Para 29-(7) of Local Government Act 1974

Although  the LGA’s para 29 claims that the LGO shall have the powers of the High Court to  obtain documents relating to his investigation,  paragraph 29-(7) of the Local Government Act 1974, provides an EXCEPTION.

This paragraph states that “..no person  shall be compelled  for the purposes of an investigation under this Part of this Act to give any evidence or produce any document which he could not be compelled  to give  or produce in civil proceedings before the High Court.”

The ICO in  his review of F’s  case dated  9th July 2012,   stated that if RBKC found it ‘necessary‘ to disclose F’s HIV specific information, paragraph DPA would apply.

There was NO NECESSITY to do so.  The LGO  was unaware of F’s medical conditions, as F did not state any in his complaint.  The ASAQ  and the FACE Report provided by RBKC did not stated any of F’s medical conditions either.  The space for ‘medical diagnosis’  on the FACE Report was left blank.  This would confirm that F’s medical  conditions were irrelevant  to the assessment.

The NECESSITY  to disclose was a mere groundless figment of Ms Parker’s imagination.

As F could not find any English legislation which may compel anyone to disclose another person’s HIV specific information, he asked Professor Chalmers for advice.

In his reply, the Professor stated thatThe circumstances which might give rise to a civil case are potentially infinite, so I suppose it is at least theoretically possible that a civil case might involve compelling someone to disclose this information.   I have  difficulty imagining such a case and I am not surprised that you have been unable to find one.’

As there is NO possible reason to bring a case in a CIVIL Court,  it may be assumed that a person would be compelled  to disclose identifiable HIV relevant information ONLY if  a CRIMINAL action was brought against him in compliance with section 20 of the Offences Against Person Act – 1861, for the transmission of the HIV virus to another person. Often quoted case is Mohammed Dica  v R in  .2004.

However,  an important caveat applies:  Was the accused aware at the time of the alleged transmission that he was HIV+.  The date of his getting aware of his diagnosis is crucial.  Had be been aware, he would be guilty. However, had he NOT been aware, he would have no case to answer, unless he admits the offense.

The awareness  is critical, as HIV being an asymptomatic  diseases, individual would NOT be aware whether he was infected or not, if he had NOT taken a simple blood test.

Furthermore, NHS Statutory Restrictions on data handling,  which is a separate standalone legislation, control the handling of HIV related information.  By ICO’s own admission, this Act is outside of his remit. therefore he was in no way entitled to express his opinion in his review.

However, he conveniently forgot to remind F that RBKC must adhere to the ICO’s ‘Data Sharing Code of Practice’ which clearly states in section 4 that care must be taken to ensure that other provisions, outside of the DPA, prevent disclosure of information.

 

 

Caldicott Guardians

NOTE: Those not familiar with this matter, may find more  here.

The Caldicott Principles have gone through endless reviews and amendments, as those users found them confused and confusing.  Those of you interested, should do your own research.

It now appears that withe issue  of the GENERAL DATA PROTECTION REGULATIONS, GDPR,   and the  new DATA PROTECTION ACT,  in 2018, that these Principles will go through yet another review and a new version… and so it goes on...

Ms Stella Baillie, at the time of F assessments was not only RBKC’s Director of Adult Social Care, but also their “Caldicott Guardian.

These are governed by Caldicott Guardian Council

NHS organisations have been required to have a Caldicott Guardian since 1998 and they were introduced into social care, run by local authorities,  in 2002, mandated in England by Local Authority Circular: LAC(2002)2. 

As a result of introducing Caldicott Guardians into local authorities, the handling of individual’s confidential medical information is EXACTLY the SAME, despite some claims to the contrary.   Some local authorities are under the misguided impression that they can do with this information as they feel fit.   This would appear to true with RBKC’s handling of F’s not only Confidential medical information, but also that relating to his HIV+ status.

As from 1st April 2002, all local authorities were required to have a senior person appointed as a Caldicott Guardian.  RBKC appointed Ms Stella Baillie as their Guardian.

The Caldicott Guardian has NO statutory rights; his duties are defined in  the Caldicott Guardian Manual.  Although this version was published in 2017, it collects and reiterates  already known  Guardian’s responsibilities

Her main duty is to ensure that ALL RBKC employees  understand and follow the Caldicott Principles, when handling individuals’ medical information.

It is clear from this Blog that Ms Baillie has failed in her responsibilities,  permitting  the blatant and arrogant disregard of ALL of the  SEVEN Principles.  This is also alluded to in HCPC statement to F  dated 23rd July 2013, regarding the RBKC’s procedures and processes relating to handling of personal information.

When, on 24th August 2011,  the LGO asked RBKC for information relating to F’s complaint, Ms Baillie was sent, on the same day, a request for comments on the LGO letter.

Ms Baillie, as all of the others asked,  could not be bothered to reply, as she knew  that this was a part of the LGO sickly charade in trying to convince those involved, that an impartial  investigation was under way.  When in fact, the outcome had already been agreed IN PRIVATE.  Frankly, not a very difficult matter, as the LGO is in no way obliged to justify  his  worthless decision that ‘No injustice was caused‘.

On 28th October 2014, F wrote to Dame Fiona Caldicott, asking her about the handling of information subject to Statutory Restrictions,

On 28th January 2015, F wrote to Mr C Fincken,  Chair of the UK Council of Caldicott Guardians, asking him who should be informed about the disclosure of his HIV status.

On 26th March 2015, Dame Fiona replied, without identifying any faults at RBKC.

It took the HCPC in July 2013,  to identify any administrative shortcoming at RBKC, as addressed above.

On  20th April, 2015, F responded to Dame Fiona’s response, above.

Disclosure of Information

This page shows Ms Leverne Parker,LLB(Hons),  RBKC Chief Solicitor of Grenfell fame and their Monitoring Officer’s  abject indifference to legislation of this land relating to  handling of NOT ONLY F’s  CONFIDENTIAL personal information, but  also details about his HIV+status.  

When she offered her  comment in defence of the disclosure, she was not aware that paragraph 29 of the Local Government Act 1972, which she quoted, concerned completely different matter.     The 1974 version of the Act is the correct legislation.

Her myopic intellect, caused her to be single handedly responsible for the disclosure of F’s HIV+ status and related clinical information without his consent and NO legal requirement to do so, as stated by the HCPC

It was Ms Parker, who handled the whole matter.  She received the LGO’s ‘Request’ for F’s information and who signed the cover letter for the documents sent to the LGO.

Had she strictly complied with not only the LGO’s ‘Request’, content of which had been agreed in PRIVATE between the LGO and RBKC,  but also the Department of Health’s “Data Protection Act 1998 – Guidance to Social Services“, specifically paragraph 6.22, and provided  what was requested, this Blog would most probably not exist. 

Had she referred, as she should have done,  to F’s Confidentiality Table and his May 2010 Amendment of his Information Sharing Agreement, she would have realised what was the true position. 

She should have realised that the Amendment was in fact also  a Notice, in line with paragraph 10 the DPA.

In her customary demeanor, she chose to ignore both of these provisions.

Although the requested assessment documents are deemed  to be ‘Confidential’,  the  innocuous ASAQ does NOT disclose any of F’s medical conditions.  Even the resulting FACE report allegedly generated from the ASAQ,  leaves the space provided for medical conditions, EMPTY

This confirms that F’ medical conditions, specifically his HIV+ status, were IRRELEVANT to the assessment. 

Therefore, F does not understand why was he NOT asked for his consent, as required by his May 2010 Amendment to his Information Sharing Agreement?  There would not have been any reasons why he should decline to give his consent, if provided with details of the information, requested by the LGO.  This would be, complying strictly with the LGO’s Request and DH  Guidance,  19 pages of the ASAQ and perhaps the 2 pages of the FACE Report. RBKC were in NO way compelled to provide any additional information, as these two documents would satisfy the ‘minimum’ requirement of the DH Guidance.  

However, for unknown reason, copies of F’s  unverified and unsigned Care Plan Reviews, dating back to 2000, were included, together with other irrelevant documents.  The  LGO confirmed that he would NOT have asked for the Reports, as they would serve no purpose in his ‘investigation’.  There were in all 149 documents in the bundle.

By including the Care Plan Reviews, the matter became  more complicated.  Some of the Reports contain not only reference to F’s HIV+ status, but also details of his treatment,  progress of the condition, the life saving medication he must take and the the inevitable side effects he suffers as a consequence.

This specific information is not only highly CONFIDENTIAL, but its disclosure is protected by the NHS Statutory Restrictions on data handling.  It can only be disclosed in accordance with these Restrictions.

Had RBKC complied with F’s Amendment to his Information Sharing Agreement,  and  DPA’s paragraph 10, this specific information would have been REMOVED in May 2010.  This would have rendered the documents benign and no longer subject to any restrictions.

However, as this was NOT the case, the restrictions still applied.

Had F been given copies of these NEVER SEEN BEFORE, UNVERIFiED AND UNSIGNED REPORTS. as part of RBKC request for his consent,  he would have realised that:  a)- he had NEVER SEEN these REPORTS;  b)- they were ALL UNVERIFIED AND UNSIGNED;  c)- CONTAINED his medical information, which he would have never  agreed to be included in a Report, which  is about provision of a domestic cleaner. and  d)-despite his May 2010 Amendment, the specific information was still on these Reports confirming that RBKC had done ABSOLUTELY NOTHING to remove  it.

If progression of F’s HIV condition, is so important to RBKC, why has he NOT been seen since October 2010,  by anyone from the Social Services, querying his condition?  After all, he is still ‘IN THE CARE OF RBKC’, as stated on his FACE Report.

Although Ms Stella Baillie,  RBKC’s Caldicott Guardian is also guilty of NOT ensuring that employees follow all the relevant legislation, it is entirely Ms Parker’s fault – as she was THE LAST person to review the  documents.

What happened  regarding disclosure of F’s HIV+ status?

In May 2010,  F found it necessary to issue an amendment to his Information Sharing Agreement, to ensure that RBKC  handles any requests for his information, in accordance with his wishes, discussed on the Handling of information page.

As a part of his investigation of F’s complaint to the LGO, about RBKC’s  non-compliance with Department of Health Guidelines,  on 24th August 2011, the  LGO sent RBKC a Request letter, which asked for  : “all the assessment documentation for this matter…. along with any general comments the Council wishes to make.”  This was merely a REQUEST,  which has no legal gravitas.  It is all the LGO can issue,  as he has no statutory powers to issue anything else. 

On receipt of the LGO’s Request,  before proceeding any further, Ms Parker should have read F’s Confidentiality Table, which reflects  F’s May 2010 Amendment to his Information Sharing Agreement.  It clearly stipulates that F’s explicit written CONSENT is required when a disclosure of his information was contemplated, giving him details of the information, RBKC intended to disclose.

It is not clear why this did not happen.

Had this happened, F would have received the NEVER SEEN BEFORE,   the incorrect, incomplete, wrongly dated, unverified and unsigned by him,  ‘Assisted Self Assessment Questionnaire, ASAQ, allegedly used during F’s assessment, which was most probably intentionally,  NOT sent by Mr Williams to F with the  ‘Decision letter‘ on 13th December 2010, as addressed on the Assessment page

Had F received  a copy of the document, he would have immediately realised that it was nothing but a clumsy FORGERY.  This would have seriously upset Ms Baillie’s agenda, which was dreamt up and the ASAQ completed by whomever, wherever and whenever,  to arrive at the predetermined result, removing RBKC’s  contribution towards the cost of F’s domestic cleaner.   RBKC ensured throughout the process that the ASAQ was NEVER mentioned by it proper name, or indeed acknowledge its existence.  It would be nothing but a conjecture to assume what F would have done next.  Therefore, the following is a mere conjecture, as he may have rejected outright the ASAQ, resulting  in  unforeseen events.

He may have also received the  incomplete, unverified and unsigned FACE Report, which was generated from the ASAQ.

F would have had no problem with giving his CONSENT, as these documents DO NOT CONTAIN ANY OF HIS MEDICAL INFORMATION.  Rightfully so, as the legislation governing assessments, does not require any medical information for a local authority to conduct an assessment.  It  is enough  for it to be merely ‘apparent’ to the local authority that an individual may be in need of help, for an assessment to be made.

It would be naive to assume that Ms Parker was NOT  aware of the newly published ICO’s ‘Data Sharing Code of Practice‘, which is a statutory code.  This code clarifies many aspects of data sharing.  It clearly states that the information holder has to ensure that he is legally permitted to disclose the information, and if necessary, in accordance with relevant court order.  Therefore, it matters NOT who asked for the information, if this is not satisfied.

Instead, Ms Parker completely ignored the fundamental requirement of CONSENT.  For unknown reason, her office issued on 24th August 2011, a Request for Comments to a number of RBKC employees, none of whom have any legal trainingStrangely,   Mr Leak, F’s  Social Worker, in whose custody was F’s confidential file,  was NOT asked for his ‘comments’.  

Ms Parker’s request was a rather strange event. Why should  Ms Parker, RBKC’s Chief Solicitor and indeed their ‘Monitoring Officer’,  seek comments from those without any legal knowledge.  Indeed,  it should have been Ms Parker, who should have taken the initiative and deal with the Request.  In fact, she could have refused to provide the requested information on the grounds of ‘Confidentiality‘, as addressed on the LGO page.

 There was no need to ask for any ‘comments‘, as  the following provide clear guidance  relating to information handling:

Section 4 – Data Sharing and the Law of ICO’s ‘Data Sharing Code of Practice‘,  states that note must be taken of any legislation which may govern disclosure of information, including ‘Statutory Restrictions‘ and any ‘Confidentiality’ issues,  which may be OUTSIDE of the DPA’s remit, therefore requiring special handling..

For specific guidance in relating to Social Work matters, the Department of Health ‘Data Protection Act 1998 – Guidance to Social Services‘,  section 6 provides detailed guidance on how to handle service users’ personal information.  

NONE  OF THOSE ASKED COULD BE BOTHERED TO REPLY to Ms Parker’s request.  Much later, on 12th January 2017, Ms Hussain and Baillie were asked why they chose not to reply.  Ms Hussein replied; whereas  Ms Baillie again chose to ignore this request.  At least F learned who had collated the 146 documents. 

An unexplained event occurred between the  24th August 2011 and 15th September 2011, when the documents were sent to the LGO.  Nameless, faceless  person  culled  146  confidential documents from F’s file.   This reckless, irresponsible  cull was without purpose, reason, guidance, legal requirement to do so, or permission to access the file.  Those involved in the cull  could have done so,  as there is no meaningful independent oversight or audit of RBKC activities.  They have done so with impunity, not afraid of any retribution.

Unknown to F,  a cover letter was signed on  15th September 2011, by Ms Parker and the documents were sent to on their merry way to the LGO. 

Now, comes the most important question of this whole Blog: Who authorised access to F’s CONFIDENTIAL file and the indiscriminate cull of 146 documents?  NOBODY.  Due to the non-existent access protocol,  NO AUTHORISATION WAS NECESSARY.  F’s most CONFIDENTIAL medical information could have been accessed by Tom, Dick, Harry or an itinerant bottle washer and remove whatever information they felt fit.

However, a question remains: What was the authority for Mr Leak to grant access to F’s information?

On 23rd July 2013, HCPC told F that  ” it may well be the case that the process and procedures  for both handling and sharing of information at RBKC is flawed..”

This statement confirms HCPC’s confusion in respect of  what are Social Worker’s legal obligations to F and is  addressed on the HCPC page.

Social Workers are expected to adhere to BASW‘s  “Code of Ethics and HCPC‘s  “Guidance on Confidentiality“.  Both set out the conditions under which individual’s personal information may be shared.  Both require the individual’s CONSENT, bearing in mind that all information in F’s file is deemed to be CONFIDENTIAL and must be treated as such.

F would have never learnt about the submission of documents by RBKC,   if the the LGO had not told him on 8th December 2011, that he had received  Care Review Reports dating back to 2000.  On 12th December 2011, the LGO confirmed to F that ‘he did not ask for these reports, as they would not be necessary  for his investigation.’

Concerned about the disclosure without consent  or knowledge  of his information, which may have included details of his HIV condition,  on 4th January 2012,   F asked RBKC for justification of the disclosure of his information. 

Ms Nadja Husain told him on 5th January 2012 that his information was provided to the LGO, because he made a complaint. Therefore,  his consent was NOT required. Mentioning that the LGO has the Powers equal to those of the High Court and can access any information about a particular case.

 Ms Claire Walker on 13th January 2012,  just echoed the above.

Ms Leverne Parker on 22nd February 2012  reconfirmed that  paragraph 29 of the Local Government Act 1972, permitted disclosure of F’s information.  This is incorrect.  It is the 1974 version of this Act that deals with the matter quoted by Ms Parker.

The  response by those listed above confirms Law Commission’s  ‘Data Sharing Between Public Bodies – Scoping Report’,  statement  that  there is a very poor understanding of data protection legislation at local authority levels.

 RBKC’s  statement that the LGO has the powers of the High Court, is open to interpretation, as discussed  on this page.  

F became concerned that his personal information,  perhaps even including his HIV related information may have been disclosed to the LGO, without his CONSENT.

On  5th January 2012, F wrote to the Information Commissioner, ICO, seeking advice on the disclosure without his consent.

In his ‘assessment‘ dated  23rd January 2012,  the ICO sided with RBKC, without even trying to ascertain WHAT KIND OF INFORMATION was actually disclosed to the LGO

It must be remembered that at the time of his request to the ICO,  F was NOT aware of what of his personal information was disclosed to the LGO.  He merely wanted to know his legal position, as discussed on this page.

On 11th May 2013, F asked the ICO, whether his ‘assessment’ would have been the same, had he been  aware. that CONFIDENTIAL MEDICAL information was disclosed in the documents sent to the LGO.  The ICO chose NOT TO REPLY.

Interestingly, when the ICO was asked afresh about this after the Soho Clinic disclosure, in his reply dated 6th January 2016he reneged on his original assessment and confirmed that should information be subject to Statutory Restrictions,  any considerations of  a breach would be OUTSIDE of the ICO’s remit and should be reported to the NHS.

F was horrified when on 11th February 2012 he received the requested copies of documents sent by RBKC to the LGO.  Closer look disclosed that the large bundle contained 149 confidential documents, culled from F file.

He discovered for the FIRST  TIME EVER,  16 MONTHS since his assessment, the  incomplete, incorrectly dated, unverified and unsigned  document, the ASAQ, allegedly used in F’s assessment in October 2010. .

As told by the LGO, the bundle contained  many unsigned by F Care Plan Reviews dating back to 2000.  There were also  17 copies  relating to F’s former domestic help’s income tax rebate information, which had absolutely nothing to do with any assessments.  It was a private matter between F and the HMRC.  F merely sought guidance in how to treat the bonus, as it was credited to  his Direct Payments Account.  

 F became  very concerned about Mr Leak’s, his Social Worker’s role in the  disclosure of  his information.

After he obtained  Guidance on Confidentiality from HCPC,  on  19th February 2013,  he lodged a complaint against Mr Leak with HCPC, his Regulators, which is addressed on the HCPC page.

On 25th July 2013, HCPC told F  that  they were told by RBKC that  the legal team have access to all documentation  and  that if a formal request was made by the team, Mr Leak was not in a position to obstruct the team from obtaining  information from F file.

However, when asked for a copy of the ‘formal request‘, RBKC was unable to provide a copy of this important document. 

It can be alleged that the existence of this ‘formal request’ was dreamt up by Ms Parker, simply to obfuscate the matter and hopefully provide an excuse for the cull of documents. 

By inventing this non-existent document, proper investigation of the  matter was  perverted.  We were all mislead to believe that am important document, which ensured  a free access to F’s HIV related information existed, whereas in reality it did not.

At this time an interesting question exists.  Were RBKC aware that the documents  sent to the LGO contained  F’s HIV relevant information?

F assumed that RBKC were not aware of the full extent  of the complexity of the matter, involving F’s  HIV related information.  F  thought that this information was included by mistake.  Easily assumed, as  it could be safely assumed that RBKC staff were not fully aware of the existing legislation.  Although not an excuse, F thought it unfortunate.

However, the matter took on completely different angle, when F received a reply from Ms Caroline Maclean on 14th January 2013,  addressed on  this page.

When F realised that Mr Leak, his Social Worker failed to safeguard F’s information, he informed Mr Leak on 11th January 2013, that he will be contacting the British Association of Social Workers, BASW, about this failure.  F was told that the HCPC were the new regulators.

At the same time F told Mr Leak that the Disability Law Advice Service, in respect of the unverified and unsigned  ‘Assisted Self Assessment Questionnaire’, ASAQ.

On 19th October 2012,  F submitted through his MP, Sir Malcolm Rifkind, QC,  a complaint to the Parliamentary and Health Service Ombudsman, the PHSO.

HCPC in their reply to F dated 23rd July 2013  state that “The Process and procedures for both handling and sharing information at RBKC is flawed.”   This may also explain why Mr Leak was NOT involved in the process of provision of F’s information to the LGO.  

On 4th November 2012, F asked the LGO to let him have a ‘list of the documents‘ RBKC sent to him. This would have been the whole, or abridged list of all the documents, as required not only by the Caldicott Principles, but also paragraph 6.22 of the Department of Heath guidelines.

The LGO replied on the same day, telling F that he had NOT received a list of the documents.

On 5th January 2013, F asked the LGO for copies of all the documents received by him from the RBKC, so that he could reconcile what was sent by RBKC and received by the LGO. 

On 25th November 2014, Ms Parker came up with a suggestion of how to ‘move forward to resolve the problem over the disclosure of F’s HIV status.  This absurd event is addressed on the Deletion  page.

September 2015, F wrote to Ms Baillie, about the Care Plan Reviews, stating  surprise  that his HIV information was recorded on these unverified and unsigned Reports.   Ms  Baillie replied on 6th October 2015, showing that she could /would not  respond  to any of the points raised by F.

 As recently as  23rd June 2018, F asked the ICO as to the role of the Local Government Act 1974 and the Data Protection Act 1998 in the disclosure of information.  The ICO replied on 30th July 2018,  He endorsed what F and others have thought – RBKC   should have heeded the  provisions of the Data Sharing Code of Practice,  which is a ‘statutory code’ when considering the disclosure of F’s  HIV relevant information.

CONCLUSION:  RBKC’s action described above, endorses Law Commission’s findings that ‘understanding of data handling legislation at local authority level is poor’.

However, this is NOT an excuse,  or justification for the unauthorised disclosure of F’s HIV+ information.

You are welcome to comment on the above.

Information Sharing Agreement 2010

In 2008,  RBKC chose to ignore basic principles of Confidentiality and what possible consequences this may bring, when re-hashing an email signature block of its Adult Social Care Department.

The block stated that the writer was a member of the ‘Physical Disabilities and HIV Team’,  implying by ‘association’  that F may be ‘physically disabled and/or HIV+’ or  both.  In this context see the event at Soho HIV Clinic in September 2015, when the ICO decided that the recipients of the Clinic’s e-newsletter,  could be thought to be HIV+ positive, causing them unwanted concern and distress.

To ensure that his personal information was handled in accordance with his wishes, on  4th May 2010  F issued  an amendment to his ‘Information Sharing Agreement‘, which clearly instructed RBKC that his explicit written consent must be sought when it  contemplated to disclose any of his personal information, including his HIV+ related details.

His amendment also included  instruction that any reference to his HIV+ status should be deleted from his files.

Although F requested a confirmation of these instructions, RBKC chose not to do so.  Although an amendment to F’s ‘Confidentiality Table‘ was made on  4th April 2010,  one month before the actual submission on 4th May 2010.  It may be considered to be a date error.  No further action was taken.   F no reason to assume that no action was taken.  This  turned out to be nothing but wishful thinking.

It transpired some year later that the amendment to his information was in fact a ‘Notice’ in line with paragraph 10 of the Data Protection Act 1990.

The ICO’s guidelines to his staff relating to paragraph 10 are clear what action should be taken; the onus to recognise the text as a ‘Notice’ falling squarely on the ‘Data Controller’, RBKC in F’s case.  It can be assumed that although these guidelines would also apply to any other ‘Data Controller’.

Again, RBKC chose not to even acknowledge this Notice, let alone tell F, as they were obliged to do, whether they will remove the information, or tell him to what extent, or not all, they will remove the information, providing a credible reason for this.

Had F received a confirmation that the information would be removed, the matter would be closed.  If not, F would have taken further advice and ensured that his instructions were complied with.

Although it might have be  prudent, F was under no obligation to ‘follow-up’  on the matter. The onus was on RBKC to comply.

Therefore, RBKC is not only guilty of  not only replying to F’s instructions, but also of violating the Data Protection Act by not replying at all.  This is an  offence.

 

 

Powers of the High Court

Those of you not familiar with  what powers are  vested in a  High Court, may find this document  posted on the Parliament website of interest, as it succinctly  states the ‘differences’ between the LGO and the High Court.

Of interest is also the recent Parliamentary Briefing document on LGO, which clearly states that the LGO cannot COMPEL an authority to do anything.

First of all, it should be realised that, although very convenient for local authorities,  NO person is obliged to complain to the Local Government Ombudsman, the LGO, as so often suggested by the authorities, when the “local process of complaint” failed to arrive at a satisfactory resolution.

The inducement to do so, is that the process is FREE.  The individual gets precisely what he pays for. NOTHING.  A biased, legally worthless ‘decision’ arrived at ‘on the hoof’ by  a legal non-entity, whether the individual suffered any INJUSTICE; which is UNDEFINED.   It is entirely up to the unqualified ‘investigator’s whim whether this occurred or not.  Appeal, unlike at the High Court, is impossible.   

The Final Decision is arrived at after a possible  endless to and fro between the LGO and the authority, in accordance with paragraphs 30 and 31, as addressed below.  However, this seldom, if ever happens, as the outcome is agreed between the LGO and the authority, providing no reason for this event.

Any person can, should he wish to do so and have the required resolve and sometimes the means,  go to a Court and take legal action against the authority.    Even if a ‘decision’ had been reached by the LGO, an individual may proceed with a legal action, as the Judge is in NO  WAY obliged to consider the LGO’s decisions, which have NO legal value.  He is likely to consider the matter anew.

RBKC and other local authorities, as well as the LGO quote the well worn phrase featuring ONLY ONCE in  paragraph 29-(2) of the Local Government Act 1974,  that “Local Commissioner shall have the same powers as the High Court in respect of the attendance and examination of witnesses,  and in respect of the production of documents.

High Court can compel  anyone to do, or not to do, certain thing, by the issue of a Court Order, signed by a  Judge.  Likewise,  the High Court can issue a “decision“,  or “ruling”, signed by a Judge which is enforceable in law. compelling  the recipient to do. or not to do, certain things.

However, the LGO has NO such  powers.  As he is NOT a member of the Judiciary, he CANNOT issue and sign a Court Order, or  an enforceable “decision” of his own accord, compelling someone to do whatever. 

.F asked RBKC for their justification of a disclosure  to the LGO of his personal information, without consent or knowledge. in  the first instance contrary to his May 2010 amendment to his Information Sharing Agreement.

Ms Husain, Ms Walker and as well Ms Parker, RBKC’s  Chief Solicitor quoted paragraph 19-(2) of the Local Government Act 1974, as their legal justification to disclose F’s  information, possibly including his HIV+ status clinical details

On  14th January 2014, Ms Maclean chimed in with her abjectly arrogant statement that RBKC HAD to disclose F’s information in order NOT to prejudice RBKC’s  REPUTATION.

It is clear that RBKC are under the wholehearted. but erroneous impression that they were obliged to disclose F’s information.

ICO’s Data Sharing Code of Practice, clearly states in Section 4 that the onus to ensure legal disclosure is on the data  controller.  Irrespective of who may have asked/ordered information, it must make sure that the information can actually be disclosed.    Consideration must be made that disclosure of the information may be outside of  the Data Protection Act and subject to provisions of other legislation, outside of the ICO’s remit.

On 15th September 2013 the LGO was asked  about disclosure to him of personal information protected by the NHS Statutory Restrictions on data handling.

On 16th September 2013, the LGO replied, merely quoting the Local Government Act 1974 as the authority.

On 20th November 2013 F asked  the  LGO via the What Do They Know website under what circumstances information  governed by the NHS Statutory Restrictions on data handing may be requested by the LGO. 

In her reply dated 29th November 2013, Ms Pook merely referred to ‘INFORMATION’ in very general, wide definition,  rather than any SPECIFIC information and quoted Paragraph 29-2 of the LGA as the authority to do so.  Again, she uses the well worn phrase about ‘LGO’s powers as the High Court’, to bambooze F into believing that LGO is endowed with these albeit non-existent, God-like powers.

He MUST apply to at least a Magistrate Court for a COURT ORDER.  This is in no way an ‘automatic process’.  The LGO has to SATISFY a JUDGE that the Court Order is appropriate and should be signed by the Judge, who has the explicit discretion to do so, or not.

  As recently as 17th February 2016LGO replied to F  about  LGO’s need to issue a Court Order to obtain his HIV relevant information.

The LGO clearly states that “if RBKC refused  to provide the requested information, we can obtain a court order to force the authority to provide the information.”  (LGO’s italics).

Why the italicised  ‘refused” and ‘can‘?   RBKC was entitled to ‘refuse’ anything  LGO asked of  them.  It was merely a polite request for information, rather than a Court Order.   Is it unlikely that RBKC would ever ‘refuse’ to provide information, already agreed upon during the LGO’s investigation in PRIVATE. 

The important word here is ‘obtainBecause it is unable to issue its own Court Orders.  This clearly contradicts the response given on 29th November 2013, which suggests that the LGO  has the powers to do so.

To obtain a Court Order, LGO would have to apply to at least the Westminster Magistrate Court.  This is in NO way an ‘automatic process’; the LGO must provide the Judge with a  legal reason why the Order is needed.  It is entirely up to the Judge to grant it or not.

It appears that Ms Pook is trying to  imply that the LGO has got some God-given powers to ‘obtain’ a Court Order.  In fact, anyone can ‘obtain’  a Court, by applying for it to a Court, through a legal professional.  Not even that, if the individual has the  required legal knowhow of how to apply himself.  It would be up to the Judge to decide whether to grant an Order or not.

The LGO  in his letter to RBKC dated  24th August 2011 said “I would be grateful if you could provide me with copies of all the assessment documentation for this matter so that I can properly consider the complaint, along with any general comments  the Council wish to make.”

It was RBKC responsibility to ensure that they can disclose F’s information, complying  with the ICO’s ”.

Paragraphs 30-31 of the Act are very clear about what happens.   The LGO presents his ‘Report’ and expects  the authority to review it  and provide comments.   However, should the authority fail to do so, or the response is unsatisfactory, the LGO shall amend his ‘Report’.  There is NO other action he may take – he has no  statutory powers to compel anyone to accept the findings of his ‘investigation’.  In fact, the whole process is nothing but a sick charade. waste of taxpayers money, resulting in a situation, where the LGO can be. and is, ignored  with impunity, as there are no prospects of any retribution  for responsibility to create an ‘INJUSTICE’, whatever that may be.

Therefore, there is NO legal obligation on anyone, to take any notice of the ‘Decision’, as the process is in fact ENDLESS… There is NO time limit or anything else associated wit this element of the process.

However, to avoid the possibility to the above ever happening, the LGO and the authority cozily agree on the desired outcome  during LGO investigation in ‘PRIVATE’, where anything can be agreed, without any outside body ever knowing,  How convenient in the allegedly ‘democratic’ England.

This would endorse our opinion that the LGO was IN NO way involved in the disclosure of F’s HIV information to the LGO.  He is totally blameless.

 

NHS Statutory Restrictions on data handling

Handling of information must be in compliance with the Data Protection Act 1998, and all subsequent amendments.

However, there is some information, handling of which is controlled by Statutory Restrictions on data handling, as explained in the Ministry of Justice’s “Public Sector Data Sharing: Guidance on the Law“, issued in April 2011.

Of interest is section “6 –  Common Law and statutory restrictions on the disclosure of data.” 

This section states that  there are various statutory provisions governing the disclosure of information, among them information relating to Confidentiality, HMRC,Child support,Companies Act, Social Security and others.,

One of statutory provisions is the NHS(Venereal Regulations)1974, dealing with information relating to sexually transmitted diseases, among them HIV.

Any medical information, identifiable  to an individual, is deemed ‘CONFIDENTIAL‘. meaning that a disclosure of patient information is governed by the ‘Common Law duty of Confidentiality.

Difficulty arose regarding sharing of information about individuals suffering from sexually transmittable diseases.  This is described in the ONLY legal treatise on the subject, by Professor James Chalmers in his  much respected book ‘Legal Responses to HIV and AIDS’.

These Statutory Restrictions underpin paragraph 46 of the ‘Confidentiality – NHS Code of Practice, all local authorities must follow.

It has been argued that these provisions only apply to the NHS.  This may be true.  A legal EXCEPTION has been created by this law, to enable those listed in paragraph 2 of the Law, to disclose identifiable information ONLY to those listed in paragraph 2 -(a) and (b).  If a person, who is NOT one of those listed in paragraph (2), and contemplates a disclosure of this specific information. he MUST NOT do so.  

Those wishing to get some background information about this NHS Statutory Restrictions on data handling, specifically the NHS(Venereal Regulations)1974, should read Professor James Chalmers‘  book ‘Legal Responses to HIV and AIDS’,  where chapter VI discusses this law in some detail.  Perhaps the ONLY  discussion, as we could not find any other published legal consideration of this legislation.

However, the Department of Local Government confirmed on  19th December 2013, that local authorities must handle HIV related information in accordance with the  Confidentiality – NHS Code of Practice‘.  Therefore, paragraph 46  would apply, with it restrictions as to whom the identifiable information may be disclosed.

This may by only an academic consideration, as local authorities are not entitled to possess this specific information.

 It has been confirmed to us by many that there is no evidence that a complaint/case has been brought against anyone for breach of these Restrictions.

The LGO told F on 17th February 2016, that “the LGO has the same powers as the High Court in respect of attendance and examination of witnesses, and in respect of the production of documents. This means that if an authority refuses to provide information asked for by the Ombudsman, we can obtain a court order to force the authority to provide the information. However, RBKC did not refuse to provide the information so no court order was needed.”

This is in itself a contradiction.  If the LGO had the same powers as the High Court,  the LGO would issue his own court order, rather than go to the nearest Magistrates Court and  obtain a  court order, by APPLYING for itThe Judge will be under NO obligation to comply with the LGO’s request.  He has to satisfy himself that a court order is appropriate,  as discussed on the Powers of the High Court page.

Earlier events

On 22nd February 2000,  Mr F was admitted to St Mary’s Hospital, suffering from PCP and CMV.  At the same time he was diagnoses HIV+.  Both of these conditions are NOT HIV specific.

Whilst recovering, he suffered  a bad stroke, which left him weak on the left side of his body, which badly affected his mobility.  He suffers from this to this day, together with progressive peripheral neuropathy, itinerant vertigo, and progressive sensory impairment.

In  early April  2000,  it became evident that  due to the poor state of his health and mobility, he would not be able to return to his  home.  RBKC  Social Services got involved and discussed with him his future accommodation.   On 18th April 2000, RBKC asked St Mary’s Hospital  for a ‘general letter’, to support F’s Housing Application.

Yet, for unknown reason, a  request for same letter was made by RBKC on  25th April 2000  from St John’s Hospice to support F’s Housing Application, played an upsetting  role.  This is discussed in the Accommodation page.

When F finally left the St John’s Hospice on 12th June 2000,  he was accommodated in a temporary accommodation, from which he moved in 2003 to his permanent home, where he lives now.

Due to the urgency of the requirement, RBKC provided him,  without carrying  out a ‘needs assessment’ as permitted by paragraph 47-(5) of the National  Health and Community Social Care Act 1990,  with 4 hours of DOMESTIC help, to assist him with everyday mundane domestic chores, he was unable to manage alone, due to his poor mobility and sensory problems, caused by his stroke. 

There is no evidence that an assessment  for this service was carried out later on, as required by paragraph 47-(6).

F applied for and was awarded the highest rates of both elements of the Disability Living Allowance, DLA.

Between 2000 and 2010 various Social Workers carried out   Care Plan Reviews, never discussing their content with F,  let alone giving him a copy to review and sign them confirming veracity of the information, which is a practice at all of the local authorities we asked.  

‘. 

 

 

 

Williams’ qualifications

In May 2011 F learned that  assessments of individuals  suffering from physical and/or sensory impairments,  should be carried out by a properly qualified Occupational Therapist or a Physiotherapist,  rather than mere Social Workers without these additional qualifications..

Therefore, on 7th May 2011, F submitted an FOI to RBKC, about Mr Williams’ professional qualifications, which would permit him to carry out an such as assessment.

RBKC refused to let him have this information, using ‘confidentiality of staff information’ as an excuse.

When F challenged this decision, RBKC’s CEO replied on 28th June 2011, which was utter nonsense.  It is hardly of F’s interest whether Mr Williams is a person of good standing.  The important question is whether he was professionally qualified to carry out the alleged assessment.

On 7th August 2011, F replied to the above response.

F was unhappy and complained to the ICO, who upheld his request and stated that RBKC  must disclose Mr Williams’ professional information, as it is directly relevant to his job.  However, had he had a degree in basket weaving, this is not relevant.

F learned that Mr Williams has academic qualification, enabling him to register with the regulators, the Health Care Professionals Council, who issued him a licence, to enable to call himself and work as a ‘Social Worker’.

Interestingly, all of those local authorities we asked, confirmed that an assessment of individuals suffering  form physical and/or sensory impairments, would always be conducted by a properly accredit Occupational Therapist or Physiotherapist

Their signature on the assessment document would be adequate to proceed o the next step of the  process.  NO  local authority have an ‘Assessment Panel‘  like  that of RBKC to process assessments.  However,  RBKC’s Panel did NOT have a professional member, authorised  to deal with these physical/sensory impairment assessments.  They were all merely Social Workers, if that.  The Panel was nothing but a clumsy smoke screen, to add a faux gravitas to the Panel’s decisions.

F submitted an FOI about the composition of this Panel.

It can be assumed from the reply, that the Assessment Panel did not contain any qualified Occupational Therapists or Physiotherapists, entitled to consider specific type of  an assessment.  Therefore, there are ALL SUSPECT, as the Panel could have decided whatever they wanted, without any professional obligations imposed on them.

Furthermore, it is interesting, how quickly RBKC came to use the ‘Staff Confidentiality’ excuse, to prevent any unwelcome/embarrassing  questions.  

Yet, F’s legal right to CONFIDENTIALITY was not  even considered, let alone acted on.

St John’s Hospice letter

On 18th April 2000,   F’s  Social Worker asked St Mary’s hospital for a ‘general letter’ to support his housing application, which the hospital issued on 30th June 2000.

The general letter from St Mary’s was adequate for the purposes of F’s housing application.

For unknown reason, a week later on 24th April 2000,  a  request for same letter was made to the St John’s Hospice, where F was recuperating from his ordeal at St Mary’s.

This letter came to light ONLY in January 2014 when F asked RBKC for any documentary evidence of his HIV diagnosis.  He was aware that his HIV clinic at St Mary’s or his GP never gave RBKC any information.

Up to this date, F was  NOT aware of this letter, let alone that he provided any consent to the Hospice to issue it.  When asked, the Hospice could not  provide any information about this letter.

Copy of this letter was sent to him by Ms Antoinette Carter, RBKC’s  Information Officer, over an un-encrypted  email system, causing much concern.

Had RBKC complied with F’s instructions/Notice in May 2010, this letter would have been long removed from his file; F would have never known of its existence.

F is of the opinion that the Hospice should not have been asked for anything, as  RBKC had already made a request for  a same letter to St Mary’s, who provided F with medical treatment.    The Hospice should have never issued such a specific letter, detailing F’s HIV/AIDS diagnosis.

St John’s Hospice, breached not only F’s Confidentiality in the context of doctor/patient confidentiality, but also the NHS Statutory Restrictions on data handling and violated article 8 of the Human Rights Act.

Even with F’s consent, of which there is NO evidence,  any reference to his HIV+ status would be illegal.

 

 

Accommodation

In April 2000 it became evident that  due to his frail physical condition, poor mobility and respiratory problems, F could not return to his home; a Chelsea town house he shared with a longstanding family friend.

He was unable to walk properly, let alone scale couple flights of stairs to his accomodation.  He would become housebound.  Also the layout of his accommodation was unsatisfactory.

RBKC  Social Services came to see him at St Mary’s.  He had an interview and  the Social Services decided  that he should be declared ‘unintentionally homeless’.

To support a ‘housing claim’ and to put F on the ‘Housing List’,  his Social Worker  on 18th April 2000, submitted a request for a ‘general letter’ to St Mary’s. 

He  received a reply dated 30th June 2000.   Although requested, this letter in NO way confirmed F’s HIV diagnosis.   The medical conditions alluded to, could have been caused by other medical ailments, which contribute towards the destruction of the individual’s immune system, cancer for example.

For unexplained reason same letter was requested from the St John’s Hospice, who issued it  on 24th April 2000.  The significance of this letter is discussed in greater detail  on St John’s Hospice page.

The Housing Waiting List Application asked for details of medical conditions to support  his claim.  F’s application dated  17th April 2000, clearly stated that he was HIV+.   It could be argued that RBKC was in NO way entitled to be provided with this specific information, as they do NOT provide service where it is IMPERATIVE for this information to be known in order to provide proper service.  .This is referred to section 4 – Confidentiality of the DHSS ‘Local Authority Social Services Letter/86/8.    Indeed, RBKC is NOT entitled to it, as confirmed by the Department of Heath.

Why was this disclosure necessary?   Does RBKC practice some kind of discrimination towards those who are HIV+?   It must be remembered that HIV condition is ‘ASYMPTOMATIC’, meaning that it does NOT produce any signs/symptoms.   The ONLY way  it may be found that an individual is HIV+ or NOT, is by a  blood test.   There is NO OTHER way to ascertain this fact.

HIV is a MEDICAL condition of some complexity, manageable only by  a complex retroviral medication, prescribed by the individual’s HIV specialist and not available from High Street chemists.

Any and all SOCIAL conditions that an HIV+ individual may suffer from, are NOT HIV exclusive, they can and are caused by other conditions and circumstances.  Therefore, although claimed by local authorities that they provide HIV relevant services, this is a misconception.   ANY and ALL SOCIAL services provided by local authorities are NOT HIV EXCLUSIVE.  The exact services may be provided to those who are NOT HIV+, or even those who are NOT aware of their status.