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 These do not publish anything NEW in the legal sense, but clarify application of the DPA in a Social Services environment, together with details procedures to follow in the various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 case, the 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.