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 that ‘The 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.
