Providing and requesting information under Chapter 16A

Chapter 16A allows information to be exchanged between prescribed bodies despite other laws that prohibit or restrict the disclosure of personal information, such as the Privacy and Personal Information Protection Act 1998, the Health Records and Information Privacy Act 2002 and the Commonwealth Privacy Act 1988.

Previously this information exchange was generally only possible where the information was sent to or received from Community Services.

Chapter 16A allows for the exchange of information between prescribed bodies without Community Services involvement. In this Chapter, the term “organisation” applies to all “prescribed bodies”, whether they are government or an NGO.

Objectives and principles

Chapter 16A establishes a scheme for information exchange between prescribed bodies and requires organisations to take reasonable steps to co-ordinate the provision of services with other organisations.

The four key principles to consider are:

  1. organisations that have responsibilities for children or young persons should be able to provide and receive information that promotes the safety, welfare or wellbeing of children or young persons
  2. organisations should work collaboratively and respect each other’s functions and expertise
  3. organisations should be able to communicate with each other to facilitate the provision of services to children and young persons and their families
  4. the needs and interests of children and young persons, and of their families, in receiving services relating to the care and protection of children or young people takes precedence over the protection of confidentiality or of an individual’s privacy

Prescribed bodies

Prescribed bodies may share certain information without having to rely on Community Services as an intermediary.

A prescribed body is any organisation specified in section 248(6) of the Act or in clause 7 of the Children and Young Persons (Care and Protection) Regulation 2000. Generally prescribed bodies are:

  • NSW Police Force
  • a State government department or a public authority
  • a government school or a registered non-government school or a TAFE
  • a public health organisation or a private health facility
  • an accredited adoption service provider
  • a designated agency
  • a registered agency
  • a children’s service
  • any other organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly to children.

Under Clause 3 of the Children and Young Persons (Care and Protection) Regulation 2000 a registered agency is defined as a “Division of the Government Service or other organisation registered under clause 40G of this Regulation for the purposes of Part 3A of Chapter 8 of the Act.”

Part 3A of the Act deals with voluntary out of home care, if an organisation intends to provide or arrange voluntary out-of-home care they may apply to the Children’s Guardian for registration.

If you are unsure whether your organisation is included in the scheme of information sharing under Chapter 16A you should seek legal advice.

In May 2016, legislative changes expanded prescribed bodies under Chapter 16A to include the following private health professionals:

  • nurses (enrolled and registered)
  • registered medical practitioners
  • registered midwives
  • registered psychologists
  • occupational therapists (other than students)
  • speech pathologists (eligible for membership of Speech Pathology Australia).
  • an unborn child (if they have been the subject of a report to the Child Protection Helpline or to a Child Wellbeing Unit).

Find out more about exchanging information and private health professionals.

Find out more about requesting information from NSW Health.

Unborn children

Organisations may rely on Chapter 16A to share information relating to the safety, welfare or wellbeing of an unborn child, but only where the unborn child is the subject of a pre-natal report to Community Services.

In accordance with the Act, organisations will need to confirm that a pre-natal report has been made to Community Services before providing information. The information that can be provided includes information about the expected date and place of birth of the unborn child who is the subject of the report.

Risk of significant harm

Information sharing under Chapter 16A applies in relation to children or young people both above and below the statutory reporting threshold of risk of significant harm. A child or young person below the statutory reporting threshold may still need assistance even if they do not need statutory intervention.

In other words, exchange of information can occur irrespective of whether a report has been made to the Child Protection Helpline.

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Informing clients about information exchange

Consent

Consent is not necessary for exchange of information under Chapter 16A. However as it is a principle of the Act that a child or young person should be given an opportunity to express views on personal matters, consent should be sought where possible. Best practice also recommends that consent is sought from family members before information relating to them is exchanged.

It is important that organisations providing a service to a child, young person or their family inform them early on what information may be provided to other organisations, if practicable.

Where appropriate, a child, young person and family should be informed that information about them will be disclosed to another organisation so long as this does not place the child or young person at further risk. Obtaining consent and/or keeping the child, young person or family member informed is considered best practice and helps to maximise engagement and avoid dis-engagement.

This includes informing children, young people or their family about their right to provide feedback, including complaints, about the care or services they are receiving or the disclosure of information under Chapter 16A.

Where a discussion is held with a child, young person and/or their family to inform them about services they will be referred to, the organisation should try and seek consent to making a referral to another service(s).

It should also be explained that this will mean that relevant information about the child, young person and/or their family will be provided to that organisation. Irrespective of whether consent is obtained, the discussion and outcomes should be documented in accordance with organisational policy and procedures.

Generally, children over the age of 12 are considered capable of understanding aspects of their own privacy and information sharing issues. Younger children may also be able to express a view. Some circumstances in which you would not seek consent or inform the child/young person or their family about exchanging information include:

  • where you believe it is likely to further jeopardise a child or young person’s safety, welfare or wellbeing
  • where you believe it would place you or another person at risk of harm
  • where you are unable to contact a parent/carer and the matter is urgent.

An example could be where a school is seeking information from an organisation that is working with the family about whether it is safe to permit the child to be collected from the school by specific family members.

Providing information

It is important from an interagency collaboration perspective that organisations should be able to provide information they believe is relevant to the safety, wellbeing or welfare of a child or young person without having received a request.

The legislation provides that an organisation that is a prescribed body may provide information relating to a child or young person to assist another organisation to:

  • make a decision, assessment or plan relating to the safety, welfare or wellbeing of the child or young person, or
  • initiate or conduct any investigation relating to the safety, welfare or wellbeing of the child or young person, or
  • provide any service relating to the safety, welfare or wellbeing of the child or young person, or
  • manage any risk to a child or young person that might arise in the recipient’s capacity as an employer or designated agency.

Information should be only be provided if the provider reasonably believes it may assist the receiving organisation for the purposes above. This means the person providing the information has well founded reasons for his or her belief. The legislation makes it clear that information may be provided with or without a request being made. Examples of when information may be provided include:

  • different organisations working together to assess a child or young person or coordinate services
  • a CWU exchanging information to assess whether or not concerns about a child or young person meet the threshold of being at risk of significant harm for reporting to the Child Protection Helpline
  • a CWU advising a mandatory reporter that another organisation is involved with a child or young person and suggesting the mandatory reporter contact this organisation
  • a mandatory reporter giving information about a family to a Family Referral Service
  • a worker involved with a family who has concerns about a child or young person and believes that a particular service offered by another organisation would be beneficial
  • providing information to support the assessment of a prospective foster carer by a designated out-of-home-care agency
  • providing information to assist an organisation to investigate allegations against an employee under Part 3A of the Ombudsman Act 1974.

Also see:

Requesting information

An organisation that is a prescribed body can be requested to provide any information it holds relating to the safety, welfare or wellbeing of a particular child or young person.

An organisation may request information from another organisation about a particular child or young person and/or their family if it will assist the requesting organisation to:

  • make a decision, assessment or plan relating to the safety, welfare or wellbeing of the child or young person, or
  • initiate or conduct any investigation relating to the safety, welfare or wellbeing of the child or young person, or
  • provide any service relating to the safety, welfare or wellbeing of the child or young person, or
  • manage any risk to a child or young person that might arise in the recipient’s capacity as an employer or designated agency.

The request must be clear about its purpose and how the information is expected to assist.

Chapter 16A permits prescribed bodies to exchange information. If you are unsure whether you work for a prescribed body or whether you are authorised by your organisation to exchange information under Chapter 16A, you should seek advice within your organisation or from a legal adviser.

Also see:

Agreeing to a request for information

A request for information should be agreed to if it will assist the requesting organisation to:

  • make a decision, assessment or plan relating to the safety, welfare or wellbeing of the child or young person, or
  • initiate or conduct any investigation relating to the safety, welfare or wellbeing of the child or young person, or
  • provide any service relating to the safety, welfare or wellbeing of the child or young person, or
  • manage any risk to a child or young person that might arise in the recipient’s capacity as an employer or designated agency.

Before agreeing to the request, a person in the provider organisation must reasonably believe that the information will assist the other organisation for one of the purposes outlined above. This means the person has well-founded reasons for his or her belief. It also means that the organisation requesting the information must have provided sufficient detail to enable the provider organisation to form the belief before agreeing to the request.

Organisations receiving requests for information are responsible for identifying which parts of their organisation may hold relevant information.

Before disclosing information a worker should generally consult their manager, except in very urgent situations. Your organisation’s policies on information sharing should also be consulted.

Also see:

Declining a request for information

In most cases, organisations will be able to provide information. However, there are certain circumstances under which the provision of information is exempted. These exemptions are contained in section 245D (4) of the Act.

An organisation is not obliged to provide any information requested if the organisation reasonably believes this would:

  • prejudice the investigation of any contravention (or possible contravention) of a law
  • prejudice a coronial inquest or inquiry
  • prejudice any care proceedings
  • contravene any legal professional or client legal privilege
  • enable the existence or identity of a confidential source of information in relation to the enforcement or administration of a law to be ascertained
  • endanger a person’s life or physical safety
  • prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a breach (or possible breach) of a law, or
  • not be in the public interest.

It will usually be self-evident if one or more of these exemptions apply. Where there are unusually complex issues, it may be necessary to obtain legal advice. Organisations may also have their own policies and procedures to assist workers to understand these exemptions. If an organisation declines to provide information, it must notify the requesting organisation in writing of its refusal and the reasons for refusal, in relation to the exemptions listed above at the time of the refusal.

Where there is a disagreement between prescribed bodies about the exchange of information the agreed process for interagency dispute resolution should be followed as set out in any relevant bilateral agreement or under the Child Wellbeing and Child Protection – NSW Interagency Guidelines.

Also see:

Protecting the confidentiality of information under chapter 16A

Chapter 16A establishes a scheme for information exchange between prescribed bodies while still protecting the confidentiality of the information.

Chapter 16A prohibits organisations from using or disclosing information received under Chapter 16A for any purpose that is not associated with the safety, welfare or wellbeing of the child or young person to whom the information relates, except as otherwise required or permitted by any law. An example of this is where information is required to be given in response to a subpoena in court proceedings or reportable allegation to the Ombudsman under section 25C of the Ombudsman Act 1974.

It is important to be mindful of any personal information relating to individual workers that may be contained within the body of information. Irrelevant personal worker information should be kept confidential where possible to avoid any possibility of worker safety issues arising.

The Act does not impose any particular requirements around storage of the information requested or provided under Chapter 16A. Storage of information should be consistent with the State Records Act 1998, even where that Act might not otherwise apply to the organisation.

The State Records Act 1998 imposes an obligation to ensure the safe custody and proper preservation of records and the maintenance of accessibility to electronic records.

Relevant privacy requirements applying to storage of information under the Privacy and Personal Information Protection Act 1998 (PPIPA) or the Health Records and Information Protection Act 2002 (HRIPA) will also apply. These include the requirements relating to the retention and security of personal information or health information under those Acts (section 12, PPIPA and clause 5, Schedule 1 of HRIPA).

Designated agencies should also be mindful to fulfil the requirements set out in section 170 of the Actin relation to the placement of a child or young person in out-of-home care (OOHC). Each designated agency must keep the records made by it in relation to the placement of a child or young person in OOHC for seven years after the designated agency ceases to be responsible for the placement of the child or young person.

At the expiration of this period or, if, within that period, the agency ceases to be a designated agency, it must deliver the records required to be kept under this section to the Director-General.

Also see:

Protection for staff

If a person acts in good faith when providing any information under Chapter 16A, he or she:

  • is not liable to any civil or criminal action, or any disciplinary action, for providing the information, and
  • cannot be held to have breached any code of professional etiquette or ethics or departed from any accepted standards of professional conduct.

Opportunities for feedback or complaint

If a child, young person or their family members feel that there has been a misuse of Chapter 16A, or that there has been an unreasonable breach of privacy, the organisation should be advised of the concern or complaint. If the matter is not satisfactorily resolved the complaint can be escalated to the relevant funding or oversight body.

In NSW, the relevant oversight body is the NSW Ombudsman (www.ombo.nsw.gov.au) or phone: 02 9286 1000).

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To report suspected child abuse or neglect, call the Child Protection Helpline on 132 111 (24 hours/7 days)