The Surrey NHS Carers Prescription

Guidance for staff referring young carers

If you are referring a young carer to service you may need parental consent. Below is guidance about this issue.
Age 16+ Can give own consent if judges to have sufficent capacity
Legal Basis - Data protection Act 1998  Schedule 2 Condition 1 - consent
Useful links - Consent What you have the right to expect
Age 12 - 16 May be appropiate for children of this age to give consent and for parental consent not to be required if the child is judged to have sufficient capacity (e.g. Gillick/ Fraser competencies). However parental consent should be sought unless there are safeguarding issues.
Legal Basis - Data Protection Act 1998 
Schedule2 Condition 1 Consent 
Schedule 3 Condition 1 Consent
Age Under 12  Children of this age are unlikely to demonstrate sufficent capacity and therefore parental consent should be sought unless there are safeguarding concerns.
Legal Basis - Safeguarding Data Protection Act 1998
Schedule 2 Condition 4
Schedule 3 Condition 3  (Vital interests)
Q) Can you over turn decision of parents not to provide consent?  
A) This will depend on what the consent was for and the purpose of data processing:  
·     If the disclosure is required for safeguarding reasons this will be lawful as meets requirements of DPA98 Schedule 2, condition 4 and Schedule 3, condition 3 as the processing is required to ‘protect vital interests of data subject’

·     If the disclosure is required for medical purposes (NB - DPA states “medical purposes” includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of healthcare services) and is carried out by “(a) a health professional, or (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional”  the processing should meet requirements of Schedule 2, 6(1) and Schedule 3, Condition 8 – so arguably in cases where referral is to a health and social care organisation (e.g. provider of Local Authority/NHS funded services it may be appropriate for a School Nurse to make referral in absence of consent if they are judged to be able to make this decision (this may bring in issue of whether they are qualified or not)
·         If the disclosure is for non-medical reasons then there is unlikely to be a valid legal basis for a School Nurse to over-turn parents decisions, unless this would lead to increased risk of harm for the child in which case the safeguarding guidance applies.  

Q) What consent is required?
A) I have mapped out the data flows for the ‘young carers’ school nurse project’  as I understand it and wanted to confirm exactly what consent you would be seeking:

1.    Consent for school to process data (e.g. hold this and transfer data to Action for Carers’ Surrey) gathered by School Nurse – will any of the data gathered be retained by the school for their own purposes?  

2.    Consent for Action for Carers’ Surrey to process data (e.g. hold this, process to make appropriate referral, and transfer to service provider) – will this also be sought at start of process by School Nurse?  

3.    Consent for the Carer to actually receive any support assessed as being appropriate – is this consent actually sought by Action for Carers’ after referral reviewed by them?  

Q) Collecting data about third parties (e.g. the cared for person)
Unless they lack capacity, the cared for should provide consent for the processing of data that relates to them.  As discussed previously, there are various ways we can cover of this issue:

·         Seek consent from the cared for person for any data relating to them – this would of course take up resources and lead to longer referral time

·         Get the carer to confirm via tick box that they have the consent from the cared for their data to be processed – whilst you are relying on someone else confirming consent this is probably
reasonable in the circumstances and as long as the data gathered is not too detailed or sensitive

·         Make the data about the carer rather than the cared for – e.g. What is the nature of the care you provide?  Then perhaps give a range of options for Carer to respond with, including prefer not to say option ideally.  Also you could gather data on how many hours care provided.    
Like you I am slightly concerned about the amount of personal data which is not about the carer which is requested within the current Referral Information Form and I would challenge whether this is really required in order to fulfill purpose (i.e. arrange appropriate referral to support organisation).   I would also challenge whether the identity of the cared for is really required for an appropriate referral to be made, though will accept that if its parents then needs likely to be greater.  I would recommend you work with the service providers to develop a detailed list of exactly what info relating to carer/cared for is required and detail the justification for this being required.