Health deterioration

All of the following could have been avoided, had RBKC not only followed F’s amendment to his ‘Information Sharing Agreement’ of May 2010,  which turned out to be a Notice in line with paragraph 10 of the DPA 1998. but also followed the established regulations, guidelines and codes of practice.  With the usual arrogant panache, RBKC chose to ignore the basic principles ofConfidentiality‘.

   F became very upset and anxious that his HIV information had been disclosed to the LGO without consent/knowledge and at odds with his Information Sharing Agreement, which he amended to the specific purpose of this event not to occur.   

From the day he received RBKC’s justification for the disclosure, he began to research the matter.  He was aware that CONFIDENTIALITY  would apply in any case, making the matter more involved by the presence of HIV related information.

This was far easier said than done.  From the very beginning he found that had he been a thief, child molested,  rapist, murdered, illegal immigrant or a fraudster, he could avail himself of free legal advice.  However, when he mentioned HIV, this was NOT forthcoming.  NOT a single legal professional was prepared to give him the basic information;  Not even to indicate that the information would be, in any case, CONFIDENTIAL.

It can be assumed that legal professionals shied away from this matter, purely because of HIV.  There was no legal advice available,  for free or for a fee.

Strangely, none of those contacted even volunteered to tell him that the disclosure would be   breach of common CONFIDENTIALITY.

The existence of a dire dearth of information and generally ending up in a  legal cul-de-sac, he began to suffer from frustration, anxiety and distress due to the lack of progress.

F was absolutely astounded by the arrogant reply from Ms Caroline Maclean on 14th January 2013, informing F that RBKC had NO option but to disclose his information,  in order to protect the Authority’s REPUTATION.

Soon afterwards F began to suffer from stress related conjunctivitis,  which could have had a serious effect on F, as he had in 2000 suffered from CMV.  This could have been re-activated and could have caused permanent blindness.   It can be safely assumed that Ms Maclean’s outrageously arrogant and lawfully faulty riposte,  acted as a trigger for  these events.

In all, F suffered 4 bouts of this condition in 2013.

In November 2013 he began to suffer from anxiety and distress, which was exacerbated  by a prolong bout of conjunctivitis, unable to clear up.  He began to suffer from various phobias. Most serious was rejection of his medication and unable to sleep.  He began to wonder the streets of Notting Hill  during the middle of the night, unconcerned for his safety.  He had to repeat these walks 2-3 times a night.  Afraid of sleeping at home, he undertook long bus night trips to snatch a nap. 

On 7th January 2014, F underwent had a consultation with Dr Helps  and another clinical hypnotherapist.  Despite this treatment, he still suffers from nightmares and distress.

This culminated in a serious anxiety attack on 11th January 2014, when he had to be  admitted, as  a matter of urgency, suffering from acute anxiety attack. 

He was discharged a few days later.

Dr Walsh wrote on 5th February 2014, expressing his concerns about deterioration of F’s general health

It can be assumed that the unnecessary anxiety and stress  caused by his concerns about the disclosure of his HIV+ status exacerbated his  heart condition, which lead to a major Open Heart Surgery in 2018.

Legal information & Legal Aid

F treats his personal information as ‘private’ and is divulged only  on ‘need to know basis’.  Therefore, very few individuals outside of the medical profession are aware of his HIV+ status.  

As soon as F received the ICO’s ‘assessment’ on  23rd January 2012,  he decided to undertake his research to confirm or not,  that ‘RBKC  were likely to have complied with the Data Protection Act‘, as claimed by RBKC.’

He discovered that all  information contained in Social Workers’ files is deemed to the ‘CONFIDENTIAL’ and must be treated as such.

F found the Department of Health’s “Data Protection Act 1998 – Guidance to Social Services.  These do not publish anything NEW in the legal sense,  but clarify application of the DPA in a Social Services environment, together with details procedures to follow in the various situations.   Section 6.22 is relevant to F’s matter.

On 14th April 2012, F wrote to the ICO, asking about this particular publication. Mr Chamberlain replied on  16th April 2012, telling F that he was NOT aware of these Guidelines and he should refer himself to the Department of Health.

This appears to be rather strange.  We were of the impression that the ICO would be/should be aware of any Guidelines, Code of Practice or other publications, which influence the handling of information under specific circumstances. 

He approached the matter with an open mind, purely interested in finding the proper  legal advice,  justifying the disclosure of his HIV+ related information.  He approached the many legal professionals, listed on the GOV.ORG website, for basic advice.

Had F been a murderer,  thief,  child molester, fraudster, illegal immigrant or whatever, he  could avail himself of a plethora of even  free legal advice.  However, when it comes to HIV,  although basically  a matter of a serious breach of  CONFIDENTIALITY,  help is NOT available, for a fee or for free.

It appears that legal professionals are unwilling to get involved in this rare, perhaps unique matter, perhaps because it is HIV,  a truly loathsome subject for them to get involved in . It is also understood that many legal professionals are unwilling to take action against local authorities, particularly if they work in the same Borough as the authority.  Some legal professionals are on confidential retainers by the authorities, to ensure that they DO NOT TAKE on any actions against them. 

F found  from the a flyer issued by  Gordon Slater Solicitors, that action for breach of CONFIDENTIALITY must be brought  to Court within SIX YEARS of the event.   This was confirmed by the   Limitation Act 1980. 

In F’s case, the disclosure occurred on 15th SEPTEMBER 2011, when Ms Parker signed the cover letter for the 146 CONFIDENTIAL documents and sent them to the LGO.   F discovered this fact ONLY on 11th FEBRUARY 2012, when he received the requested copies of the documents sent to the LGO.  Until this date he was UNAWARE that anything was sent.  It can be assumed that the SIX YEAR period would mature on 14th SEPTEMBER 2017.  This smacks in the face of the Pro Bono statement about the time limit.

F managed to obtain some legal aid to mount a case review in  July 2012,  of the ICO’s ‘assessment’, dealt with on the ICO page

In fact, as F discovered some years later, that the ICO was in NO WAY ENTITLED to consider any breaches of the Statutory Restrictions, which are controlled by a different legislation, in F’s case the NHS Statutory Restrictions on data handling, which is OUTSIDE OF THE ICO’s REMIT.   This was confirmed by the ICO on 6th January 2016.

In 2014, when F could not obtain any advice on specific points, he asked James Chalmers, Senior Professor of Law at Glasgow,  a respected authority on HIV/AIDS and the law, for his help,  Graciously,  the Professor provided with view on paragraph 29-7 of the Local Government Law,  the NHS Statutory Restrictions on data handling and the necessity for signatures on documents.  In F’s casethe Assessment document and his Care Plan Reviews.

In his authoritative book ‘Legal Responses to HIV and AIDS‘, Professor Chalmers addresses the NHS Statutory Restrictions on data handling, the NHS(Venereal Regulations)1974.  This is the ONLY legal review of this specific law, dealing with handling of information relating to HIV.

During his search for advice, F was often referred to the Citizens Advice Bureau, CAB.  He approached the CAB on three occasions.  On the 1st,  at their offices in Ladbroke Grove.  The two advisors’ eyes glazed over, when he  mentioned his concerns about disclosure of his HIV+   status.   He was given couple of phone numbers, which lead to services no longer on offer.  During his 2nd visit in their new offices in Ackland Close, he was given details about the Pro Bono, whom he contacted.  When he returned to seek further advice, he was treated with nothing but open contempt and hostility. by the advisor of Chinese origin.

It became evident that they have never come across such a rare topic.  In fact, an unique event.  The ICO, NHS and DHSC confirmed that they have NOT received a complaint from anyone  regarding disclosure of someone’s HIV+ status without explicit consent.  The British Legal Index does NOT list a single case either. 

In 2016, F thought of taking the case up as a Litigant in Person (LiP).  In this context he found that he may qualify for legal advice from the Citizens Advice Bureau based at the Royal Court of Justice.   He applied  for help, which is dealt with on the  RCJ/Pro Bono page of this Blog.

He also enquired  from the Legal Aid Agency about the possibility  of applying for Legal Aid, should it be necessary.  On 9th October 2016,  F submitted his first query, which resulted in a negative reply.  After F provided more information on 11th October, the Legal Aid Agency agreed  on 13th October 2016, that his case was a breach of Article 8 of Human Right Act and therefore would qualify for Legal Aid.  F was told that  he would have to apply for it through  an accredited Legal Aid Solicitor.  As this was well night impossible, as none were prepared to take his case on, he pursued a different approach.

F tried to avail himself of a little known provision of a Direct Approach to a Barrister.  Two agencies acting on behalf of their member Barrister, could not, after an extensive search, find a single Barrister prepared to even advise on the matter.

In 2016, F and his colleagues tried  again to obtain some legal advice,  However, without any result.   Many of those listed, chose not to even reply to F’s basic questions.  Others, expressed their inability, for various reasons, for not assisting in the matter.  F ended up in a  legal cul-de-sac.  It may be alleged that on some occasions  dark forces were at play to obstruct the progress of F’s research, even when he considered to handle the legal matters himself, as a Litigant in Person.  This is addressed on the RCJ and Pro Bono page.

When this produced  negative result, we have decided to publish all of F’s concern on the internet, in the form of a Blog, asking  the Court of Public Opinion for their comments.

Any reader who may have a constructive advice on the matters addressed in this Blog, is invited to submit it here, or preferrably on the Desired Outcome page, or by Tweet or email.

Royal Courts of Justice & Pro Bono Advice Service

The RCJ as well as the Pro Bono ‘advice’ to F is so absurd, that it  can be   alleged  that dark forces, Hell bent on diverting the course of F’s investigation,  were involved in an informal reprehensible machinations with the RCJ and even the Pro Bono, to ensure that F’s matter was quietly  stifled. 

Both were cajoled to meander outside the Realm of Sanity and feign amnesia that personal medical information is deemed CONFIDENTIAL and must be treated as such. 

Everyone in this country relies on this principle, to keep their medical information, kept by whomever,  to be treated as CONFIDENTIAL.

However, when  details of venereal diseases  are part of this information, the matter becomes very specific and narrow in legal terms.  The fact that this specific information is CONFIDENTIAL,  was reiterated as early as 1916, in the Public Health(Venereal Diseases)Regulations 1916.  These were revised and strengthened in 1974 by the NHS(Venereal Regulations)1974 and in 2000 by the  NHS(STD)Directions 2000,  Fact the Pro Bono chose to ignore.

It can be firmly assumed that had F had been a multiple rapist, burglar, compulsive child mollester, determined fraudster  or an illegal immigrant, he  might have received  plethora of advice for free from many sources. However,   NOT where  HIV is involved, not only due to the highly  sensitive nature of the information, but also for a lack of precedent, despite the fact that a disclosure  would be  at least in breach of  Common Law of duty of Confidentiality imposed on the information holder.  It smacks of selective discrimination on the grounds of the nature of the information, and the individuals  affected by this virus and the stigma surrounding the matter..

When F realised that he was unlikely to obtain legal advice, for free or for a fee, from the commercial legal sector,  due to the nature of information involved in the matter, he considered handling the  matter by himself, representing himself,  as a Litigant in Person, LiP,  if necessary.  It appeared that he knew  quite a lot about the legislation  and the relevant guidelines and codes than all of those he sought advice from.

To ascertain whether he may be entitled to ‘Legal Aid’ should he need it, on 11th October 2016 F asked the Legal Aid Agency for advice.

The agency confirmed that the disclosure of his HIV+ status would in breach of Article 8 of the Human Rights Act and should he need Legal Aid he  could apply for it through the offices of a properly registered Legal Aid solicitor.

This presented a snag, as he could not find such a person.   He found out that should he avail himself of the little known ‘Barrister Direct Access Scheme‘,  and find a Barrister prepared to give advice, he may suggest a solicitor, through whom he may apply for this Aid.  However, he could not find a Barrister prepared to give advice, not even for a fee.

He found out that as a  ‘Litigant in Person’. LiP,   he may apply for free legal advice from a group of law students based at the Royal Courts of Justice, RCJ.

On 1st February 2017, F submitted his details  to the RCJ and  was accepted.   RCJ promptly contacted the Pro Bono Unit, to whom F submitted  his Application Form  on 6th March 2017.

On 13th April 2017 he received a reply from Pro Bono,  who advised F that the Pro Bono Unit is unable to provide free advice, because the possibility of winning a case would be slim, taking into consideration that the ICO had already  determined  his case, and that  5 years had already elapsed. 

The nameless, faceless ‘senior barrister’ seem to forget that any assessment  or ‘determination’, issued by the ICO  has no legal value;  it is unenforceable.  Should F decided to take legal action against RBKC, the Court/Judge was in no way obliged to consider anything ‘determined’ by the ICO.  He is entitled to look at the matter afresh, irrespective.

Fact that five years had already elapsed, is irrelevant. The Limitation Act 1980, provides for a period of SIX YEARS for the presentation of a case involving a breach of ‘CONFIDENTIALITY‘,  a provision the ‘senior examining barrister’ chose to ignore, most probably intentionally, as  this might be admitting that it had occurred, thus taking the matter in a different direction.

Pro Bono was fast to remind F that ‘we must emphasise that what he told F was not legal advice from the reviewing barrister or from the Unit’.

The ICO had not ‘determined‘ anything at all.  He merely issued an ASSESSMENT‘ on  23rd January 2012  which stated that ‘As such we have made as assessment that, on the evidence provided, the Royal Borough of Kensington and Chelsea are likely to have complied with the DPA.’

His statement that inordinate time of volunteers would be used up, is nonsense, which was stated, wholeheartedly hoping that F would swallow it, hook, line and sinker, shut up and simply fuck off. Job done. RBKC concerns soothed.

It is unbelievable that a ‘senior barrister’ would NOT be aware of Common Law duty of Confidentiality and  the role that Article 8 of the Human Rights Act may play in   F’s matter.

Yet, all of these are clearly referred to in any law, codes of practice and guidelines governing HIV information.

O6th January 2016, the ICO reneged on his initial ‘assessment’, telling F  that  should information handling be controlled by another legislation, the NHS Statutory Restriction for example,  the matter would be OUTSIDE OF HIS REMIT and any concerns should be submitted to the NHS

Therefore, the ICO was in NO way entitled to consider F’s  request for advice, as  anything concerning HIV, of which he was  made aware, was outside of his remit.  

It can be assumed  that the ProBono, hiding behind  ICO’s questionable assessment, extricated himself  from getting involved in the matter, without  even offering  F to challenge  his statement, wholeheartedly believing that F would swallow it all, swallow it all, hook, line and sinker and go away.  The did not expect him to question it.

F replied on 24th April 2017 and eventually collected his documents from the Pro Bono.

 It can be assumed that  very little of time would have been spent on the matter, to advice F if was on the right track or not.  After all, this was all F was asking for, so that he may/may not proceed with his Litigation in Person efforts.

The ‘senior barrister’ whilst considering F’s concerns, should have asked a very simple question ‘Where is F’s explicit CONSENT?’  There is NO such a thing.

F replied  on 24th April 2017.  The Pro Bono replied on same day, offering him the opportunity to complain about the conduct of the review.  Interestingly, he failed to offer this opportunity to F in his first reply.

The whole episode of seeking impartial, independent, unbiased legal advice, was nothing nothing like it.  It all turned out to be biased in favour of RBKC,  The Two RCJ student lawyers, who should have provided practical advice on how to proceed further,  were very unhelpful during F’s second appointment.  Instead of offering advice, they were both rather officious, intimidating, trying very hard to highlight  the negative aspects of LiP,  attempting to convince F NOT to proceed any further,   saying that RBKC could provide witnesses.  Witnesses to what?  An event which had NEVER happened before?  We understand that there has never been a complaint/case brought against anyone since the recognition of the HIV virus, that this information was disclosed without explicit consent to do so.   

Examples of cases relating to the disclosure of HIV status,  are Z v Finland, I v Finland and Brent v Mr N&P.

 

 

 

 

Health Care Professional Council – HCPC

In 2012, the Health Care Professionals Council, HCPC, became the Regulators for Social Workers.   These highly trained SOCIAL CARE professionals are now lumped together with ‘Art Therapists’,  ‘Podiatrists’ and other questionable ‘professions’,  who  have no, or very little  professional, let alone the complex legal responsibilities to  the service users.  

HCPC should perhaps invest in  copy of  Brayne & Carr  “LAW for Social Workers”, which clearly define Social Workers legal responsibilities  and tasks involved in both Child and Adult Social Care.  HCPC would  not be making such crass, off the cuff, unjustifiable  statements, as they have made in F’s case.

Sadly, this page demonstrates the fact the the HCPC are NOT fit for purpose to get involved in matters concerning the complex professional legal responsibilities of the newly registered Social Workers.

The ONLY matter HCPC should have got involved in, was to satisfy themselves that Mr Leak,  F’s  Social Worker had the proper legal  AUTHORITY to permit unrestricted access by others  to  F’s Confidential file, and allow an  indiscriminate cull of 146 Confidential documents, some containing details of F’s  HIV+  status and clinical information about the condition.

HCPC told F that they contacted the RBKC and the LGO,  in their ‘investigation’ of his complaint against his Social Worker.   This  was irrelevant, as both have NOTHING to  do with F’s complaint.  It is a sign of poor understanding of the matter, or perhaps, more likely, intentional, agreed  obfuscation, to divert the course of investigation.

Yet, from what HCPC told F, it would appear that Mr Leak, the Social Worker, for some obscure reason,   was not even made aware of the complaint, let alone asked by HCPC for his statement of the sequence of events and more importantly, to produce a copy of the AUTHORITY to permit access to F’s file.   

The ICO’s ‘Data Sharing Code of Practice’, is clear that the owner of the information must make sure that he is PERMITTED to share the information. 

What was Mr Leak’s involvement in the disclosure of  F’s HIV+ information without consent or knowledge, contrary to F’s May 2010 Amendment to his Information Sharing Agreement?

Taking into consideration what HCPC told F, most probably NONE AT ALL; as addressed on the Disclosure page.

On 8th December 2011, the Local Government Ombudsman, LGO, informed F that he had received copies of his Care Plan Review dating back to 2000.

F was very concerned about this  and asked RBKC for its justification for the disclosure, bearing in mind that in May 2010 he had issued an amendment to his Information Sharing Agreement‘, which requires RBKC to obtain his explicit written consent when a disclosure of his personal information is contemplated. The same amendment instructed RBKC to delete any HIV relevant information from his files.  

Although RBKC  amended F’s Confidentiality Table to reflect the changes, they failed to respond, as requested;  F had no reason to assume that no action was taken, as RBKC had ample time to tell him so.  It emerged much later that this amendment was in fact a ‘Notice‘ in accordance with paragraph 10 of the Data Protection Act, which required RBKC to reply, which they ignored.

In 2013 F learned that Social Workers usually belong to two organisations:  The British Association of Social Workers, the BASW and the Health Care Professionals Council. the HCPC and pay a membership fee to both.  Both produce their own guidelines; the BASW a ‘Code of Ethics‘ and the HCPC a  ‘Guidance on Confidentiality’.  The HCPC issues a ‘licence’, which entitles them to call themselves a ‘Social Worker’.  BASW  told F  later that  HCPC, became the Regulator of Social Workers in 2012 and they should deal with any complaints.

On 21st  January 2013 F asked HCPC for  information relating to Social Workers’ obligation relating to disclosure of HIV+ status and relevant clinical information.
In its reply dated 24th January 2013,   HCPC told him  that it  is not responsible for  setting the levels of Social Workers’ responsibilities.  He was sent ‘How to make a complaintleaflet.

Indeed,  HCPC are NOT responsible for setting anything.  This is defined by LAW and various CODES OF PRACTICE,  fact carefully omitted by Ms Jones, the 1st HCPC ‘Case Manager’  in her reply. 

This was a crucial stage of the ‘investigation’.  HCPC’s  ethos that ‘we are responsible for protecting the health and wellbeing of people who use the services of registered professionals’; and the Social Workers’ legal obligation to keep his clients’ “information safe and Confidential at all times”, went out of the window.

At this juncture,  obfuscation and distortion of  the course of investigation kicked in.  Protection of the ‘Registrant’, rather than the complainant’s concerns  became of paramount  importance.

Although HCPC told F  on  23rd July 2013, that  there may be RBKC’s internal administrative faults,  relating to information security and its handling procedures,  this should have  had NO influence on F’s Social Worker’s legal obligation to keep F’s information ‘safe and confidential at all times.’  

It was Mr Leak’s  responsibility to ensure that only he and those approved by him, had access to F’s file.  Electronic file, held on RBKC computer system, accessed ONLY by those authorised by Mr Leak or his line managers.  Paper files, these should be kept under lock and key at all times and subject to same authorisation.  He should have ensured that password, key and combinations were known only to those entitled to know them.

It  may be true that Mr Leak was NOT responsible for the actual disclosure of F’s information, but he was  guilty of granting access to F’s information without any proper legal grounds to do soAlthough RBKC claimed that a  ‘formal request’ existed, they were unable to provide a copy, when asked, as addressed on the Disclosure page.

The ONLY document relating to request for  documents and information is LGO’s letter dated  24th August 2011 which stated that the LGO  ‘..would be grateful if you could provide me with copies of all the assessment documents for this matter…’  This is merely a ‘request‘, because that’s  all  the LGO could issue at that time.   Should RBKC refused to provide this information, on the grounds of ‘Confidentiality‘,  a process  exists at the LGO,  to formalise the request, by  LGO obtaining  a Court Order, to compel RBKC to produce these documents/information, should the LGO deemed it so essential to have these documents/information.  This is discussed on the ‘Powers of the High Court‘ page.

Ms Jones, HCPC’s 1st ‘Case Manager’ to deal with F’s concern,  chose NOT to tell F that Social Workers must follow NOT only the HCPC’s own ‘ Guidance to Confidentiality‘, but also the Data Protection Act,  Department of Health ‘Data Protection Act -1998 -Guidance to Social Services‘ and  the   ICO Data Sharing Code of Practice‘, which puts the onus on ensuring that  the holder of the information is responsible to ensure that he can disclose the requested information.

Section 4 – Data Sharing and the Law  of this Code clearly states that note MUST be taken of any existing ‘STATUTORY RESTRICTIONS’, which may influence the handling of specific information.  Needless to say, that Article 8 of the Human Rights Act should also be considered.

Social Workers are also obliged to follow  Department of Health ‘Confidentiality – NHS Code of Practice’, which  contains  the relevant ‘STATUTORY RESTRICTION’.  Para 46 – Legal Restriction on disclosure‘.  This  is underpinned by  a standalone legislation, the NHS(Venereal Regulations)1974, which controls the handling of a VERY SPECIFIC KIND OF INFORMATION – THAT RELATING TO SEXUALLY TRANSMITTABLE DISEASES, INCLUDING HIV‘.

Had Ms Jones stated these obligations, F may have  asked relevant questions, which may have taken a completely different and unpredictable  direction, out of Mr Jones’ control.  This she obviously wanted to avoid at  any cost.

On  19th February 2013 F submitted a complaint against his Social Worker, for allowing unauthorised disclosure of his HIV+ relevant medical information  without  F’s consent, as stipulated in his May 2010 amendment to his ‘Information Sharing Agreement‘, which clearly requires an explicit written consent to disclose any information.

HCPC replied on 28th February 2013, telling F that as the complaint stands, it  does not comply with its ‘Complaint acceptance  rules.’  HCPC asked for more information.

The ONLY information  F should have been asked to provide, was a copy of his CONSENT.   Perhaps NOT even this, as  Section 4 of  ICO  ‘Data Sharing Code of Practice’ puts the onus on the information’s  holder to ensure that he has the powers/authority to disclose the requested information.

It was Mr Leak, F’s  Social Worker who should have been asked to provide a copy of F’s explicit written consent to disclose his HIV+ relevant information. 

Should  a CONSENT NOT exist, provide a credible legally sound document, compelling Mr Leak to afford unrestricted access to F’s file and indulge  in an indiscriminate cull of  146 documents from his file. Including the disclosure of his HIV status.

The ONLY document relating to the provision of documents, was a REQUEST letter to RBKC  from the LGO, which has NO legal agravitas.  It is merely what it states, a ‘REQUEST’ for copies of documents.

According to information received, this credible document could ONLY be a Court Order, specifically ordering the disclosure of F’s HIV relevant information.   This would be very problematic.   Although  a Court Order could technically  be issued for this specific information,   it could only be issued if  criminal proceedings were in progress against an individual.  There could not be any reason to issue such an Order in a Civil matter.

This  NEVER HAPPENED,  therefore there was NO authority of any kind to allow/compel Mr Leak to  permit access to F’s file and be impotent in preventing indiscriminate cull of 146 documents from F’s file.

Had it happened, the matter might have been resolved in February 2013, as F would have taken the appropriate action.  Instead, it has dragged on until this date.   Very convenient for  Mr Leak and  a resounding  success for the HCPC in protecting him from any action.  Not only Mr Leak, but also RBKC, who so far have got away with everything.

 Despite Ms Jones’ obvious confusion, the Complaint form,  clearly states that the Complaint is against an individual; a Social Worker properly registered with  HCPC.  NOWHERE does F claim that RBKC or indeed the LGO was in any way complicit in the disclosure.

It is clear that Ms Jones  was determined to keep Mr Leak out of the ‘loop’ by  not asking him for his version of events and indeed to provide the crucial document.

Likewise, HCPC’s  query as to what  the ICO  decided in F’s complaint against  RBKC, is also  irrelevant.  It came to light much later, when the ICO admitted that should handling of  specific information  is protected by legislation different from the DPA, it is outside of his remit.  In F’s case, it was/is for the NHS to consider.

On 17th July 2013 F received a reply from Mr Kabir Siddigi,  in which he stated that Mr Leak WAS NOT responsible for the release of the information sent to the LGO.

Erroneously, he claimed that F’s concern seem to relate solely to the manner in which the Royal Borough of Kensington and Chelsea have handled his information.  NOT so.  F was NEVER concerned what RBKC did or did not do.  This is irrelevant.  F was always concerned about Mr Leak’s role in the disclosure.  Had Mr Leak NOT allowed access to F’s information,  there would not have been anything to disclose and this page would not exist.

In a reply to F dated 23rd July 2013, Mr Siddiqui showed that he is indeed very  confused individual.   F has always  been concerned  as to what Mr Leak had done, as he is registered with HCPC.  Mr Siddiqui   fails to appreciate that Mr Leak is an independent legal entity, with his own legal obligations to his clients.   Whether there is a fault in RBKC’s  administrative process of handling confidential client information is irrelevant.  The onus to keep F’s ’information safe and confidential’, is on Mr Leak, who is obliged by his licence to ensure that this is so.

As far as RBKC  compliance with rules relating to confidentiality is concerned, these come under the  allegedly watchful eye of the ‘Caldicott Guardian’, who was NOWHERE to be seen or heard.

On 25th July 2013 Mr  Siddiqui stated  that RBKC had told him that  Mr  Leak was NOT  directly responsible for the disclosure of F’s information to the legal team.  This is utter nonsense.  F’s file was in Mr Leak’s custody,  who was the only one who  could grant access to it.  Who than, had the God like powers to access this information and remove whatever they felt fit?

He informed F that he was told by RBKC that if a ‘formal request for information from the legal team’ existed, it would render Mr Leak impotent from preventing access to F’s file.  Apparently, it would be the Service Manager who could  indiscriminately remove whatever she felt fit.   RBKC also explained to HCPC that its legal team has access to all documentation which they  need for their role.  IN THEIR ROLE AS A WHAT? 

When F asked RBKC to provide a copy of this crucial document, he was told that RBKC does not have a copy of it.

It can be freely and rightfully alleged that RBKC dreamt up the notion of the document’s existence,  which was a blatant attempt to divert the investigation in a different direction, thus perverting  the course of  justice in a proper investigation of F’s concerns. 

Taking into consideration that HCPC conveniently failed to ask for a copy of this important documents, it can be alleged that they colluded with RBKC,  not to question the existence of this important document.

Relating to access to F’s file by  a ‘legal team’ to obtain and  disclose his medical information, including his HIV status without consent or knowledge, F sent on 10th September 2013 an FOI Request to most London and national local authorities. Those who replies, being the majority of those asked,  stated emphatically that NO legal team would enjoy such privilege without a specific Court Order requesting the information, particularly F’s HIV status.  It is highly debatable, taking into consideration the legislation protecting this specific information, that  a Court Order compelling the disclosure of F’s HIV  status would ever be issued.

F realised that RBKC’s statement to HCPC was factually incorrect, putting forward fallacious arguments.   On 10th  October 2013,  F submitted an FOI  Request to obtain copies of all correspondence exchanged between HCPC and RBKC and LGO.

In their reply dated  5th November 2013  HCPC refused. to provide the requested information, on the grounds  that it would prejudice their ‘investigation’.    F was told that  HCPC had contacted the LGO and RBKC. It is evident that the HCPC  went to great lengths to justify NOT  to provide these documents, which may confirm existence of some collusion, to obstruct process of F’s complaint..  

HCPC’s handbook states that ‘misconduct’ of Registrants is investigated,  yet  Mr Guthrie, HCPC Director, when asked on  could not provide  HCPC’s definition of  ‘MISCONDUCT’.

Bottom line:  Where is the legally sound document which unequivocally compelled Mr Leak to grant unrestricted access to F’s file, without his CONSENT, and be powerless in the removal of 146 confidential documents,  containing details of F’s HIV+ status and relevant clinical details?

 

Parliamentary and Health Service Ombudsman – PHSO

Those not familiar with ICO and PHSO machinations, please see this independent comment.

Likewise,  have a look at how the PHSO operates.

In this respect,  see the post dated 3rd December 2018, dealing with the occasions when the PHSO ‘ gets it wrong’.

In the post, we re told that we may challenge  PHSO’S  ‘DRAFT’ decision in the matter.   However, we recall that F was NOT given this opportunity.  Ms Bowes skilfully bypassed this stage.

When  the ICO produced his Review, he suggested  to F that  should he be unhappy with the outcome, he may complain to the Parliamentary & Health Service Ombudsman, (PHSO).

He was not at all obliged to do so.  He thought of asking his MP, SIr Malcolm Rifkind, QC to intercede on his behalf with  RBKC. Is it not our MP’s job to assist in resolution of problems with local authorities.  F hoped, rather foolishly, that Sir Malcolm would assist and resolve the matter at a local level, to avoid any possible embarrassment to RBKC.   MPs, particularly those of the same political hue as the authority, do not interfere in  local matters matters,  which may create an embarrassing situation. 

F  was given to understand that complaint to the PHSO can only be made through his MP, Sir Malcolm Rifkind.

On 19th October 2012, F submitted his complaint to Sir Malcolm.. It would be naive to think that he, a well known QC, was not aware of the basic principles of CONFIDENTIALITY.  a term everyone was at great pains to avoid, for fear of opening a new can of worms, which might lead the matter in an unpredictable direction.  He preferred  to just countersign F’s complaint and pass it to the PHSO.   Job done, any embarrassing questions avoided.

On 31st October 2012 he received PHSO’s   acknowledgement of his complaint.  F provided additional information and documents to support his complaint.

On  22nd February 2013 F received  PHSO’s decision.  Ms  Bowes merely reiterated the ICO’s assessment.

It is evident from  F’s complaint and subsequent correspondence with the PHSO, that he  was  unaware at that time of the NHS Statutory Restrictions on data handling,   ICO’s “Data Sharing Code of Practice”, Department of Health “Confidentiality – NHS Code of Practice”, DPA’s paragraph 10 and HRA’s article 8.  However, the PHSO, being the Health Service Ombudsman, should have been well aware of these important Codes.

It can be alleged that the PHSO chose NOT to introduce these into the equation, as they were not obliged to do, to avert any possible return to the ICO’s assessment.

Ms Bowes states  in her ‘decisions;, at ‘Our role’  that ‘we could only take further action if there was an indication of administrative fault by ICO which affected you and had not been put right by ICO.’

It is clear that Ms Bowes chose to ignore the fact that F’s information was not only of  ‘Medical Confidential‘ nature, but also  about his HIV+ status, which must be handled in accordance with  existing legislation, codes and guidelines.

ICO’s administrative fault was that he chose to ignore RBKC’s willful and wanton disregard of F’s right to CONFIDENTIALITY.  Moreover, the role played by the Statutory Restrictions on data handling, applicable to HIV relevant information  and Article 8 of the Human Right Act.  The ICO issued his assessment, without knowing the nature of the disclosed information.

Furthermore, RBKC chose to ignore all of the 7 Caldicott Principles,  governing handling of F’s medical information.

In respect of  HIV relevant information, the  ICO should have advised F that any concerns about its disclosure in breach of the NHS Statutory Restrictions on data handling, should be addressed to the NHS, as the legislation is outside of ICO’s remit.  This was confirmed to F by the ICO on 6th January 2016 in his response RCC0453466.  That should have been the extent of ICO’s response.

On 24th August 2011, the LGO asked RBKC, ‘I  would be grateful if you could provide me with copies of all the assessment documents for this matter so that I may consider the complaint, along with any comments the Council wishes to made.’

In her ‘decision’ Ms Bowes stated that  ‘ICO told us 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 beached 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.  This statement is so absurd, to be outside the Realm of sanity.  How could ICO make such a statement, without knowing the exact nature of the information disclosed to the LGO. 

The ICO’s statement and the fact that PHSO echoed it, endorses  both organisations the poor understanding of the matter and the relevant legislation.

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+.

Anyway, any disclosure of information must be compliant with the ICO’s Data Sharing Code of Practice, where section 4 – Data Sharing and the Law is very clear what process must be followed.

At least six documents sent to the LGO contain information relating to F’s HIV+ status. The progress of the condition, the medication he must take to stay alive and the inevitable side effects he suffers as a consequence. 

It must also be remembered that had the LGO  asked for F’s HIV related information, RBKC was not compelled to provide it, as it should have availed itself of paragraph 29-(7) of the Local Government Act  1974, which provides an exemption.  

On 17th May 2013, F sent additional information to the PHSO, so that his complaint could be reviewed.

On 7th August 2013, when F learned of the existence of the Statutory Restrictions he wrote to Mrs Harrison, pointing out the PHSO discrepancy. 

A computer generated acknowledgement was received on the same day. 

On  8th June 2017 we contacted the GMC about the NHS Statutory Restrictions, who referred us to the NHS.    As the GMC are the Regulators of the  medical professions, we hoped they may give us some assistance.

On 22nd June 2017  NHS England was contacted.  They told us  to contact the  PHSO.

On  26th June 2017, the PHSO was contacted and  their reply dated 21st September 2017 is clear. 

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Department of Health and Social Care – DHSC

Note:  Due to this Department’s  unreliable and unorthodox processing of Requests for clarification, including Freedom of Information Requests, documentary evidence, especially of the submitted Requests, in  not available.  In fact, there is NO credible evidence that we have sent anything at all. 

Although the  Department’s processing has become ‘automated’, it is far from satisfactory and the concerns are addressed on the DHSC  Contact Us page.

The Department of Health is in NO way involved in the disclosure of F’s HIV status and related clinical information.

However, it  can be criticised  for not being able to provide  proper  clarification of the  NHS(Venereal Regulations)1974, which provides an unique exception to  the very strict medical Confidentiality  in permitting disclosure of STD related  information, including HIV,   for specific purposes and  to specific medical professionals.

It was the ICO, who advised us,  as late as 6th January 2016, that the NHS should deals with any breaches of this Act.  However, confusion also exists at that Department.

In 1986  the Department   issued the LASSL-8-1986, which  in section 4 deals with who should receive HIV related information.

In 2000 it issued the ‘Data Protection Act 1998 – Guidance to Social Services’.   This is an orderly guide, taking the Data Protection Act as it basis, aimed at those NOT   legally trained.  This being the majority of Social Workers, to whom this guide should be a great help.

It addresses  and explains in a simple language the DPA as it applies to various aspects of Social Care and how relevant documents should be treated.

However, it fails to even mention  the  existence  of the various  Statutory Restrictions on data handling, including  those regulating handling of CHILD’s  personal information and the NHS Statutory Restrictions, which control the handling of STD, including HIV, information.

In 2003 it issued theConfidentiality –NHS  Code of Practice, which mirrors these   Statutory Restrictions in paragraph 46.

However, utter confusion is created by the fact that only the Act, but also the Code of Practice, fail to define what may constitute a breach of these Restrictions,  who should receive any complaints about the breach and what form the complaint should take.  Most importantly perhaps, it does not define the period of time within which any complaints must be submitted.

In 2010 the Department issued  new guidelines for the conduct of Adult Social Care  Assessment, the “Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care
Guidance on Eligibility Criteria for Adult Social Care“, addressed on the Assessments page.

RBKC chose to completely  ignore provisions of all of these guidelines, in processing F’s identifiable information.

On the whole, the Department have been very helpful if providing us with clarification of various points relating to legislation within DHSC’s remit.

However, there is an ongoing research relating to the way members  of the Public may contact the DHSC.   At present, any communications can ONLY be sent to the Department  through  their ‘Contact Us’ webform.

 

Information Commissioner – ICO

Those not familiar with the ICO’s machinations should perhaps read this.

It will become evident  that what should have happened, is very different from what had actually happened.

It is clear that the ICO exerted utmost of effort to avoid mentioning CONFIDENTIALITY, CONSENT, STATUTORY RESTRICTIONS ON DATA HANDLING AND ARTICLE 8 OF THE  HUMAN RIGHTS ACT.   Perhaps he assumed that as these finer intellectual and ethical considerations are OUTSIDE OF HIS REMIT, he was in no way obliged to take them into consideration.

Moreover, the ICO chose NOT to refer to his own Statutory Code, the ‘Data Sharing Code of Practice’, where section 4 – Data Sharing and the Law, puts the onus on legality of disclosure on RBKC and the possibility that some data processing may be  governed by, for example  Statutory Restrictions, which are OUTSIDE OF THE DPA, or subject to CONFIDENTIALITY,  to avoid  F from taking his concerns to a new, unwelcome and perhaps embarrassing level.

Unhappy with RBKC’s obvious failure to comply with F’s May 2010  Amendment  to his Information Sharing Agreement and  their justification of  disclosure of F’s information to the LGO,  on 5th  January 2012 F submitted a request to the ICO for his opinion in the matter of disclosure of his information without his consent or even knowledge.

At the time of his request, F was NOT aware what was actually disclosed by RBKC, that came to light on 11th  February 2012.  He was not even told by RBKC that any documents were sent to the LGO, let alone asked to provide his CONSENT,  as required by his Information Sharing Agreement.

In his request F quoted portion of his  May 2010 amendment to his ‘Information Sharing Agreement‘, clearly  stating that his HIV+ status may have been disclosed without his CONSENT and/or knowledge.

F did not deem it necessary to tell the ICO about the instructions relating to the deletion of his information, as he thought that this was already taken care of. But perhaps some may have still remained on RBKC files.

In his ‘assessment’  dated  23rd January 2012, without asking any questions, or obtaining  details of the actual  information disclosed to the LGO,  ICO’s Ms Sacha Powell  merely  endorsed RBKC’s justification and swiftly closed the case, wholeheartedly hoping that F would swallow the ‘assessment’, hook, line and sinker, shut up and go away. 

Therefore, Ms Powell did not deem it necessary to offer F the opportunity to challenge the assessment, as she  should have done.

Even if the ICO offered F the opportunity to challenge the ‘assessment’, there is NOTHING that the ICO could have done to provide  REMEDY to F, whatever the outcome, as this is also outside of the ICO’s remit. 

The DPA  can only provides resolution in respect of the data controller, RBKC in F’s case.   The ICO cannot compel RBKC to even offer an apology, let alone any equitable compensation for the distress and concern the matter may have caused him.

In this respect, F must avail himself of paragraph 13  of the DPA and go to court.  Where,  the Judge is in NO way obliged to consider the ICO’s ‘assessment’, as it has NO legal value.  He would consider the matter anew, from a legal point of view, discarding anything stated by the ICO.   It is after all, a mere ‘assessment’, stating whether RBKC   had ‘likely’ or ‘unlikely’ complied with the DPA.

Considering the subject article, it is no surprise that Ms Powell chose to ignore the provisions of ICO’s  ‘Data Sharing Code of Practice – section 14- Data Sharing Agreements,  which states that ‘The  ICO will  take this  into account should it receive a complaint about  data sharing”., when considering F’s  statement about his May 2010 Amendment to his Information Sharing Agreement.

Considering the fact that ALL information in service user’s file held by his Social Worker is deemed ‘CONFIDENTIAL‘, very much like GP’s file on his patients, it must be treated as such.

In F’s case some of his information is  of NOT ONLY SENSITIVE, but ALSO of CONFIDENTIAL MEDICAL nature.

On seeing that F’s not only medical but also more seriously, his  status  HIV may have been disclosed, Ms Powell should have realised that  a disclosure of  a highly CONFIDENTIAL medical information may have occurred, as  referred to ICO’s DPA complaints casework,  page 5 – operational priorities – evidence of unauthorised disclosure of medical information and take further action.  He should have perhaps asked RBKC for details of the information disclosed to the LGO, which were at that time unknown.

The extent of the disclosure came to light only on  11th February 2012almost a month  after the ICO’s ‘assessment’, when F received  from RBKC the requested documents sent to the LGO.

It  became clear that the 146 CONFIDENTIAL documents, were culled  from F’s file, indiscriminately, without reason or purpose.   This is confirmed by the ABSENCE of a document which should have listed all the documents, the authority for their disclosure without consent and the reason/purpose for their disclosure.  This is required by the legislation,  paragraph 6.22 of the Department of Health Guidelines – ‘Data Protection Act 1998 – Guidance to Social Services, and  the Caldicott Principles‘.

On 9th July 2012  ICO responded with his Case Review.  Mr Gray merely reiterated Ms Powell’s  earlier  decision.  He stated that the disclosure of his  HIV status was  in order, should    RBKC merely believe, on a whim,  acquired during a momentary loss of sanity, that the disclosure was NECESSARY, without any reference to governing legislation, guidelines and codes of practice. How very convenient for all of them.

On 11th May 2013,  F asked Ms Powell to confirm that the ‘decision’ would have been same had she were to consider that the disclosed information was of ‘CONFIDENTIAL MEDICAL’ nature.  Ms Powell chose NOT to reply.  

The ICO certainly reacted swiftly and properly in September 2015 when  an ‘accidental’ disclosure of  email addressed of patients  by a Soho HIV Clinic had occurred.

 However, in F’s case, the ICO tried his hardest NOT to admit that  at least  breach of CONFIDENTIALITY  had occurred; in addition a breach of the NHS Statutory Restrictions on data handling and Article 8 of the Human Rights Act.

ICO should have also realised that  F’s Amendment was in fact  a NOTICE in accordance with paragraph 10 of the Data Protection Act.  ICO’s own ‘Paragraph 10 procedures‘ are clear what action should be taken. 

It states that F was not obliged to refer to  paragraph 10 in his Notice,  nor provide it in a specific format, as it is undefined.  It may be as simple or as convoluted as he might have felt fit.  The onus to recognise the NOTICE was on RBKC and react accordingly.

In respect of the Notice, the ICO should have asked RBKC to provide a copy of its reply to F,  which RBKC was legally obliged to provide, in accordance with paragraph 10-(3) of the DPA.

Had the above happened, he would have realised that RBKC breached  their obligation and therefore committed an offence and subject to further  action.

CONCLUSION: The true events described above endorse  the comments made it the article referred to above.

 Ms Powell should have informed F that if HIV relevant information was disclosed, he must address his concerns to the NHS, as this specific information is protected by NHS Statutory Restrictions on data handling, which are OUTSIDE OF THE ICO’s REMIT, as confirmed  by ICO  at a much later date.

It is clear that Ms Powell  intentionally chose NOT to tell F that RBKC must follow the ICO’s ‘Data Sharing Code of Practice’,  a Statutory Code, which in section 4 clearly address the responsibilities relating to disclosure.   Had she done so, the matter may have taken an unexpected turn and create an embarrassing  situation to RBKC, which the ICO  tried so hard to avoid.

In this context it may be alleged that ICO may have been influenced by some unsavoury,  unethical and amoral dark forces, to ensure that F’s concerns were stifled, and he ended up in a legal cul-de-sac and give up.. Hence the lack of opportunity to challenge the ‘assessment’.

In respect of the ‘case review’, taking the lead article  into consideration, it would be utterly absurd to even think that Mr Gray, Ms Powell’s work colleague, would  overturn or negatively comment on her ‘assessment’.

This effort, was utter waste of time, taking into consideration the nonsense cited by Mr Gray.  Maybe, as result of his abysmal incompetence and a lapse of sanity, or just in order not to upset the apple cart and Ms Powell.  Fortunately, Mr Gray’s ‘case review’ is as WORTHLESS as the original ‘assessment’.  In fact, not worth the paper it is printed on.

Of interest is ICO’s reaction in 2015, when  email addresses of Soho HIV clinic were compromised.  The ICO took a dim view of  the event, merely because the subscribers to  the Clinic’s Newsletters were made aware of other subscribers’ email addresses.  THAT’S ALL.  IN NO WAY these addresses positively identified the individuals.   It was merely because of the implied association between the the recipients and the HIV Clinic that the ICO  thought that this ONLY may cause unnecessary anxiety and distress to the recipients. 

Had the emails  were sent by say, TESCO, the event would have passed by, unnoticed. There would not have been the frenetic media/public  frenzy about the event.

Whereas, in F’s case, he could not care less that F’s  identity, full details of his HIV diagnosis and clinical details of his condition were disclosed without F’s consent/knowledge and most importantly, without any legal obligation on RBKC to do so.

It is distressing to see that the ICO failed to take account of F’s Information Sharing Agreement, which not only requires that RBKC seek his CONSENT, but also that they should have removed any HIV related information.

Information, RBKC were NOT entitled to have in the first place.

Bottom line: The ICO must NOT be trusted to provide  credible ‘assessments’.  Thank God that they  are worthless, having NO legal gravitas whatsoever.  Sad, but true.

 

 

 

 

Royal Borough of Kensington & Chelsea – RBKC

Ms Stella Baille’s  responsibilities, among other things  as  RBKC’s Director of Adult  Social Care and their CALDICOTT GUARDIAN,   is to ensure that RBKC employees comply with all the relevant legislation, procedures and codes of practice,  in  not only carrying out assessments, but also handling  of service users’ personal confidential information.

Had RBKC responded to F’s  May 2010 amendment to his ‘Information Sharing Agreement’,  as requested to do,  he would not have had   reasons to complain about the willful and wanton  disclosure of his confidential medical information about his HIV+ status without any legal requirement to do so.  This Blog would not exist.

RBKC  amended F’s ‘Confidentiality Table‘,  to reflect the  instructions that his explicit written consent  must be sought, when a disclosure of his medical information is contemplated, including his HIV+ status. NO action was taken regarding the removal if his HIV+ specific information from his file.  There was NO communication between F and RBKC on this matter.   Although RBKC failed to reply,  which they had ample time to do, F  had no reason to assume that this  was NOT carried out.  As it transpired later on, a very foolish assumption, indeed.

Ms Jean Daintith, RBKC  Executive Director for Housing, Health and Adult Social Care told F in a letter dated  18th May 2011 thatAll our procedures and policies are in line with the Department of Health guidelines and there is no evidence to suggest that our service users are put at any risk as a result of them.’

Being aware of these is one thing; following them is another.  However, there is NO credible evidence that RBKC followed any of them.  On the  contrary, they were ignored with an arrogant indifference,  with the knowledge that there is NO independent oversight or audit.  In fact, RBKC can and do, exactly as they feel fit.  They have done so before 2010 and doing so today, a year after the GRENFELL disaster, under  the new  leadership of  Dr Quirk.

It can be alleged that RBKC failed to follow :

Common Law Duty of Confidentiality

Department of Health ‘Data Protection Act 1998 – Guidance to Social Services

Department of Health ‘Confidentiality  – NHS Code of Practice

Department of Health’s ‘Prioritising need in the context of Putting People First: A whole system  approach to eligibility for social care – Guidance  on Eligibility  Criteria for Adult Social Care – 2010‘ 

Local Authority Social Services and National Health Service Complaints(England)Regulations 2009

ICO’s ‘Data Protection Act 1998

ICOs’ ‘Data Sharing Code of Practice

Caldicott Principles

Article 8 of the Human Rights Act and the

NHS Statutory Restrictions on Data Handling, which are referred to in paragraph 46 of the ‘NHS Code of Practice’.

It can be alleged that RBKC  failed to properly address:

1. Amendment to  ‘Information Sharing Agreement

In October 2008,   RBKC ignored basic principles of  Confidentiality  and the possible unpredictable  consequences this may cause,  when considering a new  email signature block. Use of it by F’s Social Worker, caused F unnecessary anxiety and concern. As a result of his complaint, the text of the signature black was changed.  F was told that the offending email was removed.  This is a very naive assumption, taking into consideration how the email system works and the various obligations to keep copies and backups, that ALL copies were removed.  In fact, NOBODY is truly aware how many copies of any message exist.

To ensure that in future his information was handled  in accordance with his wishes, on 10th May 2010,  F issued an amendment to his ‘Information Sharing Agreement, which was later recognised to be a ‘Notice in compliance with paragraph 10 of the Data Protection Act.

2. Collection of personal confidential HIV related information

3.  Conduct of Assessment for Adult Social Care service

In March 2010 RBKC carried out F’s Financial  Assessment.

In October 2010 RBKC decided to carry out an  ASSESSMENT of his eligibility for adult social care.

F was unhappy with RBKC’s justification  of their non-compliance with the Department of Health  Guidelines,   while conducting his Adult Care assessment for the provision of a domestic help.

 When no satisfactory resolution was reached,  on 18th May 2011, F  was told to escalate his complaint to the  Local Government Ombudsman,  LGO; which he did on 12th July 2011. 

4. Complaint to the Local Government Ombudsman – LGO

5. Disclosure of F’s HIV relevant clinical information

6. Deletion of information 

7. Non-compliance with Notice under Section 10 of the DPA

8. Non-existent ‘formal request’ for F’s information

 

 

Assessment Process

In October 2010, RBKC decided, for the first time since F left St John’s Hospice in 2000, to undertake a re-assessment of his eligibility  for RBKC’s contribution of £ 43.02 per week, towards the cost of his domestic cleaner, to assist him with mundate domestic chores, F was unable to effectively perform, a a result of a bad stroke in 2000.

In would have been prudent, in order to void unnecessary duplication of effort, and in line with paragraph 86 of the assessment guidelines, to take into consideration F’s  October 2008 DWP re-assessment  for his Disability Living Allowance, DLA, which assessed very much the same activities, but in a greater detail, than the  RBKC assessment..  

In the DWP assessment, F completed a complex 37-page questionnaire, providing extra information, where necessary.  The document  was commented on and countersigned  by his clinical specialist and his GP.  DWP renewed his DLA at the same rates, for indefinite period.  As he is almost 75, and highly unlikely to get any better, it is unlikely that he will be reassessed again.

In this context, just recently, on  1st June 2018, F asked Department of Health and Social Care, for clarification, regarding his DLA  and ASAQ assessments.

F received a reply on 5th July 2018, telling him that it is local authority’s responsibility to manage its funds according to local needs.

However, as this did not happen, F should have been given the opportunity  to complete his ‘Assisted Self Assisted Assessment Questionnaire, the ASAQ, ahead of the actual date, as he should have been in accordance with paragraphs 84/147 of the Department of Health guidelines.

Had F been given this opportunity, this Blog would NOT exist.  as F would have completed his ASAQ, provided any additional information, verified and signed the document, confirming its veracity.  He would NOT have had any reason to complain, as he would have  FULLY completed the ASAQ, by himself.

In October 2010, an appointment for assessment was made and Mr Williams, a Social Worker not known to F,   came on two occasions,  The 1st visit on  21st October 2010, was purely of a ‘social’ nature;  NO assessment matters were discussed.  Mr Williams DID NOT bring any papers with him.  Yet, the ASAQ was signed by Mr Williams on this date.

On the 2nd visit on 3rd NOVEMBER 2010, he brought with him some papers, which he did not offer to F.  Mr Williams asked F some questions,  suggested  answers to them; made some notes and left soon afterwards. 

At  NO TIME was F given  the form to review  and sign it, confirming the veracity of the details.  F had NO idea how the form, had there been one, looked like, let alone what was on it.  Hence the subsequent confusion as to what was used.

On 13th December 2010, Mr Williams,  the alleged assessor, sent F his ‘decision letter.’  Including with it a  copy of the assessment grades and the incomplete,  incorrect and unverified FACE report, unsigned by F. 

Conveniently, and most probably intentionally, in order NOT to alert F to the existence of the worthless ASAQ FORGERY,  Mr Williams decided not to  include with the letter,   a  copy of the the original, incomplete  ASAQ, unsigned by F.  Therefore, F  remained  unaware of its existence. He was firmly convinced that the FACE document was the ONLY assessment document, as perhaps expected by RBKC.

The letter told F that at the Department of Health website he should find more details about  the assessment decision.

This link provided nothing, but a list of  Department’s publications, most already superseded.   However, will little effort he found  the Department’s guidelines relevant to  F’s assessment, ‘ Putting People First: A whole system  approach to eligibility  for social care, Guidance  on Eligibility  Criteria  for Adult Social Care,  issued in 2010.

After studying the Guidelines,  F realised that Mr Williams’s letter failed to  address the following provisions:

Paragraph 84, he should have been given the opportunity to complete the Assisted Self Assessment Questionnaire[, ‘ASAQ’ by himself, ahead of the official assessment date.

Paragraph 86,  assessment should  co-ordinated across local
agencies relevant to the individual. This may mean that the DWP’s DLA  re-assessment in October 2008 should have been taken into  consideration.

Paragraph 106, he should have been told HOW the decision was arrived at.  Was it based on a scoring system, or  what other method.

Paragraph 107, F should have been given unconditional opportunity to ‘appeal’ the decision.

When F queried the fact of the unsigned ASAQ with the Disability Law Service, he was told that  the unverified and unsigned document is unreliable and factually worthless  and should HAVE NEVER been used in the decision process by a ‘assessment panel’ , headed by Ms Caroline Maclean, in deciding F’s wellbeing, independence and quality of life.

When F questioned the unsigned ASAQ with Mr Leak, he was told that ‘it was NOT necessary to obtain a signature, as a Social Worker was present at the assessment.‘  

We asked  other local authorities regarding review and approval of assessment documents and indeed the regular Care Plan Reviews.   We were told that the individuals are ALWAYS given a copy of these documents for their review and signature, confirming veracity of the answers. 

In respect of the missing F’s signature,  F tried to obtain legal guidance on the requirement to sign these kind of documents.   When he could not get anywhere, he asked James Chalmers, Senior Professor of Law, for his guidance.  In his reply, Professor Chalmers confirmed to F that  there was no ‘law’ as such governing ‘signatures’ of documents.

A signature on many documents is merely a result of a custom, to ensure that both parties are cognisant of the content of the signed document.  It prevents any future argument, when either side may dispute  content of the document. 

By the absence of F’s signature, RBKC ended up in an  unenviable situation, unable to provide credible evidence that F had anything to do with the completion of the ASAQ.  It could have been, and perhaps was, completed, signed and dated by whomever, wherever and whenever, scoring the document to arrive at a predetermined  outcome.

In respect of the non-existent offer of an appeal, F was given the most banal and crass explanation:

On 18th May 2011, Ms Daintith, told him that this was NOT required, as he was  already aware of the ‘Complaints process’, as he had complained in 2001. and was given details of the process.  Nothing of the sort.  F was given a copy of a ‘flyer, inviting him to comment  on the service he was receiving.

Anyway, paragraph  107 of the Guidelines clearly refers to the new Complaints Regulations, which in 2009 streamlined the complaints progress. The ‘Local Authorities Social Services and National Health Service Complaints(England)Regulations 2009.

There is NO documentary evidence that F was advised  of these important changes.  Therefore, whatever he was told in 2002, was irrelevant and out of date.   Ms Daintith, in her intellectual myopia  unwaveringly  believed that F would swallow this crap, line, hook and sinker.

To this day, F has  NOT been given credible reason why the above provisions were ignored.

F was surprised at the ‘LOW’ decision expressed in the decision letter.  It was based on paragraph 52  of the guidelines. 

Taking into consideration that, as a result of  bad stroke in 2000, F suffers from progressive peripheral neuropathy,  itinerant vertigo and weakness of his left side, which prevented him from properly carrying out mundane domestic chores.  He was also susceptible to small strokes, TIAs, which could occur  at any time and render him physically weak for a while, or result in a serious physical impairment. These may occur at ANY TIME.  He also suffers from  heart conditions, which required an Open Heart Surgery in November 2018, to replace an aortic valve.

It is absurd to believe that these serious medical conditions, which contribute towards his poor mobility, and inability to cope with chores,  should have miraculously improved between October 2008, the DLA assessment  and October 2010,  the RBKC assessment, when be was graded as ‘LOW‘ in an alleged assessment carried out by  inappropriately qualified Social Worked.   We think that F should have been graded at least ‘MODERATE‘, if NOT ‘SUBSTANTIAL’.

F learned from other local authorities  that individuals  suffering from sensory/physical impairments are assessed by  a properly qualified Occupational Therapist/Physiotherapist, who would be well aware about the impact of F’s  debilitating conditions, and putting aside his HIV status, understand the impact of these ailments on F’s wellbeing, quality of life and independence.   A signature of these professionals on the assessment document was enough to proceed further, without having to present  them to an  ‘assessment panel’, which no authority even had.

On 13th September 2011, Mr Leak told F, that the FACE report was sent to F by Mr Williams on 14th December, 2010, with his decision letter.  This  confirms that a copy of the the incomplete, unsigned handwritten ASAQ, allegedly used during F’s assessment, was NOT sent to F.  This, the cornerstone document of the whole assessment was NOT mentionedMost probably intentionally so as NOT to draw F’s attention to it and perhaps start  unwelcome questions about the ASAQ.

Taking into consideration the number of assessments carried out in one year by RBKC, it would be naive  to think that the  omission of the ASAQ from being enclosed with the decision letter, was an ERROR.  It was most probably NOT enclosed INTENTIONALLY, in order NOT to draw F’s attention to its existence, of which he was UNAWARE, until 11th FEBRUARY 2012.

It must be remembered that at this time F was NOT aware of the ASAQ’s existence, copy of which he ONLY obtained, by chance, on 11th FEBRUARY 2012,  when he received copies of documents sent to the LGO.

Therefore, at a much later date, on 2nd March 2012, F queried Mr William’s qualifications.   It emerged that he did NOT have  appropriate qualifications to carry out  such an assessment.   It also transpired  that the wondrous ‘assessment panel’, created to give a faux gravitas to the assessment process, did not possess any such qualifications either.   It was nothing more than a crass hogs wash.  The members were nothing more than Social Workers, without any specialist knowledge.

On 12th July 2011, F submitted a complaint to the Local Government Ombudsman, LGO.  

At this juncture it must be made clear that F’s complaints to RBKC and eventually to the LGO, were based on the incomplete  FACE document, rather than the ASAQ, of which he was NOT  aware until 11th February 2012.

On 26th January 2012, F asked Mr Leak, why was he NOT offered the opportunity to complete the assessment document ahead of the assessment date.  F claimed that there is no difference in the  meaning, of paragraphs 84/ 141-151.

Mr Leak chose to completely ignore this question and  sent F a blank ASAQ form, explaining the difference between the FACE and the ASAQ.  

The reason why F was not offered this opportunity, remains unanswered to this day.  However, it may be alleged, that the purpose was, so that a forged ASAQ could be produced, to deprive F of his contribution.

CONCLUSION:  There is no credible evidence that F participated in the completion of the  incorrect, unverified and unsigned  assessment document, ASAQ, allegedly used in F’s assessment, carried out by a Social Worker without any  additional professional  knowledge to enable him to  do so. 

It must also be appreciated that events PRIOR to the issue of the ‘decision letter’ are of relevance, as RBKC hoped that by NOT giving F clear opportunity to challenge the outcome, he would accept it and move on.    How many other people were assessed in a similar manner and suffered  the same fate?  Who knows? RBKC, of course.

The ASAQ is unreliable, legally faulty document, which should have NEVER been used in any decision process.  It should be declared NULL  and VOID and appropriate action taken, as mentioned on the ‘Desired Outcome‘ page.

 

Ms Jean Daintith

At the time of of F’s assessment and the subsequent disclosure, this woman was RBKC’s  Executive Director for Housing, Health and Social Care.  She was at that time a Registered Social Worker with the HCPC.  She has no other academic or professional qualifications.

This woman told F on  18th May 2011, because he was given in 2001  a flimsy flyer, requesting comments, it was NOT necessary to comply with paragraph 107 of the assessment guidelines and offer F unconditional opportunity to challenge the outcome of the assessment. 

She somehow forgot that in 2009, a new important legislation, the  Local Authority Social Services and the National Health Complaints(England)Regulations 2009, was enacted, streamlining the Complaints process.  Therefore, the information on the 2001 flyer became redundant.  There is NO documentary evidence that F was, as he should have been, made aware of this new legislation.

Furthermore, this intentional omission, was at odds with the Appeal decision in Savva v RBKC, which states that letters  should be self-contained and NOT refer to anything else. 

Ms Daintith also told Fin the same letter,  that ‘ All our procedures and policies are in line with the Department of Health’s guidelines and there is no evidence to suggest that our service users are put at any risk as a result of them.’

This statement would be correct, had F’s concerns were treated in accordance with these guidelines.  Using hindsight, where was the ‘Confidentiality – NHS Code of Practice’ and its paragraph 46?  Or, the Department of Health’s ‘Data Protection Act 1998 – Guidance to Social Services’, or the ICO’s “Data Sharing Code of Practice”, section 7? 

Perhaps, most importantly, where HIV information is concerned, also Article 8 of the Human Rights Act, as in I v Finland and Z v Finland at the ECHR; the considerations in Brent v N P. Also,  the distress and anxiety the disclosure of his HIV information may have had, as in Soho HIV Clinic event.

In the same letter F was told to complain to the Local Government  Ombudsman.

The same letter informed F that ‘Our Adult Social Care Services were inspected last year by the Care Quality Commission and were found to be ‘excellent‘.  However, when F asked CQC about this, he was told  that NO such grading exists.  Providers are found either to be complying with regulations, or not.   At time one of RBKC’s Residential facilities was in need of improvement’.  Hardly an ‘excellent’ grading.

There is also an ongoing discussion why F was referred to the Local Government Ombudsman, as he was on 18th May 2011, rather that the Health Service Commissioner, as provided for by Complaints Act.

It was Ms Daintith, who on 13th September 2011  issued a memo to Ms Parker, forwarding the requested documents by LGO in F’s complaint. The bunch contained not only the requested “assessment documents”, but also the  not asked for Care Plan Reviews, which not only disclosed F’s HIV status, but also detailed 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.

Cleverly and intentionally, she avoided to answer any F’s concerns, particularly, why was he NOT given the opportunity to complete the  assessment questionnaire before the assessment date.  Had she done so, you would NOT be reading this Blog.

F’s HIV specific information should have been removed from his files in May 2010, as requested by F  in an amendment to  his Information Sharing Agreement, addressed to this woman.  She not only chose not to respond, but also not to take any action on F’s amendment.  Interestingly, F’s amendment was also a NOTICE, in line with paragraph 10 of the DPA, which was also completely ignored by Ms Daintith.

It can be alleged that this amoral woman, together with Ms Baillie and Mr Leak, possessing the same heinous traits, cooked up a script, to be adhered to by all of them:.  To ensure that F  and perhaps MANY OTHERS, were NEVER  made aware, during the assessment process,  of the existence of the Assisted Self Assessment Questionnaire, ASAQ, which they could have completed by themselves BEFORE the assessment date, as provided for by paragraph 84 of the Department of Health Assessment Guidelines .  They succeeded!  F was unaware, until 11th FEBRUARY 2012, 16 MONTHS  AFTER THE ASSESSMENT, of its existence.  It was on this date, when he received the requested copies of documents sent to the LGO,  that F  SAW FOR THE VERY FIRST TIME, THE INACCURATE, INCOMPLETE, UNVERIFIED AND UNSIGNED ASAQ.  Had F NOT ASKED for these copies, he would HAVE NEVER DISCOVERED THAT AT THE CENTRE OF HIS ASSESSMENT WAS NOTHING BUT A FORGERY.  This is addressed on the Assessment page.

Whether other people were affect by this ploy, will never be known, as  fortunately for RBKC and other local  authorities, the LGO have NO powers to impose any controls, or God forbid, an independent external audit of the assessment process, which at the  present time is NOT subject to any external oversight.  The authorities can, and perhaps do, exactly as they feel fit.

Furthermore, the large bundle of documents provided by Ms Dainith, also contained 17 pages relating to F’s former domestic cleaner’s INCOME TAX DECLARATION REBATE.

As a result of the above, it can be safely alleged that  RBKC was not at all that concerned as to what was sent to the LGO.  The whole “complaint process”, the request letter and the documents, were nothing but  a sorry, sick charade; a red herring,  trying to give the impression that a proper,  democratic process of investigation was under way.   .  

Ms Daintith’s other qualities were picked up by “Dame” on the “From  The Hornets Nest” blog.