This Blog chronicles the acquisition, recording and eventual disclosure of Mr F’s identity and full clinical details about his HIV+ status, without his knowledge and/or consent.
We submit for Trial by Social Media, case concerning the conduct of Mr F’s assessment for Adult Social Services and the subsequent willful and wanton disclosure, without any legal requirement to do so, of his HIV+ status and relevant clinical details, by his local authority – The Royal Borough of Kensington and Chelsea, RBKC. Who were not even entitled to possess such sensitive information, as they do not provide a service, where it is imperative for the individual’s HIV status to be known.
On 1st June 2018, F advised RBKC that he decided NOT to proceed as an LiP and go through the Courts with perhaps a very lengthy and costly case. Instead he will submit his concerns to the General Public, for their comments and advice, in what would be a Trial by Media.
Had RBKC agreed with F’s request to Confirm their understanding of his May 2010 Amendment to Information Sharing Agreement, and most importantly, as they were obliged to do, complied with paragraph 10-(3)-(a) or (b) of the DPA 1998, this Blog would not exist. Even if RBKC complied with the DPA and provided F with an unacceptable response, he would have taken appropriate action, so that his requirements were complied with.
The Information Commissioner, ICO, is also at fault, when F asked him for advice in January 2011. He failed to realise and advise F, as he was entitled to do in accordance with para 55 of the DPA 1998, that F’s Amendment was in line with para 10 of the DPA 1998 and RBKC were legally obliged to respond to it. F should have been told by the ICO to ask RBKC for their response to paragraph 10-(3)-(a) or (b). He should have also been told that RBKC must follow the “statutory guidelines”, the ICO’s “Data Sharing Code of Practice“, where section 4 was of interest.
Instead, in his “assessment” dated 23rd January 2012, the ICO sided with the RBKC, without any further reference and giving F the opportunity to APPEAL, promptly closed the case. The ICO regarded F’s request for ADVICE as a COMPLAINT, which it was NOT, as F was NOT sure who was right at that time.
F would have realised this legal fact in 2011, rather than much later. He would have taken a far more pro-active action to resolve the matter, rather than drag it on…
It should be appreciated that the disclosure of F’s clinical details is WITHOUT a PRECEDENT. In other words, it has NEVER happened in English legal history, since mid 1980, when the HIV virus was identified, that individual’s HIV+ status was disclosed without the individual’s CONSENT, as described on Ms Leverne Parker, RBKC’s Chief Solicitor’s page, who on 15th September 2011, sent 146 CONFIDENTIAL documents to the Local Government Ombudsman, LGO.
Subsequent searches and requests for legal advice, showed a dire dearth of legal information and PRECEDENT, complicating the legal professionals’ unwillingness to get involvement in the matter. We guess, for the fear of setting a precedent and getting involved in an argument over an UNIQUE event.
The introduction of the 2018 Data Protection Act/GDPR, now permits the Information Commissioner to have a new look at F’s concerns.
On 14th January 2019, F provided a link to his new blog.
On 23rd January 2019, Ms Tasnim Shawkat, Director of Law, chimed in with her contribution to the saga, asking F what he would like her to do.
For ease of reference, the complete “thread/conversation” is at the above link, to provide the complete confused history of Ms Shawkat’s involvement. From her first involvement on 23rd January until 17th July 2019, when it was agreed to take her of the mailing list, as she was NO longer involved in the matter,
On 30th January 2019, after Ms Shawkat told F that she does not read BLOGS, F sent her a list of documents he would like RBKC to provide, in a way to resolve the saga.
On 18th February 2019, Ms Shawkat told F that as the outcome of F’s new complaints to the ICO, “may be unpredictable“, she suggested that she should meet with F to resolve the matter, This was the first and the last time, that RBKC suggested that the matter may take an “unpredictable” turn.
As you will see from the thread, Ms Shawkat was VERY RELUCTANT to let F know what she wanted to discuss with him. Taking into consideration that it was she, who implied that the outcome of a new complaint may be unpredictable, it may be assumed what she might have had on her mind. You may think so also, but that would be nothing but a “conjecture”?
F suggested to the ICO that he should address events surrounding his May 2010 Amendment to Information Sharing Agreement. The ICO told F that he can only re-consider his concerns, if he re-activates his complaints with RBKC. Should he receive unsatisfactory responses, the ICO can than accept his new complaint.
Although F asked for confirmation of the Amendment, on 17th May 2010, F received ONLY a response to the 1st part of his Amendment, dealing with CONSENT. As he could not find any evidence that RBKC replied to the 2nd part of the Amendment, he decided to address this matter with RBKC at this time.
By the way, even these were completely ignored by RBKC, when the LGO asked for copies for F’s Assessment documents, which are deemed confidential.
On 28th November 2019, the ICO told F that “I am in agreement that it is now a case of waiting for the council to respond directly to F on this occasion. From there you can then bring a complaint to us where appropriate.”
F finally agreed with RBKC on 10th December 2019, as the latest date for RBKC’s submission of evidence of their compliance with 2nd part of the Amendment, and most importantly, paragraph 10-(3)-(a) or (b) of the 1998 DPA,
Judging from Ms Shawkat’s concerns that the outcome of a new review of F’s concerns under the new 2018 legislation, would be “unpredictable”, any sensible and pragmatic person would try his hardest to reach a resolution, to avoid a new review by the ICO. NOT an inclination held at RBKC, though. It may be assumed that they still steadfastly defend their position of rightfulness, despite the fact that the assessment document is nothing but a fakery and the disclosure of F’s HIV status contrary to existing legislation.
However, on 3rd December 2019, the meddling resumed. Yet another faceless and clueless “RBKC data protection expert“, in the guise of Dr Fatima Zohra chimed in, in an attempt to provide a resolution to this sorry saga.
At first sight her missive appeared to be nothing but a disorganised, contradictory mess. However, on a closer scrutiny, it became clear that Dr Zohra was out to obfuscate the matter beyond any recognition. She hoped to bamboozle F’ into acceptance of her absurd proposal, by clicking the underlined link. Sadly, Dr Zohra must have been so, so disappointed, when she realised that it takes much more to f*ck F’s brain into submission. It may be assumed that she was surprised by F’s response, NOT accepting her solution, to drive her to suggest that F submits his concerns to the ICO; action very much resisted by Ms Shawkat.
Dr Zohra’s missives are deficient of facts. She claims that the LGO’s request for F’s assessment documents was a “routine request”. If this were true, how on Earth did Ms Maclean and others gain unrestricted access to F’s CONFIDENTIAL file, held in a secure location by his Social Worker? Apparently, as RBKC told HCPC, because there was a “specific request”, of which RBKC were unable to produce a copy, which rendered the Social Worker impotent, and he had to permit unfettered access to whatever information.
On 16th December 2019, F informed the ICO that RBKC failed to comply with his Request for documents, confirming RBKC’s compliance with para 10-(3)0(a) or (b). This may be regarded as the key that will open the Pandora Box, whence all sorts of unexplained/unjustified items will emerge; some for the ICO, others for the DHSC and maybe others. F asked the ICO how the unique complaint, which may be published, should be handled and still maintain his anonymity.
It should be remembered that RBKC failed to comply with: Common Law Confidentiality, Statutory restrictions on data handling, ICO’s statutory “Data Sharing Code of Conduct”, “Confidentiality – NHS Code of Conduct”, DHSC’s “DPA 1998 – Guidance to Social Services”, Article 8 of the Human Rights Act, DHSC’s “Guidelines for the conduct of Adult Social Services Assessments for Adult Social Care”.
On 23rd December 2019, F informed RBKC that they failed to provide a response to his Request for a copy of a document, confirming RBKC’s compliance with 2nd part of F’s Amendment to his Information Sharing Agreement. As the time limit of 10th December 2019 had long expired, F is free to submit a formal complaint to the ICO. We are now awaiting his clarification of the above points.
Whilst waiting for ICO’s advice how to maintain F’s anonymity and confidentiality when presenting a formal complaint, on 3rd January 2020, we submitted to the ICO a detailed consideration a to what lead to F’s issue of his May 2010 Amendment to his Information Sharing Agreement. It considers the possible unpredictable consequences many RBKC service users may have suffered by the use by other Social Workers of the same contentious signature block.
IMPORTANT PREAMBLE dated 8th November 2018 relating to Disclosure of F’s Information: When F found that RBKC reneged on their promise to provide a copy of the ‘list of documents’ sent to the LGO, as addressed on the ‘Disclosure page‘ on 9th November 2018, he reminded RBKC of this fact.
An automated response from Ms Stella Baillie, informed F that the specific email address was no longer in use and any enquiries should be directed at the Westminster Council. No further details were given. Enquiries revealed that this amoral husk of humanity, who has caused so such grief to many, has been quietly PENSIONED OFF, no fanfares, no great thank yous.
She will now enjoy a Gold plated PENSION, paid for by Borough Residents, many of whom have suffered from her whims, depriving them of better quality of life, wellbeing and improved independence. Her comeuppance will not only come on these pages, but also when she takes the stand, as she should, at the GRENFELL Inquiry and answer questions about social housing allocations at GRENFELL. This has quite a few miles to run, retired or not.
Ms Maclean’s response regarding ‘CONFIDENTIALITY‘, and the handling of St John Hospice letter, demonstrate RBKC’s unequalled arrogance, utter disregard for law, order and procedures of this land and their moral bankruptcy. So well demonstrated at Grenfell, where so many unidentified innocent young souls were cremated alive.
In this context, the way disclosure was handled by the ECHR, is shown in Z v Finland and I v Finland. Also of interest is the way London’s Brent Council handled their uncertainty whether they should disclose foster parent’s HIV+ status to a child’s biological father. Furthermore, the ICO imposed a Monetary Fine on a Soho HIV Clinic in September 2015, for merely inferring by an accidental disclosure of Clinic’s Newsletter recipients that they may be HIV+, creating a public and media frenzy over the event. Had such a disclosure happened, at say TESCO, the event would passed by unnoticed.
The latest information about Mr Leak, F’s Social Worker, is an automated reply, telling all and sundry that he is NO longer employed by RBKC..
In respect of the ‘assessment’ process, events PRIOR to the issue of the ‘decision letter’ are important, as RBKC wholeheartedly hoped that by NOT giving F clear opportunity to challenge the decision, he would accept the outcome and move on.
It is clear, from the subsequent events, that RBKC did not expect him to query anything, least of all compliance with the Department of Health guidelines. In this respect RBKC relied/hoped on the usual ignorance of procedure by the ‘general public’ and take a warped advantage of it. How many other individuals have suffered in the same way?
Before you proceed any further, let’s make one important thing clear:
Putting aside any other provisions, had Ms Stella Baillie, RBKC’s Director of Adult Social Services and the authority’s Caldicott Guardian ensured that Social Workers and other employees followed the legislation, codes of practice, guidelines and the Caldicott Principles, in the conduct of F’s assessment and the eventual disclosure of his HIV+ status, without F’s CONSENT and even knowledge, or a legal requirement to do so, this Blog would not exist.
Although asked by the legal department for guidance on the LGO’s request for F’s information, she chose NOT to respond; thus reneging on her responsibilities as RBKC’s Caldicott Guardian.
It must also be appreciated that F was NOT aware of any assessment questionnaire, let alone asked to participate in its completion. He had NO idea how the Assisted Self Assessment Questionnaire, ASAQ, looked like, let alone that he should have verified the answers and signed it.
It was NOT until 11th February, 2012, 16 MONTHS AFTER the alleged assessment, that F saw, FOR THE VERY FIRST TIME, the handwritten, incorrect, unverified and unsigned by him ASAQ, signed only by the Social Worker, on a wrong date, allegedly used on his assessment.
This came to light after all the complaints and decisions were made, based on a WRONG document, equally incomplete, unverified and unsigned FACE Report.
Due to Ms Baillie’s failure to impose compliance with Guidelines, RBKC have ended up in an unenviable situation, when they are unable to provide a credible evidence that F had anything to do with the completion of the ASAQ. In fact, it could have been completed by whomever, wherever and whenever, scoring the answers to arrive at a predetermined result. The ASAQ is nothing but a worthless forgery, reviewed by equally worthless ‘panel’, deciding on F’s quality of life, independence and wellbeing, as addressed on the Assessment page.
Most disgusting is RBKC’s complete disregard with customary arrogance of F’s May 2010 amendment to his Information Sharing Agreement, which is one of the cornerstones of data handling process, addressed on the Information Disclosure page.
As a consequence, F was NOT aware of what information RBKC disclosed to the LGO in response to his request. RBKC deemed it NOT NECESSARY or ethically/morally prudent to let him know. Had the LGO not informed F that he had received old Care Plan Reviews, which contained his HIV+ relevant information, F would not be any wiser.
Very disturbing is HCPC’s statement that the processes and procedures for both handling and sharing of personal information at RBKC is flawed. This is illustrated by the way RBKC handled a copy of St John’s Hospice letter, which was made available to Ms Carter.
If this applies to Adult Social Care information, what causes concern is whether same cavalier attitude exists in respect of CHILD SOCIAL SERVICES INFORMATION. It would be naive to think that there is any difference between them.
Even after F made RBKC aware that his right to Confidentiality was ignored and handling of his HIV+ specific information was NOT subject to the DPA, reconfirmed by ICO on 6th November 2016, Ms Parker told F on 25th November 2014 “ I do not want to rehearse previous arguments because we will not agree but I would like to explore a practical way forward which meets your approval.” Ms Parker’s proposal is addressed on the Deletion page.
To this day, NOBODY is prepared to accept the responsibility to deal with the clear breach of the NHS Statutory Restrictions on data handling, applying to F’s HIV relate information, highlighted by this Blog
He also saw, for the very FIRST TIME EVER copies of the 146 confidential documents sent to the LGO, some of the not only clearly disclosing his HIV+ status, but also provided clinical details of his condition’s progress, the life saving medication he must take and the inevitable nasty side effects he suffers as a consequence. Information, had RBKC complied with his May 2010 Amendment to his Information Sharing Agreement, would have been long removed from his files.
Therefore, all the complaints about his assessment, were based on a wrong form, the also unverified and unsigned FACE report.
F thought for a while that perhaps he was too protective of his personal information. This was swiftly dispelled on 1st September 2015, when an accidental disclosure of Soho HIV Clinic Newsletter subscribers’ email addresses was made. The frenzied media and individuals’ interest, made F to realise that a disclosure of individual’s HIV status was indeed a serious matter.
RBKC seem to require, for whatever purposes, details of F’s HIV condition, hence keeping the details on his file. The FACE Report dated 21st October 2010, clearly states that ‘Is the person the responsibility of RBKC: YES. Yet, in order to update that information, not a sole from RBKC’s Adult Social Services has enquired about it since that date. This would question whether it is actually imperative for RBKC to have ever required this information.
Short Overview what this Blog is all about.
Earlier events leading to the creation of this Blog.
You may also perhaps like to consider a case relating to disclosure of HIV+ status by a local authority. The case is Brent v Mr N. Had Ms Parker, RBKC’s Chief Solicitor and others involved in F’s matter, were anywhere near the Brent Council, would have in an assumed temporary lapse of sanity, disclosed on a whim of unjustifiable NECESSITY, prospective foster father’s HIV+ status. This might have created unnecessary distress and uncertain future for a child. Thank God, Brent Council had the presence of mind and seek legal guidance in what is was very rare matter.
They adhered to the well known principle: “If you are NOT absolutely SURE that you have the legal right to disclose person’s HIV+ information, you MUST NOT disclose it. It will than become the responsibility of the requester to provide a Court Order, explicitly asking for this information. As we all know, a Court Order can be challenged by the information holder, refusing the disclosure for specific reasons.
Very disturbing is the fact that NOBODY, the ICO, PHSO, HCPC, etc, asked F’s Social Worker, or indeed the RBKC, to provide a legally sound document which COMPELLED the Social Worker to unequivocally permit access to F’s CONFIDENTIAL file and allow unrestricted cull of 146 documents from F’s file, without his CONSENT or KNOWLEDGE. This serious omission might suggest that there was some collusion between these parties and RBKC, to ensure that a copy of this crucial document is NOT asked for.
RBKC’s and other’s involvement in F’s case:
Despite the fact that local authorities are NOT entitled to ask for or receive individuals’s confidential records, including details of person’s HIV status, RBKC collected F’s information. recorded it and disclosed it without his consent or even knowledge. To this day F was NOT told WHY was his HIV information needed.
3. Conduct of his Adult Social Care assessment‘ for Adult Social Care carried out by RBKC, whilst disregarding relevant Department of Health Guidelines. In addition, endlessly asking for MEDICAL information to provide a new assessment to be made, despite the fact that local authorities are NOT entitled to ask for, or received individual’s confidential medical information, including details of person’s HIV status.
When RBKC plainly got fed up F’s requests for answers to specific questions, Ms Daintith, Executive Director for Housing, Health and Adult Care Services, told F on 2nd March 2012, that ‘as he was no longer receiving a ‘service’, RBKC will NO longer reply to any of his questions. Telling F to refer the matter to the Information Commissioner was absurd. These matters have nothing to do with him; they are for the LGO to consider. In effect, F was to told to fuck off and not to bother RBKC any more.
Therefore, to this date, RBKC have NOT justified the points raised in his complaint to the LGO, relating to RBKC’s non-compliance with the Department of Health guidelines, because the LGO chose NOT to ask RBKC anything about this matter. This is addressed in more detail on the Assessment page.
RBKC are entitled to carry out a ‘re-assessment’ for services, when they feel fit. However, F cannot understand why his DLA re-assessment in late 2008 was not taken into consideration. At that time F completed a detailed 37 page assessment document, providing additional information. Document in content very similar to the ASAQ, used by RBKC. Comments were provided by his clinical specialists and his GP. Based on this rigorous re-assessment, DWP confirmed that his DLA should continue at levels agreed in 2000.
4. Complaint to the Local Government Ombudsman about RBKC’s conduct of F’s assessment for Social Care.
5. RBKC’s disclosure of F’s HIV+ status and relevant clinical information to the Local Government Ombudsman, without any legal requirement to do so.
It must be remembered that had RBKC complied with F’s May 2010 amendment to his Information Sharing Agreement, which turned out to also be a NOTICE in line with paragraph 10 of the DPA, there would NOT have been any of F’s HIV relevant information to disclose, as it would have been removed in MAy 2010, in line with Department of Health statement.
Although every piece of legislation, guidelines and codes of practice stress the importance of CONFIDENTIALITY and the individual’s CONSENT relating to disclosure of HIV related information, it appears that by some magical, consistent agreement, all of those involved in the saga, as you will read, shied away from even mentioning CONFIDENTIALITY and CONSENT. Understandably so, because that would open up a new can of worms and steer the matter in a very undesirable direction. So, all of those involved, chose to keep quiet.
The most absurd comment, clearly outside of the Realm of Sanity, was made by Ms Bowes of PHSO, who echoed ICO’s statement ‘that the information the Council had provided to the LGO was not obviously irrelevant to LGO’s request for information. They did not think it was likely the Council breached the Act. We do not think ICO’s approach was unreasonable and it did not therefore amount to an administrative fault.’
This is utter nonsense. It must be remembered that a single mention of the acronym HIV, or inference to it, in a wrong context, is a breach of the NHS Statutory Restrictions on data handling.
However, of interest is the ICO handling of the ‘accidental’ disclosure of email addresses of subscribers to Soho HIV Clinic’s Newsletter on 1st September 2015.
The ICO imposed a hefty penalty on the Trust, for merely implying that those subscribing to the Newsletter, may be HIV+.
It must also be considered that F’s clearly identifiable HIV+ clinical information has ended up on an unknown number of computers. Not only within RBKC, but the LGO; God only knows how many people became unwittingly aware of F’s HIV+ status? . Both organisations have compulsory backup procedures; the internet service providers are also obliged to keep copies of all communications for a predetermined period of time.
6. Complaint to the Information Commissioner about RBKC’s disclosure to the LGO of F’s HIV status.
To this date not a single organisation has confirmed that they are responsible for administration of complaints dealing with breaches of the NHS Statutory Restrictions on data handling – the NHS(Venereal Regulations)1974. They all keep referring F to each other.
8. Complaint to the Health Care Professional Council about F’s Social Worker’s failure to protect his information and allowing access to F’s confidential medical information without proper legal authority.
9. HCPC and RBKC’s “formal request”, which as claimed by RBKC compelled Mr Leak to put aside his professional and legal responsibilities to F and permit wholesale cull, by whomever, of F’s documents from his file, without his consent/knowledge. So far, RBKC have been UNABLE to provide a copy of this important document.
11. Request for assistance from RCJ and the Pro Bono Service. It was this unbelievable encounter that compelled F to ask the ‘Court of Public Opinion’ for their advice, opinion, comments.
12. Complaint to the NHS about disclosure of F’s HIV+ status.
30. Bullying tactics used in an attempt to shut down our first Blog.
This Blog publishes the actual documents received from RBKC and all of those involved in this matter. It highlights the willful, wanton and arrogant disregard for the relevant legislation, guidelines, codes of practice, by not only RBKC, but also by all involved in this matter.
Although disclosure of HIV related information is governed at least by the Common Law Duty of Confidentiality and Article 8 of the Human Rights Act, there is a dire dearth of legal advice, case laws and precedent relating specifically to disclosure of HIV related information without consent.
Therefore, this Blog reflects our understanding of the various laws, guidelines and codes of practice relating to handling of HIV relevant information.
In addition to RBKC, the following were involved in the saga
The Law Commission, for reference only
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