Scots headteachers could find themselves facing court action under controversial new Named Person proposals, legal chiefs have warned MSPs
Holyrood’s Education Committee heard concerns that fresh legislation could lead to “defensive practice” by teachers worried about being held responsible for decisions on sharing information about a child.
The committee was told that named persons were likely to have their legal department “on speed dial”.
MSPs are considering fresh legislation that seeks to address issues raised in a Supreme Court legal ruling on the policy, which would see a single point of contact, such as a teacher or health visitor, appointed to look out for the welfare of all children.
The Children and Young People (Information Sharing) (Scotland) Bill was drafted after judges ruled last year that elements of the original legislation were ‘’incompatible’’ with the right to privacy and family life as set out in the European Convention on Human Rights (ECHR).
One of the main changes proposed is that a duty to share information which could support, promote or safeguard the well-being of a child would become a duty to consider whether to share that information.
Lorna Greene, policy officer for the Royal College of Nursing (RCN) Scotland, said the judgment had led to “confusion and nervousness” and the organisation was concerned the change in the legislation could turn decisions into a “tick box exercise”.
“RCN thinks it could potentially have quite a significant impact in the form of leading to defensive practice,” she said.
“By introducing a duty to consider, we’re worried professionals might find themselves becoming nervous and wanting to evidence and sort of cover all their bases which would take time away from that meaningful face-to-face interaction.”
She added: “We are concerned ... 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.”
Valerie White, consultant in dental public health at NHS Dumfries and Galloway, said the change in the threshold for sharing information “does now appear to be a bit confusing to us”.
“We’re clear if it’s child protection concerns that we share that, if it’s well-being I think we are struggling with that at the moment,” she said.
Janys Scott QC, from the Faculty of Advocates, said professionals considering whether to share information could end up in a “damned if you do, damned if you don’t situation”.
Asked if she thought the legislation was setting up the potential for another legal challenge, she said: “If not to the structure of the legislation, to individual instances of data processing, yes”.
Kenny Meechan, a solicitor and member of the privacy law sub-committee of the Law Society of Scotland, said: “I can envisage an awful lot of people who are given named person responsibilities having their legal department on speed dial.”
But he said he did not believe professionals would face personal litigation “in the absence of bad faith of some sort”.
He said it was a “near impossible task” to legislate on data protection at the moment because it was “very much a moving target” in the context of an ongoing overhaul of UK data laws.