purpose of the code of practice is to identify how you fulfil your duty under the legislation. It isn't about defining good practice in what we would normally expect, it's the obligation and I wonder if that is the thing that's going to get you in the road of good practice because you're facing, it is a legal test that you're facing. I think that my answer would be proportionality and it's particularly maybe important that the guidance has that. So imagine a health visitor comes in and says, oh you kids are a wee bit slow speaking, I'm going to refer you to the speech and language therapist while 95 per cent of the time a parent will be saying oh wonderful I'm just so pleased thank you so much. The difficulty comes where the parent says oh speech and language therapists I think they're total cracks they're a waste of time. So does that make sense? I think that the there has to be proportionality I think once you're into child protection the difficulty is that there's a whole spectrum here from wellbeing where most parents want the wellbeing of the child and there's no contention at all with professionals and that's the case 95 per cent of the time. The challenge comes distinguishing what I would call is idiosyncratic parenting from poor parenting or harmful parenting and it's a sort of gradient across that and how one proportionately demonstrates in those situations how one has considered the needs of the child the need to communicate with other professionals in relation to that need and the varying extent to which that would be documented. Okay thank you Daniel did you want to come in and ask you? Just on that point I mean just given that it's wellbeing that is considered under this and to your point there I mean the scenario indices you know in particular you know things like included and achieving I mean surely that actually brings the scope of what might be a you know difference of opinion much more squarely into this perhaps more than the 5 per cent you know so for example one one parent thinks that a child should be speaking up all the time and the other person parent might think you know children should listen first and then speak I'm not saying that we bring it you know in the flag but I'm just saying that it's sort of an example for the but you could see how that could lead to consequences and I'm just wondering how much of concern that is for you I think the aspiration of Scottish Government is you know I'm 100 per cent behind you know we want our children to do well we want to be able to have that holistic assessment of the child and to push forward every boundary of that child's wellbeing my academic challenge is that scenario has not been through as far as I'm aware some test of its sensitivity and specificity to use those technical terms and that that then raises questions over its differential its capacity to differentiate uh in such circumstances so for example I'll give you a crazy example you know so let's say um you've got Johnny's a seven year old his dad died trying to blaze a new route up the uh Mount Everest and he fosered a tree and has a hairline fraction his arm and he sent a wee form to the to the name person Johnny fell out of a tree and the social worker goes and speaks to to Johnny's mum and says you know I think you need to be careful about Johnny claiming etc mum says Johnny's going to do what his father couldn't do and blaze this trail up Mount Everest you've got a very idysyncratic parenting there where slightly dangerous activity is very highly valued you know climbing up Everest you could stay in terms of early prevention it's probably a latent phase that child is probably going to do a lot of dangerous climbing in the future you could say there's a higher risk that that child will eventually die of trying to do some mountaineering stuff do you have an effective intervention in that situation and is the parenting poor parenting to the level that one should intervene there are a whole bunch of complex questions in in an example such as that it's very helpful hypothetical thank you although I don't think any of us have got the answer to that question thank you very much Colin it's also inevitability nowadays if you're dealing with the public at some point there'll be a complaint do you think that for health organisations there should be a specific complaint procedure required for the name person service or do you think that the existing remit of the SPSO is adequate would anybody like to respond to that speaking as an individual I couldn't see any need to have another complaint system but that is me speaking as as an individual does the SPSO work as well as it should in this regard from your experience if you have any again I mean giving an independent an individual view but I think there are whether a complaint is of nature a or b or c as long as complaints processes can flex across all such situations I think there are more dangers in creating an alternative mechanism than sticking to established mechanisms just moving just to touch a little bit on consent which I know has already been discussed how is it best to ensure that the consent that you receive is explicit and is easy to withdraw as it is to give does the mechanism already exist for that does more work need to be done on that what's your experience of it because I can imagine a situation where a parent might withdraw that consent how do you deal with that what's the process sorry do you do you mean specifically in relation to name person in relation to name person but it might also reflect on your current process as I said I'm not practitioner so I'm not a clinician delivering care in that sense but just in relation to name person when it comes to what you've mentioned there about withdrawing consent it's quite clear that name person service that the children and their family are under no obligation to engage with it if they do not want to or if they feel they've changed their minds about it that that is really clear from GERFEC they have said that so by GERFEC's guidance on this there should be no problem if they withdraw consent and it's within the confines of name person and it hasn't crossed over into child protection but would the mechanism be because you've already said that your consent is not always in writing sometimes it's implied sometimes it's consensual how would you do that well imagine that's why there's a need for robust guidance around this no matter what happens if it does go forward as best practice or something happens with the bill where it gets to final stages either way there'll need to be robust guidance that would outline that very clearly to the practitioner the point being though is that they would need to be absolutely aware that this is not an obligation on their part to take part in this name person service and at any point that they want to end it they can that's what GERFEC the GERFEC team have said that's what they'll need to do when they bring this forward for actual implementation I just wanted to mention briefly a cul-de-cot's been mentioned before and as Alison saw I'm a cul-de-cot guardian for NHS Highland and this is an area of quite a lot of work on going so dimfio and a cul-de-cot has produced three reports over the last decade and more the most recent one is national data guardian for health and care review of data security consent and opt-outs which was produced last year by her and it's considering these issues in relation to health and she just again doesn't provide total answers she has a recommendation 11 that there should be new consent and opt-out models allow people to opt out of their personal confidential data being used for purposes beyond their direct care so I'm trying to say this is a bubbling area in relation to all of care and the new European legislation that is coming into play in that replaces the data protection act. I think it always will be developing at one level the technology is just changing so fast and I think it's partly the technological changes you know cloud storage of data and all these issues that are an ongoing changing scenario I think it will always be a dynamic area. Thank you very much. Just one last question the issue of guidance has come up quite a lot from I think probably everybody and the committee had done a survey to local authorities and health authorities and over three quarters of them agreed the same that should be further guidance provided by their organisation about when information could be shared and I know that Perth and Cronross have got a child protection committee has anybody got any idea of the best we are trying to take some of the best practice or looked at the Perth and Cronross example or other examples of how guidance has been getting rolled out I mean I accept that I said to stop given where we are just now but the fact that that was in place so in in terms of the existing situation we looked at Perth and Cronross before we as our data sharing partnership developed guidance in this in this area so we have multi agency child protection guidance we have guidance for persons caring with caring for for adults who's whose children are vulnerable and similarly with with adults there is an overarching agreement between agencies and then there are individual agreements for the purposes of delivering particular services that we can then say to in this situation children and families this is this is how we do our business this is what the team around the child looks like and in the situation of withdrawing consent for a particular agency that that person wouldn't be part of the team around the child for that person and everybody else would just have to fill in really so in practice that's that we wouldn't see that shape see that changing and would see that the idea of the named person as being a strengthening of that and perhaps less confusion in complex situations so that there are the possibilities of organisations being able to roll out guidance once it becomes available I think some organizations have they have they have the infrastructure in place not all yeah okay listen thank you very much for that that brings us to an end of this session and I want to thank you all for your evidence that really was very helpful thank you and I now formally close this public part of this meeting thank you