Professional Documents
Culture Documents
As indicated in the course outline this session will cover the following topics:
• the Scottish legal system
• human rights
• confidentiality and data protection
• discrimination
• local authority social work services and the regulatory framework for these
The first four of these are covered in the reading below, the final topic will be covered in
class. In addition, the class will discuss the answers to the questions which you have
prepared and also look at some other questions on the topics listed above.
You should read this document and also the other reading set out below and in the course
document.
Questions
1. Read Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ
13751 (available here). In a paragraph each briefly explain:
• what the background to this case was;
• what the court decided and why; and
• what you would write if asked to explain the possible implications of this case for
social work practice.
2. Read R (Boyejo) v Barnet London Borough Council [2009] EWHC 3261 (Admin)
(available here) . In a paragraph (or less) each briefly explain:
• what the background to this case was;
• what the court decided and why;
• what you would write if asked to explain the possible implications of this case for
social work practice; and
• what influence this case might have if a similar dispute arose in Scotland.
1 The citation here is in the form explained in Chapter 7 “Social Work and the Law” in Wilson, Kate;
Ruch, Gillian; Lymbery, Mark and Cooper, Andrew et al, (2009) Social work: An introduction to
contemporary practice.
1
SECTION A – THE SCOTTISH LEGAL SYSTEM
2 E.g. there is no crime of manslaughter in Scotland (it is culpable homicide) nor is there breaking and
entering in Scotland, this is theft by housebreaking.
2
Area Scottish Provision E & W provision Similarities/differences
Mental Mental Health (Care and Mental Health Act 1983 Significant differences in content, processes and terminology. For
Health Treatment (Scotland) Act 2003 example there is no set of principles set out in the 1983 Act,
instead these are in a Code of Practice and nearest relatives can
still make applications for detention.
Adults with Adults with Incapacity (Scotland) Mental Capacity Act Significant differences in content, processes and terminology. For
Incapacity Act 200 2005 example the 2005 Act contains safeguards relating to deprivation
of liberty not found in the 2000 Act and the appointees able to take
decisions on behalf of adults are described in the 2005 Act as
‘deputies.’
Looked after Children (Scotland) Act 1995, ss Children Act 1989, ss 22 Some similarities, but also some differences
children 16 & 17 & 23
Emergency Children (Scotland) Act 1995, s Children Act 1989, s 43 Similarities in grounds for action and making of orders, but
protection of 55 (Child Assessment Order (CAO) & s 44 differences in procedure in obtaining order and subsequent to
children (CAO)) & s 57 (Child Protection (Emergency Protection granting of order
Order) Order)
Children in Children (Scotland) Act 1995 Children Act 1989 Procedures entirely different, in E & W application made to court
need of for care order or supervision order, limited court involvement in
compulsory Scotland (aside from determining existence of grounds of referral
measures & appeals) – dealt with by children’s hearings
Children in Children(Scotland) Act 1995, s Children Act 1989, s 17 Very similar, though powers in E & W set out more fully in
need 22 schedule 2 of 1989 Act
Aftercare Children (Scotland) Act 1995, ss Children Act 1989, ss Similar, but not identical
29-30 (& regulations) 23A – 24D
Free Community Care and Health No equivalent
personal (Scotland) Act 2002
care
Community Social Work (Scotland) Act 1968 NHS & Community Care Provisions virtually identical except that statutory basis in Scotland
Care & Chronically Sick and Disabled Act 1990 & Chronically is slightly different (1990 Act inserted new provisions, e.g. section
Assessments Persons Act 1970 Sick and Disabled 12A into 1968 Act)
& services Persons Act 1970
Adult Adult Support and Protection No equivalent
Protection (Scotland) Act 2007
Vulnerable Protection of Vulnerable Groups Safeguarding Following from Bichard Report these provide for vetting and
adults (Scotland) Act 2007 Vulnerable Groups Act barring of people working with children and other vulnerable
2006 groups – procedures and administrative bodies differ between
Scotland and E & W.
3
2 Application of Legal Rules
Legal rules and that is that they are not self applying. In other words, legal rules have to
be put into action by individuals and organisations. This has two consequences:
• these individuals and organisations have to interpret the law; and
• they also have to interpret the world to decide whether the circumstances they see
are circumstances to which a particular legal rule applies - for example, are the
circumstances of a child’s life such as to qualify him/her as a ‘child in need’ in
terms of the Children (Scotland) Act 1995?
This means that there is discretion in applying the legal rules, individuals and
organisations can decide both how to apply the law and also when to apply it.
3 Divisions of law
Criminal law is concerned with the punishment of individuals for infringing the rules of
conduct set out for them in the criminal law, civil law covers almost everything else,
including disputes between individuals and the children’s hearing system. Public law is
largely concerned with the operation of public bodies, e.g. local authorities, whereas
private law concerns the activities of individuals (including legally constructed
‘individuals’ such as companies) and their relationships with each other.
Supreme Court
(appeals only)
Sheriff Principal
(appeals only)
Sheriff
deals with most of cases
exclusive jurisdiction less than £5000 and evictions
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4.1 Civil Courts
Sheriff Court
Scotland is divided into 6 geographical sheriffdoms,3 and 5 of these (the exception is
Glasgow and Strathkelvin) are subdivided into sheriff court districts in each of which
there will be a sheriff court. There is a sheriff principal in each sheriffdom who has
administrative responsibilities for the operation of the courts in the sheriffdom and also
hears appeals from the decisions of sheriffs. Almost all civil cases are dealt with in the
sheriff court. These include debt actions (which must be raised in the sheriff court where
the debt is less than £5000), divorce proceedings, adoptions, eviction actions (which also
can only take place in the sheriff court), proceedings related to children’s hearings
applications for guardianship and intervention orders under the Adults with Incapacity
(Scotland) Act 2000 and appeals against decisions of the Mental Health Tribunal.
Court of Session
The Court of Session is based in Edinburgh. It has two parts. The Outer House is what
is described as a court of first instance, in other words it is the court which first hears and
decides cases, and is presided over by a single judge. The Inner House is divided into
two divisions, the first division and the second division, and usually sits as a court of
three judges to deal with appeals from the sheriff court, the sheriff principal or the Outer
House.
Supreme Court
This operates only as a court of appeal. In cases originating in the sheriff court the
appeal must be concerned with a question of law rather than a factual dispute. It
replaced the House of Lords as the final appeal court in October 2009.
To start the action the pursuer (i.e. the person raising the action) completes a summons,
which in small claims is a pre-printed form. The summons is returned to the court where
it will be served on (i.e. sent to) the defender (i.e. the person against whom the action is
raised) by the sheriff clerk. The form of the summons and subsequent procedure depends
on whether the action is one for payment or not.
In the case of actions for payment, the summons will contain a return date and a hearing
3 These are: Glasgow and Strathkelvin; Edinburgh, Lothian and Borders; South Strathclyde, Dumfries and
Galloway; Grampian, Highlands and Islands; Tayside, Central and Fife; and, North Strathclyde.
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date. The return date is the date by which the defender must indicate either whether
he/she intends to defend the action raised against them or to offer to pay the debt, either
in full or in instalments. If no reply is received by the return date, the pursuer can simply
minute for decree (i.e. ask the court to grant a judgement in their favour) in his/her favour
using the appropriate form provided by the sheriff clerk, and does not require to attend
court. If an offer to make payment is received, the pursuer can minute for decree in
terms of the offer, e.g. a decree requiring the defender to pay off the amount owed at £15
per week. If a response is received indicating that the defender intends to defend the
action or to appear at the hearing, or the offer is unacceptable, the case will call in court
on the hearing date, and the parties should attend. The matter may be disposed of at the
hearing, or it may be necessary to continue the action for a full hearing at which
witnesses could be heard.
In the case of other types of action, the summons simply specifies a hearing date, and
procedure is as for payment actions at that stage.
In all cases, there is no legal aid available to pay for a solicitor to represent the parties in
court, but they may be represented by someone at all stages of the process. Where that
person is not a solicitor, the sheriff must be satisfied that the 'person is a suitable person
to represent the party'. Appeal is available on a point of law to the Sheriff Principal, but
no further.
The procedure is similar to that involved in small claims actions, with five main
differences:
a) the summons, still in the nature of a pre-printed form, must be served either by a
solicitor or a sheriff officer;
b) the terminology is slightly different, the hearing date is the 'calling date', the full
hearing a 'proof';
c) legal aid is available to pay for representation;
d) a party may only be represented by someone other than a solicitor at the hearing
on the calling date; and,
e) it is possible to appeal, on a point of law, to the Sheriff Principal and then to the
Inner House of the Court of Session.
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by instalments,
4.3.1 Attachment
There are two types of attachment, depending on whether the goods to be attached are
found in a dwellinghouse or not. If they are not the process involves three stages. First, a
charge (or demand for payment) will be served on the debtor, before doing this the debtor
must be provided with a debt advice and information package. Second, if payment of the
debt is still not made, an attachment will take place. This involves the listing and
valuation of the debtor's possessions. There is a short list of items excluded from
attachment (which therefore cannot be sold by a creditor) which consists mainly of tools
of the trade. The debtor can seek to have individual items removed from the attachment.
The debtor can also redeem items which have been attached by paying the value given to
them. The final stage is sale of the possessions by auction. Any goods not sold are
passed to the creditor and the debtor is credited with the value given to them when they
were listed plus the sum raised by the sale.
4.3.2 Arrestment
This can be either an ordinary arrestment or arrestment of earnings, where a sum is
deducted from earnings and paid over direct to the creditor. This second procedure can be
used either for ordinary debts or to ensure that maintenance payments are made to a
partner or child. An ordinary arrestment involves freezing assets belonging to the debtor
which are, at the timer of the arrestment, in the hands of a third party. An example of this
is freezing a bank account. The assets (money) belong to the debtor but are in the hands
of a third party (the bank). In order to get the money released the creditor must raise a
separate action of furthcoming.
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agreement of all of the creditors (though creditors who do not respond will be treated as
having agreed), though the Administrator (who is a civil servant) has the power to
dispense with the consent of creditors in certain circumstances. Where a creditor or
creditors object to the proposed payment programme the Administrator can apply to the
sheriff, who has power to approve the programme. In general, regardless of the approval
process, the programme can only be approved if it is fair and reasonable. In deciding
this, the following factors will be relevant: the total debt, the period of repayment, the
comments of the money adviser, the extent of creditors consent and the availability of an
asset (for example a house or car) which could be sold to repay the debt.
Once the programme is approved the debtor (or the debtor’s employer) will make
payments to a payment distributor, who will then distribute the money to creditors as
provided for by the programme. Once the programme is approved creditors cannot carry
out any diligence against the debtor, nor, in general must they offer the debtor more
credit. The debtor also is subject to certain restrictions, they must:
(a) make all payments under a programme as they fall due;
(b) pay a continuing liability when due for payment, continuing liabilities include
rent/mortgage payments, utilities bills and hire purchase instalments;
(c) except for a continuing liability, make no payment to a creditor taking part in a
programme other than a payment under the programme;
(d) except under limited circumstances, not apply for or obtain credit ;
(e) notify the money adviser for a programme of a change of address or material
change of circumstances; and
(f) within 10 days after receipt by the debtor of a written request from the money
adviser for the programme, supply the adviser with such information or evidence
as the adviser may request in respect of the income, assets or liabilities of the
debtor
It is possible to apply for the programme to be amended, and once completed the money
adviser must be told by the payment distributor and must in turn inform the DAS
Administrator.
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5 The Criminal Court System
* It is possible for devolution issues raised in criminal cases to be further referred to the
Supreme Court
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Sheriff Summary Court
Based on the same structure as the sheriff civil court and dealing with a similar
proportion of cases to the District Court. The sheriff sits alone and decides on both guilt
and on sentence. The maximum sentences available are imprisonment for 12 months or a
fine of up to £10,000.
6 Tribunals
Tribunals differ from courts in that they are usually composed either wholly or in a
majority of people who are not legally qualified. They take place in a more informal (at
least in theory) setting than the formal setting of a court room and the procedures which
they adopt are, in most cases, more relaxed and informal than those found in a court and
(again in theory) make it easier for a member of the public to argue their case without
legal or other representation. Examples of tribunals are the Children’s Hearings system
(made up entirely of lay members), Employment Tribunals (involving employer and
employee representatives), the Mental Health Tribunal for Scotland and a large variety of
benefits tribunals (which often have a legally qualified chair). Tribunals were set up for a
number of reasons, partly to take pressure off the court system, partly to allow people
with expertise in a particular area to be brought in to take decisions and partly to provide
an arena which would be less intimidating than a court and which would allow people a
better chance to make their own case. Usually it will be possible to appeal against a
decision taken by a tribunal and, at some stage, there is usually a right of appeal to a
court, for example the right of appeal from a children’s hearing or from a Mental Health
Tribunal to the sheriff court.
7 European Courts
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7.2 European Court of Justice
This is the principal judicial body of the European Union and can be referred to for
authoritative interpretation of legal rules which originate within the European Union.
8 Sources of Law
8.1 Legislation
Legislation describes the rules which are deliberately made by a body, such as the
Scottish Parliament, which has the power to make law. Proposed legislation, either in the
form of an Act of Parliament or delegated legislation, will often be preceded by a public
consultation on a draft of this legislation, one recent example is the Scottish Government
consultation on the Looked After Children Regulations. 4 In other cases legislation will
follow from a report ordered by the government to which the public have had a chance to
give evidence5 or will follow on from a report by the Scottish Law Commission which
will have included in its production public consultation.6
8.1.1 European Legislation Because of the basis of the European Union, most rules are
concerned with trade and free movement of goods. There are some exceptions, however,
for example in the field of employment law and data protection. The two most common
types of legislation are directives, which require member states to change their domestic
law in line with the terms of the directive, and regulations which directly form part of the
law of member states.
8.1.2 Pre-1707 and post-1999 Scottish Legislation (Acts of the Scottish Parliament)
There are still some pieces of legislation made by the pre-1707 Scottish parliament in
force. One example is the Leases Act 1449.
8.1.4 Coming into effect of legislation Once legislation is passed by a parliament it does
not always immediately become part of the law of Scotland. This depends on when it is
brought into force, and the date on which an Act comes into force is known as the
commencement date. A recent example is the Adult Support and Protection (Scotland)
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Act 2007 which did not come fully into force until October 2008. Dates of
commencement are often fixed by ministers using delegated legislation, and different
dates can be set for different parts of the same Act, as happened with the Antisocial
Behaviour etc. (Scotland) Act 2004.
8.1.5 Amendment of legislation Acts of Parliament and other pieces of legislation rarely
stay the same. As time passes they will be added to, subtracted from and otherwise
changed by amendments contained in later legislation. For example, the Social Work
(Scotland) Act 1968 in the form in which it exists today contains virtually no provision
which has remained unchanged in the period since 1968. Legislation is, therefore, in a
state of constant change and knowledge of legislation needs to be frequently updated. As
an example compare the provisions of section 12(2) of the Social Work (Scotland) Act
1968 set out below:
8.1.6 Delegated legislation (e.g., Looked after Children (Scotland) Regulations 2009,
SSI 2009/210). Acts of Parliament often contain provisions which delegate the power to
make rules to ministers. This is often done because the detailed rules require consultation
with interested bodies, because of the length and complexity of these rules, because of
their technical nature,7or because the matters covered by the rules might need to be
changed frequently and changing delegated legislation is usually a more straightforward
ask than amending an Act. One example of legislation which is accompanied by a large
amount of delegated legislation is the Children (Scotland) Act 1995. There are rules
made by ministers covering looked after children and their placement, procedure at
children’s hearings, and use of secure accommodation. It should be noted that although
this delegated legislation (sometimes also described as secondary legislation (with Acts
as the primary legislation)) is made by ministers it has the same legal force as other
legislation. Most delegated legislation takes the form of statutory instruments (SIs) (or,
7 For example the Purity Criteria for Colours, Sweeteners and Miscellaneous Food Additives (Scotland)
Regulations 2009 (SSI 2009/167).
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in the Scottish context, Scottish statutory instruments (SSIs). In general statutory
instruments do not require parliamentary approval before becoming law, though they may
be subject to annulment by resolution of Parliament (for example SSIs made under the
Social Work (Scotland) Act 1968). In some cases, however, parliamentary approval is
required, examples are regulations on charging for personal care8 and certain regulations
made under the Mental Health (Care and Treatment)(Scotland) Act 2003, for example
regulations adding to the list of measure which may form part of a Compulsory
Treatment Order.9
8.1.7 Problems of interpretation Because legislation uses written language it can give
rise to ambiguity or problems of interpretation. In some cases the ambiguity will be
deliberate in order to to allow individuals and organizations to exercise a judgement, for
example there might be a reference to what is ‘reasonably practicable’ or to having
‘reasonable grounds to believe’. In other cases the ambiguity or vagueness will simply
be a byproduct of language. One example is the dispute over whether Jaffa Cakes fell
into the legal category of cakes or of biscuits.10 Another example is from the Children
(Scotland) Act 1995 which refers to a child who is a member of the same household as
another child. Clearly this could have a variety of meanings, for example it might be
argued that for two children to be in the same household they must live in the same place.
Alternatively it could be suggested that children will be in the same household if they
would normally be expected to live together, even if that is not the current position, e.g.
because one child is in foster care. Finally, it might be argued that membership of the
same household simply involves the sharing of siblings and parents and that it is not
actually necessary for the two children sharing the same household in this sense to be
alive at the same time.
What is it that is binding? - the ratio decidendi, in other words the reason or principle
underlying the decision of the earlier court.
Historically precedent was an important source of law in its own right, and many areas of
law are still based on the rules developed by courts with very little statutory intervention,
one example is the law relating to liability for negligence. Perhaps more importantly
today, certainly in the area of law relating to social work practice, is the role of courts in
providing authoritative interpretations of statutes and delegated legislation. This extends
beyond UK legislation to the European Convention on Human Rights, where the courts
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have played a significant role in developing and putting detail on the general rights
conferred by the Convention.
8.3 Circulars/Guidance
The Scottish Executive frequently issues guidance to local authorities on a wide range of
issues, recent examples relevant to social work include guidance on the operation of
Child Protection Committees, Single Shared Assessments, Pathway Planning and on
Local Authority Accountability under the Antisocial Behaviour etc. (Scotland) Act 2004.
Unlike delegated legislation, this guidance does not have the force of law, though
whether a local authority has complied with guidance may be a relevant issue if its
decision-making is challenged by judicial review.11
9 Legal Personnel
Advocates specialise in court appearance and in giving advice on complex matters of law.
Advocates have no direct contact or relationship with their ultimate client: the
relationship is managed by the client's solicitors. Historically, advocates had an exclusive
right to appear in the higher courts (that is the High Court, the Court of Session and
the Supreme Court) but there are now provisions to allow solicitors to appear in these
courts. Solicitor-advocates, as these are described, are solicitors who have passed a test
of competence and fulfilled certain other requirements to allow them to represent
people in the High Court or in the Court of Session. Complaints about members of the
legal profession in Scotland are dealt with through the Scottish Legal Complaints
Commission.
11 For example, a challenge was successful in R v North Yorkshire Council, ex p Hargreaves ((1994) 26
BMLR 121) on the grounds that the social worker carrying out a community care assessment had failed to
involve the service user fully enough as required by the relevant guidance.
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the Law Officers. Advocates Depute are advocates who are appointed to the position
usually for a relatively short period of time. Solicitor-advocates and senior members of
the fiscal service may now also be appointed to act as Crown Counsel. In practice, most
of the work in the prosecution system is done by procurators fiscal and procurators
fiscal depute who are the local representatives of the public prosecution service. These
are full-time permanent civil servants and there will be a procurator fiscal in each
sheriff court. The administration of the system of prosecution is the responsibility of the
Crown Office Procurator Fiscal Service.
As well as being a prosecutor the fiscal is also responsible for investigating all sudden and
suspicious deaths and suicides.
9.3 Judges
Justice of the Peace (JP) courts are presided over by one or more lay justices. They will be
guided as to the law by a legal assessor or by the clerk to the court. The practice as to the
number of justices sitting to hear a case and the source of legal guidance varies between
different areas. There are also, in Glasgow, a number of stipendiary magistrates. These
magistrates are legally qualified and sit alone to hear cases. They have greater sentencing
powers than JPs. Sheriff courts are staffed by sheriffs who are legally qualified, most having
been advocates. Finally, there are the judges who preside both in the Court of Session and
in the High Court. They are all legally qualified and are variously described as Lords of
Session, Lord Commissioners of Justiciary and Senators of the College of Justice. How
they are described depends on which role they are fulfilling.
9.6 Miscellaneous
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As well as those noted above there is a variety of other people involved in the operation of
the court system. These include ushers and bar officers who assist in the actual
functioning of the courts, directing people to the right court and maintaining order in
court.
The rights conferred by the European Convention will be considered more fully in the
context of consideration of substantive law later in this course, but there are some general
points which set the context for consideration of individual rights. Rights conferred by
the Convention may be absolute or qualified. An example of an absolute provision is the
prohibition on torture contained in Article 3 of the Convention. In contrast, other
provisions envisage a balancing of rights. For example Article 8 provides that everyone
has the right to ‘respect for his private and family life, his home and his correspondence’.
It then goes on to provide, however, that these rights may be interfered with provided that
this interference is in accordance with the law and is necessary in a democratic society to
achieve one of a number of objectives, for example the protection of the rights and
freedoms of others. In addition, some of the rights are expressed in such a way as to
prohibit certain types of behaviour. For example, Article 3 mentioned above provides
that; ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or
punishment.’ On the face of it this would seem to impose only a negative obligation on
12 One example is McMichael v United Kingdom ((1995) 20 E.H.R.R. 205) which concerned procedures
relating to children’s hearings. The complaint was made in 1989 and a decision made by the court in 1995.
13 A public authority includes, as well as courts and tribunals, ‘any person certain of whose functions are
functions of a public nature’, Human Rights Act 1998, s 6(3)(b). The definition has been extended to
include private sector providers of accommodation of accommodation, together with nursing, personal care
or personal support, as a care home service where this accommodation is provided by arrangement with a
local authority, Health and Social Care Act 2008, s 145. This extension was to avoid perceived unfairness
in that decisions of local authorities about care homes (for example closure) could be challenged under the
Human Rights Act, but those of private providers could not, se L v Birmingham City Council [2007] UKHL
27.
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public bodies not to subject people to such forms of treatment. However, the Court has
taken the view that such obligations go beyond this and impose a positive obligation on
public bodies to act when they are (or should be) aware that people are being subjected
by others to such treatment, with the objective of such intervention being to bring the
treatment to an end.14
Finally, the main convention rights which are likely to be relevant to social work practice
are those set out in Articles 2, 3, 5, 6 and 8. These articles and examples of cases where
they have been applied are set out in the table on the next page.15
1 Introduction
Ethical and practice16 principles requiring the maintenance of confidentiality are
supplemented by a Code on Confidentiality of Social Work Records17 and by legal
requirements. The rights of access to information enjoyed by service users also include
limits which restrict what can be disclosed to them by the social work department.
The law imposes an obligation on an individual not to disclose information which was
passed on to him or her in confidence. This is the classic example of what is protected by
the legal action for breach of confidence and falls within the definition of breach of
confidence offered in Coco v A N Clark (Engineering) Ltd18 as involving information
which is of a confidential nature (in essence being private rather than public knowledge)
which is disclosed in circumstances importing an obligation of confidence. In many
instances information communicated to social workers by their clients will fall clearly
under this description, it must then be kept confidential subject to limits discussed below.
The law of confidentiality has now, however, gone beyond this, influenced in part by the
domestication of the European Convention on Human Rights by the Human Rights Act
1998. It now will protect information even in cases where it has not been disclosed in a
relationship of confidence, and it now appears to be the case that an individual is entitled
to prevent disclosure of certain information about him or herself regardless of the way in
which the person disclosing, or threatening to disclose, the information obtained it. The
scope of the information which can be protected is not, at the moment well defined. It
has been suggested that it covers information which is personal and private or in respect
of which there is a reasonable expectation of privacy.19
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Article
Qualified?
Text of Article Examples
2 Everyone’s right to life shall be protected by law. No one shall be Y Osman20: ‘…article 2 of the Convention may also imply in certain well-defined
deprived of his life intentionally save in the execution of a circumstances a positive obligation on the authorities to take preventive operational
sentence of a court following his conviction of a crime for which measures to protect an individual whose life is at risk from the criminal acts of another
this penalty is provided by law. individual.’
Savage:21 Duty to take steps to avoid risk of harm to suicidal detained patient because of
knowledge of immediate risk to her life.
3 No one shall be subjected to torture or to inhuman or degrading N Z:22 Duty to take action where local authority knew or should have known that treatment of
treatment or punishment. children amounted to inhuman and degrading treatment.
5 Everyone has the right to liberty and security of person. No one N JE:23 Placement of incapable adult in care home which not permitted to leave to stay
shall be deprived of his liberty save in the following cases and in elsewhere amounted to deprivation of liberty
accordance with a procedure prescribed by law: Koniarska:24 Placement of child in secure accommodation where she received (some)
(a) the lawful detention of a person after conviction by a education fell within paragraph (d) as being for the ‘purpose of educational supervision’ –
competent court;..... not restricted to school attendance
(d) the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
6 In the determination of his civil rights and obligations or of any Y25 S:26Lack of provision of legal aid for children’s hearings breached Art. 6.
criminal charge against him, everyone is entitled to a fair and McMichael:27Failure to provide parents with social background reports for children’s
public hearing within a reasonable time by an independent and hearing breached Art. 6.
impartial tribunal established by law.
8 Everyone has the right to respect for his private and family life, Y Bernard:28 Failure to provide suitable accommodation which meant that mobility impaired
his home and his correspondence. woman could not access toilet or leave room in which she slept breached Art. 8 rights.
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Regardless of the information covered, or of the basis for confidentiality, is clear that the
obligation not to disclose confidential information is not absolute. There is a number of
circumstances in which it will be permissible to disclose to others information which has
been disclosed in confidence. There are also circumstances in which there are obligations
to disclose information to appropriate individuals and authorities, examples of this
include the obligation to disclose information to a court if called as a witness29 and
information gathered in the course of preparation of a social enquiry report. Sometimes
there may be an expectation that information is shared between agencies, for example in
the context of child protection.30 In some circumstances, though they are likely to be
limited, there may be a positive legal duty to warn or take steps to protect an individual
who, on the basis of information disclosed in confidence, there is reason to believe is
likely to be harmed.31 The possibility that disclosure of confidential information may
take place is discussed in the SSSC Codes of Practice.32 In the BASW Code of Ethics it
is noted that information may be disclosed without the consent of the service user or of
the person providing the information where there is clear evidence of serious risk to the
service user, to a worker or to another person in the community or in other cases which
are judged on the basis of professional considerations and consultation to be
exceptional.33 Because of this possibility that the worker may determine that information
will be passed on to others (other than in the normal course of providing or arranging the
provision of services for a service user) it is important that there is clarity as between the
social worker and the service user as to the limits to confidentiality.
29 There is no professional privilege which covers communication between a social worker and his or her
client.
30 For example, City of Edinburgh Council. Report of the Death of Caleb Ness (2003), para 9.1.17. For a
discussion of information sharing see HM Government, Information sharing: Guidance for practitioners
and managers (2008).
31 See the discussion in Mitchell v Glasgow City Council [2009] UKHL 11, though no such duty was held
to arise in the circumstances of that case.
32 E.g. para 4.4: ‘Taking necessary steps to minimise the risks of service users from doing actual or
potential harm to themselves or other people.’
33 Para 4.1.1. See also the Code on Confidentiality, para 13.
34 Data Protection Act 1998, s 1.
35 Data Protection Act 1998, s 4 and Schs 1- 4.
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The person who is the subject of the information has the right to apply for access to it.
This includes children under 16, provided that they ‘have a general understanding of what
it means to exercise’ the access right.36 Children aged 12 or over are to be presumed to
have this understanding,37 otherwise it will be up to the person to whom the application is
made to make an assessment of the child’s understanding. Where a child is under 16 a
person who has parental responsibilities for the child can apply for access, but their rights
of access are limited as set out below. In general a request for access must be dealt with
within 40 days of the request being made.38
3 Access Rights
The access rights39 entitle the applicant to be told whether the organisation to which an
application is made holds any information on the applicant. If it does hold information
the applicant has a right to a description of the data, the purposes for which it is held, and
information as to people to whom it may be disclosed. Finally, the applicant has a right
to a copy of the information held in an intelligible form, as well as details of the source of
the information. If the social work department fails to comply with the requirements for
disclosure, or for non-disclosure on the grounds set out below, the individual affected by
this can take court action to enforce the local authority’s obligations.40
The right of access to social work records is not entirely unrestricted, and a number of
limits on the right of access apply.
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The second and third access rights set out above are restricted in certain circumstances
when the information to which access is sought is found in social work records.
Although these two access rights may not apply in a particular case, the first of these will
always apply and the applicant will be entitled to be told if the social work department
hold any information about him or her. The other two rights are restricted in that social
work records are not to be disclosed:
(a) Where disclosure would be likely to prejudice the carrying out of social work by
reason of the fact that serious harm to the physical or mental health or condition of
the applicant for access or any other person would be likely to be caused.46
(b) Where information is supplied to court by a social work department, the court may,
under a variety of statutory provisions, be entitled to withhold the information in
whole or in part, the effect of this is that the decision of a court to withhold
information cannot be bypassed by seeking direct access to the social work
record.47
(c) Information provided to the social work department by the Reporter can only be
disclosed if the Reporter certifies that the exception set out in (a) above does not
apply to the information.48
(d) Where an individual having parental responsibilities for someone under the age of
16 applies to see that person’s record, there are certain restrictions on the
information that can be disclosed to them. In particular information is not to be
disclosed where it was provided by the person under 16 in the expectation that it
would not be disclosed to the person making the request; where it resulted from an
examination or investigation of the person aged under 16 and he or she consented
to this in the expectation that the outcome would not be disclosed to the person
making the request; and, where the person aged under 16 has specifically indicated
that the information should not be disclosed. Examples of this would be where a
pregnancy test was agreed to in the expectation that the result would not be
communicated to a parent, or where a person aged under 16 specifically stated that
he or she did not want the whole or any part of the information about him or her
kept by the social work department to be disclosed to his or her mother.49 Similar
restrictions apply where an application is made by a guardian in respect of
information held about an adult with incapacity.50
Where information held by the social work department derives from a health professional
then it is not to be disclosed unless the appropriate health professional has been consulted
as to whether disclosure would be likely to cause serious harm to the physical or mental
health or condition of the person to whom the information elates or another person. 51 If
the health professional certifies that this is the case then the information is not to be
disclosed.52
46 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 5(1).
47 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 4 and Sch 1,
pt 2.
48 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 6.
49 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 5(3), (4).
50 DataProtection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 5(3), (4).
51 Data Protection (Subject Access Modification)(Health) Order 2000, SI 2000/413, art 6.
52 Data Protection (Subject Access Modification)(Health) Order 2000, SI 2000/413, art 7.
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4 Freedom of Information.
Application may also be made for access to information held by the social work
department under the Freedom of Information (Scotland) Act 2002. However, access to
social work records is likely to be limited by two of the exceptions to the right of access
created under the Act. The first exception is that the information which is being sought is
personal data. Such information will be exempt from disclosure either if the person
making the application for access is the subject of this personal data53 or, where the
applicant is not the subject of the data, if disclosure would either contravene the data
protection principles set out in the Data Protection Act 1998 or would be likely to cause
damage or distress or if the information is exempted from disclosure under the 1998
Act.54 A further exemption arises in respect of confidential information.55 Information
will be exempt if it was obtained from another person and its disclosure would constitute
an actionable breach of confidence. In two cases the Scottish Information Commissioner
has taken the view that relatives are not entitled to access to the social work records of a
deceased on this ground. The rationale for these decisions was that the reports in these
records were written using information from third parties, that the nature of the
information would give rise to an action for breach of confidence if it was disclosed and
that, in these cases, there was no public interest in disclosure.56
53 Who will, in any case, have a right of access under the Data Protection Act 1998. Freedom of
Information (Scotland) Act 2002, s 38(1)(a).
54 Freedom of Information (Scotland) Act 2002, ss 38(1)(b) & 38(2) & (3).
55 Freedom of Information (Scotland) Act 2002, s 36.
56 Decisions 165/2007 and 029/2008. In both cases the Commissioner seemed to make use of an outdated
analysis of breach of confidence (though this analysis is arguably implicit in the Act).
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APPENDIX
2 The following articles so far as they are reasonably required, at the time of the attachment, for
the use of the debtor or a member of the debtor's household-
(a) beds or bedding;
(b) household linen;
(c) chairs or settees;
(d) tables;
(e) food;
(f) lights or light fittings;
(g) heating appliances;
(h) curtains;
(i) floor coverings;
(j) furniture, equipment or utensils used for storing, cooking or eating food;
(k) refrigerators;
(l) articles used for cleaning, drying, mending, or pressing clothes;
(m) articles used for cleaning the dwellinghouse;
(n) furniture used for storing-
(i) clothing, bedding or household linen;
(ii) articles used for cleaning the dwellinghouse; or
(iii) utensils used for cooking or eating food;
(o) articles used for safety in the dwellinghouse;
(p) tools used for maintenance or repair of the dwellinghouse or of household articles;
(q) computers and accessory equipment;
(r) microwave ovens;
(s) radios;
(t) telephones;
(u) televisions.
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