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Full text is available here:WORDPRESS BLOG Legal responsibilities

Signatures on documents

When F received copies of his  never seen before Care Plan Reviews and the October 2010 Assessment, he found that NONE were signed by him.

F asked Mr Leak about the absence of his signature on the ASAQ.  He was told that as a Social Worker was present, it was NOT necessary for  F to sign it,  confirming  veracity of his answers.

As F could not find any information,  on 29th July 2014, he asked senior Professor in Law about this point.

Professor Chalmer’s reply  is interesting.  It is clear that RBKC by not asking anyone to sign their  documents, expose themselves to criticism and inability to prove that the documents were completed in the individual’s presence.

Mr Leak may have been right, but the caveat here is that,  as long as the document remains UNSIGNED, BOTH parties MUST be SATISFIED with the answers.  However, as soon as either party disputes them, the documents becomes legally unsafe, as there is NO proof that the service user had seen the document, let alone agreed with its content.

This situation is avoided, by simply NOT giving the service user a copy of the Review.  Job done.

He sent a number of FOI Requests to local authorities, regarding the necessity for a signature of the Care Plan Reviews.   From the replies received, the one from Waltham Forest on  16th July 2015  is a typical reply.  It states that the service users  get two copies of their Reviews; they are asked to sign one, confirming veracity of the information.

By NOT asking the service users to sign their Care Plan Reviews, they may contain whatever RBKC feels fit, to justify their agenda and the purpose of the Review.

Had F been given copies of his Care Plan Review, he would have NEVER agreed for his HIV relevant information to be recorded.  Provision of a domestic cleaner hardly necessitates  for this fact to be known.  

Therefore, this specific information would have NEVER been recorded and you would not be reading this Blog.

Legislation

Ms Jean Daintith, RBKC  Executive Director for Housing, Health and Adult Social Care  told F  on 18th May 2011, that ‘All 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.’

There is NO  credible evidence that RBKC complied with any of them

Although required to comply with them, they ignore the 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‘ .

In accordance with the above Guidelines, F should have been given the opportunity  to  challenge  the decision.  RBKC denied this,  by stating that because he was given a flimsy flyer , there was no requirement for this offer to have been made to F.

However, the complaint process he was allegedly made aware of, changed in 2009, by the introduction of  the ‘Local Authority Social Services and National Health Service Complaints(England)Regulations 2009‘, which streamlined the complaints process.   This should have been complied with, irrespective whether F was aware of anything or nothing.

In respect of the eventual needless unauthorised disclosure of F HIV+ status and relevant clinical information,  without any legal requirement to do so, RBKC  failed to comply with:

Common Law Duty of Confidentiality

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

Department of Health ‘Confidentiality  – NHS Code of Practice

ICO’s ‘Data Protection Act 1998, and paragraph 10 of the same Act dealing with ‘Notices’

ICOs’ ‘Data Sharing Code of Practice

Article 8 of the Human Rights Act

NHS Statutory Restrictions on Data Handling, which underpin  paragraph 46 of the ‘NHS Code of Practice’.

 

Small Projects

The  Small Repairs Service,  was a service run for the elderly/disabled residents of RBKC, who found themselves in a need for services of a ‘handy man‘. 

The part-time, often retired tradesmen,  such as a  plumbers, electricians, carpenters, etc  could have been hired to attend to ‘small jobs‘, fixing a plug, curtain rails, plumbing and other little jobs, for a  flat fee of £12 an hour, plus  actual cost of materials.  These little jobs were often far too small  or out of scope of RBKC Repair service, or deemed too small and costly for a professional tradesman to attend.

 

 

Receipt of unauthorised information

When F received copies of the documents sent to the LGO, he found, to his utter astonishment, that  many of the Care Plan Reviews, not only referred to his HIV+ status, but also disclose details of the condition’s progress, the life saving medication he must take and the inevitable side-effects he suffers as a consequence.   

This specific  information should have been removed in May 2010, had RBKC complied with F’s May 2010 Amendment to his Information Sharing Agreement.

When F discovered the existence of the NHS Statutory Restrictions and ICO’s Data Sharing Code of Practice, on   17th September 2015 he asked Ms Pook, LGO’s official what  action  had  she taken when these documents were discovered.

It is F’s opinion that the LGO should have perhaps alerted RBKC to this event, or even informed the ICO, as the LGO was in no way entitled to receive this specific information.

In her reply, dated  23rd September 2015  Ms Pook told F that she did not contact the ICO, as NO DISCLOSURE had OCCURRED .

The question remains:  What legal right has the LGO got to receive  highly confidential medical information, including details of person’s HIV+ status, without consent, and keep it for undefined period of time in undefined  storage locations; most probably permitting access to  it by any Tom, Dick, Harry and itinerant bottle washes, without any oversight?

The receipt of such information by others is addressed in Soho HIV Clinic incident in September 2015.

Handling of Information

Sadly, it became evident in October 2008, that RBKC Social Services under the leadership of Ms Stella Baillie, that the understanding  of CONFIDENTIALITY was fuzzy and its breach even worse.

F was very upset when he found that his Social Worker, implied by his signature block in an email to a contractor, that F was either HIV+ or ‘physically disabled’, or both.

When F complained, the text was changed.  However, that was far too late.  Someone, somewhere became aware of F’s HIV+ status, when this was NONE of his business, and also NOTHING to do with RBKC, as confirmed much later by the Department of Health, that ‘local authorities are NOT entitled to ask for, or be provided with confidential medical information, including HIV status. 

The reason is that local authorities DO NOT provide services, where it is IMPERATIVE for individuals’ HIV status to be know.  All the services are NON-HIV specific.  It can be assumed that majority of service users are unaware of their HIV status.

THE ONLY places where it is IMPERATIVE for this information, and much more besides, to be known, are the specialist  HIV Clinics, which are the ONLY places, which examine and prescribe retroviral medication, which controls the progress of the condition.   This medication is NOT available from GPs and High Street Chemists.

To ensure that more care is taken in the future  in handling of his personal information, in May 2010, F issued an amendment to his ‘Information Sharing Agreement.’

In this amendment he instructed RBKC that his explicit written consent must be sought, when a disclosure of his personal information was contemplated.  He also instructed that his HIV related information should be deleted from his files.

This may have appeared as an over reaction, but it was confirmed by the Department of Health that RBKC should NOT even be in possession of this information.

Although F asked for a confirmation of his instructions, NONE CAME.  He assumed that RBKC had  acted on his amendments, as they had ample time to replyHowever, his Confidentiality Table was amended to reflect the need for consent.

It  came to light much later, that F’s amendment was in fact a NOTICE, in compliance with paragraph 10 of the Data Protection Act.  Details of handling of this explained in ICO own guidelines, which assumedly  would also apply to any other data controller, RBKC in this case.

The NOTICE required RBKC to reply within 20 days, telling F whether they agreed wit his  instructions or not.  If RBKC disagreed, they were obliged to tell F the reason for their full or partial refusal to comply,  NONE CAME.