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Governor training on confidentiality policies
Suggested answers in line with current legal & government advice
Scenario A
The school secretary is told by Pupil A that Pupil B is HIV positive. As far as the
school secretary knows no other staff member is aware Pupil B is HIV positive.
1. What actions should the staff member take?
If pupil B truly is HIV positive, the diagnosis will almost certainly have been made by
a health practitioner and the pupil will be receiving treatment to control the infection
and potentially limit the onset of AIDS. In diagnosing HIV, the health practitioner will
have explored the likelihood of a child protection issue and referral. The school
should already have Health & Safety policies which take into consideration that
someone on the school site may be HIV positive. A growing number of people are
living with HIV infection without it having too much impact on their lives for long
periods of time but the anti-viral drugs may cause side-effects of illness and those
infected may suffer periods of depression and anxiety. Due to public
misconceptions and prejudice, many infected by HIV/AIDS choose not to tell others
about their HIV status.
The government advice is that as a general rule you should treat all personal
information you acquire in the course of working with children as confidential as
there might be a common law duty of confidence as in this case. The approach to
confidential information should be the same whether any proposed disclosure is
internally within the school between staff or between external agencies (eg from a
teacher to a social worker). However, as the sharing of information between school
staff happens frequently it might be argued that pupils and parents expect
information which they disclose to one school staff member probably to be
disclosed to others unless they have asked for it not to be shared.
The Secretary is not required to do anything but they would probably check out how
Pupil A knows Pupil B is HIV positive. (Is it rumour? It might be a form of bullying.)
If Pupil A has asked the Secretary to keep the information confidential, she would
need to gain the consent from Pupil A if she is Fraser competent to pass on the
information to someone else (see below) unless she believes that Pupil B is at risk
of bullying by Pupil A or by other pupils. Even if Pupil A refuses to give consent to
the Secretary to pass on the information, the Secretary could be legally justified in
doing so as Pupil B is the subject of the information and the Secretary could keep
Pupil A’s identity anonymous.
It is not the Secretary’s role to directly question pupil B.
2. Who should be told?
The Secretary should discuss what they know with a senior member of the pastoral
care team but should otherwise treat the information confidentially.
3. Why do they need to be told?
The pastoral care staff member should treat the information confidentially but may
consider it appropriate to talk with Pupil B and to offer appropriate confidential
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support which might also include confidential conversations with Pupil B’s
parents/carers. With the agreement of the Pupil B if they are Fraser competent or
otherwise their parents, other staff members may be informed confidentially on a
need-to-know basis. Depending on the bullying and rumour-mongering, the school
may need to offer in-depth support to Pupil B and their family.
4. How and where will anything be recorded?
There is no reason for anything to be recorded although a school may choose to
record this information on a pupil’s confidential medical records. NB Once a pupil is
Fraser competent they are owed a common law duty of confidence and new
medical information should not be added without their consent.
5. What are the legal and child protection issues that might affect the scenario?
a. HIV is not a notifiable disease.
b. Barring someone with HIV/AIDS access to a public service (e.g. school)
would be illegal under Disability Discrimination Act.
c. HIV is a well known potential risk therefore school Health & Safety policies
and first aid arrangements should already take it into consideration along
with other blood-borne infections.
d. HIV infections are caused by the passing of infected blood, serum and
seminal fluid from one person to another. HIV infection may well have been
caused by blood transfusion or by a pupil’s mother being HIV positive during
pregnancy so there cannot be an assumption that it has been caused by
sexual activity which might be subject to Child Protection procedures.
e. The common law duty of confidence applies to everyone working with
children who become aware of personal information about pupils. When a
pupil is Fraser competent it should not be shared with others unless:
i. The pupil consents, or
ii. There is a child protection concern, or
iii. Disclosure is required under a court order or other legal obligation.
Scenario B
A boy in Year 10 is struggling with his work. He is upset and other pupils have been
calling him names. He tells his teacher that he thinks that he might be gay. He
doesn’t know who to speak to and wants to speak to someone about this.
1. What actions should the staff member take?
a. The staff member should support and reassure the boy. The teacher should
offer confidentiality but if they are to do something about the name-calling
they may need to explain the situation to other staff members and the boy
will need to agree to this.
b. The boy should be supported to access more information and to discuss his
sexuality – this may be through the school counsellor/nurse/Connexions PA
who can all offer a confidential service subject to the school policy as well as
links to appropriate specialist support services for young people around
sexuality if this is ultimately wanted.
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c. If the boy has not already discussed his worries with his parent(s)/carer(s)
then he might be encouraged and offered support to do so if the boy wishes.
2. Who should be told?
There is no need for anyone to necessarily be informed though the name-calling
may require the issue to be dealt with under the school’s bullying policy. (NB There
is guidance in the DfES publication about homophobic bullying, Stand up for us)
3. Why do they need to be told?
4. How and where will anything be recorded?
Nothing about the issue of his sexuality will be recorded unless in the confidential
notes of a school nurse/counsellor/Connexions PA if the boy becomes a client of
one of these services. School bullying policies may require incidents to be
recorded but this should be in a way that does not associate the individual with
concerns about his sexuality unless he consents. If the bullying were so serious as
to lead to permanent exclusion for the perpetrator(s) there would need to be a
consideration of what goes into this pupil’s witness statement since the excluded
pupil(s) and their parents would receive copies of such statements at any appeal
hearing.
5. What are the legal and child protection issues that might affect the scenario?
a. There are no apparent legal or child protection issues in this scenario unless
discussions reveal other issues to be a child protection concern – refer to the
Hampshire Area Child Protection Committee Interim Protocol on working with
young people under 18 on sexual issues.
b. Anti-discrimination legislation might be relevant in this case.
c. The Sexual Offences Act 2003 recognises that staff may give confidential
advice on sexuality to young people, promoting the child’s emotional wellbeing and deleted the former “Clause 28” which prevented schools from
“promoting” homosexuality.
d. Ofsted reported in 2003 that schools had much to do to remove homophobic
bullying.
Scenario C
A Year 11 pupil tells a member of the school staff that she had unprotected sex two
nights ago and she wants help to get emergency contraception but doesn’t want the
member of staff to tell her parents.
1. What actions should the staff member take?
a. The welfare of the young person is paramount. If she had unprotected sex
then she may become pregnant (which she has clearly indicated she does
not want) so she needs to access emergency contraception within 72 hours.
The efficacy of emergency contraception drops after about 48 hours so she
could be in the period of time when it really is very urgent that she gets the
contraception. In this case, it would strongly be suggested that she is
supported to get the contraception first and then move on to deal with the
other issues. Other staff members or agencies working on site may be able
to provide the practical support to the pupil to obtain the emergency
contraception. The pupil should be told whether these staff are able to offer
confidentiality (NB Child Protection issues over-ride anyone’s ability to offer
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absolute confidentiality.)
b. It depends on which staff member the pupil has told that she had
unprotected sex and whether she is 16+ as to whether the staff member
would have to “pass it up the line” for the school’s pastoral care managers to
make a decision whether the pupil’s parents are to be informed. If she told
the school counsellor/nurse/Connexions Personal Adviser, your policy may
give them more flexibility over confidentiality (unless it was a Child Protection
issue) which may be the very reason why she felt able to go to them and ask
for support. Staff in this position should always encourage and offer to
support the pupil to discuss the issue with her parent(s)/carer(s), particularly
if they are under 16.
c. Irrespective of which staff member she has told, they will now have to decide
whether they feel there is a possible Child Protection issue and if this is the
case will need to warn the pupil that they cannot hold confidentiality for this
reason but that they will support the pupil during the referral process.
d. The pupil also needs to be encouraged to access her local contraceptive and
sexual health service as she has had unprotected sex and may have been
exposed to a sexually transmitted infection. She may also be regularly
sexually active and need appropriate contraception to protect her from
unintended pregnancy. Advice on which type of contraception to use should
be given by health practitioners, not teachers.
2. Who should be told?
a. If the staff member is to transport her or escort her to where she can obtain
the emergency contraception then they will need to seek permission from
their line manager and to follow the school policy on transport of pupils. The
pupil will need to be told that this permission has to be sought but that things
will remain confidential between the staff member and their line manager at
this point. If she has to be supported/given permission to leave the school
site and access services elsewhere (eg pharmacy/surgery/A&E), then this
may have to be in lunch-time or her parents would need to be informed that
she has gone off-site during lessons but this depends on the school’s policy
and the age of the pupil. However, it would only be in exceptional
circumstances (where the school is acting in the best interests of the welfare
of the pupil) that it may directly provide transport to an off-site clinic or health
service. If the pupil is in a distressed and/or an emotional state, then she
should be accompanied if going off-site as allowing her to go off-site on her
own would not be in the best interests of the child. School nurses or
Connexions Personal Advisers may be able to provide support to visit health
services in some cases.
b. If she is under 16 the emergency contraception will only be given to her by a
health practitioner or pharmacist if she satisfies them that she is Fraser
competent and once they have run through their protocol for administering
the drug – the school is not administering the drug so does not have to
inform the parents. Any woman aged 16+ can purchase emergency
contraception from a pharmacist.
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c. The decision whether to inform the parents will depend upon the school’s
confidentiality policy, the age of the pupil and whether a decision has been
made to make a Child Protection referral – see above.
d. Depending on the school’s confidentiality policy and the role of the member
of staff approached by the pupil, the issue may need to be raised with one of
the school’s pastoral care managers.
e. The Child Protection Liaison Officer will need to be informed if is felt to be a
likely Child Protection referral.
3. Why do they need to be told?
The school’s confidentiality policy may require certain people to be informed and
the Child Protection procedures will require others to be informed.
It may be that the male sexual partner is also a school pupil and may want to be
supportive of her accessing emergency contraception. He may need to be involved
in discussions or to be counselled. However, his involvement in supporting her to
access emergency contraception remains her decision.
4. How and where will anything be recorded?
a. If a Child Protection referral is made then a formal recording must be made.
b. Confidential case records may be made by the school
nurse/counsellor/Connexions Personal Adviser if appropriate.
c. It would not automatically be recorded on a pupil’s school file – it might be
felt appropriate if the pupil’s parents had been informed.
d. Paragraph 7.13 of the DfES Sex & Relationships Education Guidance (July
2000) says that it is only in the most exceptional case that schools should be
in the position of having to handle such information without parental
knowledge, and where young pupils are involved, this should be grounds for
serious concern. The Guidance goes on to advise Head teachers and
Governing Bodies to monitor the frequency of such cases. If such cases
occur frequently this points to deficiencies in pupils’ awareness of, and
confidence in, sources of confidential medical advice and should be
addressed in the school’s Sex & Relationships Education programme.
5. What are the legal and child protection issues that might affect the scenario?
a. The Sexual Offences Act 2003 does not intend to criminalise normal
adolescent behaviour but to protect everyone from abuse and exploitation.
Whilst the legal age of consent is 16, it is very unlikely that the Crown
Prosecution Service will seek to prosecute a young male of similar age to the
girl he has had sex with unless there are issues which indicate abuse or
exploitation.
b. The Sexual Offences Act also provides a statuary defence to a charge of
facilitating the commission of a child sex offence in section 14(3) to cover
professionals and laypersons alike so staff may offer and support
confidential access to advice and information on contraception and sexual
health to young people under 16 within certain parameters:
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- protecting the young person from sexually transmitted infection, or
- protecting the physical safety of the young person, or
- preventing the young person from becoming pregnant, or
- promoting the young person’s emotional well-being by the giving of advice
as long as they don’t act for the purpose of causing or encouraging an
activity constituting an offence or the young person’s participation in it.
The above does not apply if the person is acting fore the purpose of
obtaining sexual gratification.
c. If there is sufficient concern to warrant a child protection referral then this
must be carried out.
d. There is no legal requirement for schools to inform parents of everything they
know about their pupils.
e. Careful consideration should be given as to what information is recorded in
order to respect confidentiality since parents have a legal right of access to
school files. There is an exemption in that a head teacher does not have to
provide access to any information contained in a pupil’s educational record
which the pupil would not be able to access under the Data Protection Act,
(eg information about sexual abuse or child welfare allegations, or
information which could seriously harm the pupil’s or anyone else’s mental or
physical health).
Scenario D
During a one to one review, a pupil discloses to her tutor that she doesn’t want
anyone else to know but she thinks her mother is an alcoholic.
1. What actions should the staff member take?
The tutor should reassure and support the pupil whilst gently trying to find out more
about the situation at home. If there is sufficient information to indicate there might
be a child protection issue, then the pupil should be told that the tutor will discuss
the situation with their Child Protection Liaison Officer under the school’s child
protection policy and possibly a senior member of the pastoral care team. She
needs to be reassured that all will remain confidential unless it is felt that a child
protection referral will be made. If that is to be done, then she should be informed
and supported.
2. Who should be told?
Depending on the information gathered, it could be the Child Protection Liaison
Officer and/or a senior member of the pastoral care team.
3. Why do they need to be told?
The pupil may need support and be given some flexibility depending on the
situation at home. Depending on the information gathered, there might need to be
a formal investigation by the Children’s Services into the parenting capacity of the
mother.
4. How and where will anything be recorded?
Depending on the school’s recording policies, a reference to the pupil being upset
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about her mother may be recorded sensitively. If it is felt that a child protection
referral should be made then this should be recorded.
5. What are the legal and child protection issues that might affect the scenario?
a. If there is sufficient concern to warrant a child protection referral then this
must be carried out.
b. Parents have a legal right of access to school files. Care is needed in how
something is recorded as “fact” i.e. “X was upset and worried because she
thought her mother was an alcoholic” rather than “X’s mother is an alcoholic”
(unless this has been confirmed by other official sources.)
c. Article 8 of the European Convention on Human Rights recognises a right to
respect for private and family life. Disclosing such confidential information
could cause disruption to this pupil’s family life. This “interference” could be
argued to be justified if it is necessary to protect the health and welfare of a
child or young person and is a proportionate response, ie the amount of
confidential information disclosed and the number of people to whom it is
disclosed, should be no more than is strictly necessary to meet the public
interest in protecting the health and well-being of the child.
d. The Data Protection Act (1998) should not be an obstacle to disclosure
where a teacher has particular concerns about the welfare of a child and the
Child Protection policies and guidance are followed.
Hampshire Teenage Pregnancy Partnership
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