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.

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