Note for itinerant Barristers, who may be interested in helping. According to the MOJ, F would qualify for Legal Aid, if needed, for which he must apply through an accredited solicitor, who may work with you.
Latest update 20th March 2020. On 18th March 2020, F thanked the ICO for his reply and suggested that perhaps he could discuss the case on the phone with him. Mr Leeke in his reply dated 20th March told F that it may not be of any use to discuss the outcome and told him that he would not be the officer attending to the complaint, which may take up to 3 months to be seen,
NOW, F has to prepare his complaint for RBKC’s non-compliance with paragraph 10-(3)-(a) or (b), by not providing reply to the 2nd part of his May 2020 Amendment to his Information sharing agreement.
F should be grateful for any assistance from you, to prepare a comprehensive complaint.
We have to appreciate that other points in F’s matter are to be considered. For example, re-activate the Request regarding Article 8 of the Human Rights Act, which was breached by RBKC.
On 13th March 2020: As RBKC finally replied to F, telling him that they do NOT have a copy of the requested document, this specific item was complete. There was nothing more that RBKC could do. Local process has been exhausted.
Therefore, F updated the ICO on 13th March 2020, asking him whether there is a record that a complaint has ever been made to the ICO, relating to a para 10 matter, where an unauthorised disclosure of HIV related information was the subject. The ICO replied that this specific question should be submitted to the Information Department, which F done on the same day. Now awaiting their response.
Should the reply be that NO such complaint has been made, this would confirm that F’s matter is UNIQUE and has NO PRECEDENT to which the ICO may refer. It can be stated that we are now entering uncharted territory, without any substantial legal guidance. “Unpredictable outcome”, as stated by RBKC’s Director of Law, Ms Tasmin Shawkat.
Other update 2020: F found so many contradictions and absurd comments that he decided to clarify Dr Zohra’s 3rd December 2019 REMEDY. On 3rd February 2020, F submitted his comments. He also suggested what may perhaps be the “solution”.
It is obvious from Dr Zohra’s intentionally confused and confusing missives, she tried very hard to avoid to even mention the word CONFIDENTIALITY, let alone address the alleged breach.
With equal panache, she continued to avoid to acknowledge what was the matter in hand at the present time: F’s Request for a copy of RBKC’s response to the 2nd part of his May 2010 Amendment. She ignored continued reminders of this fact.
On 6th February 2020, F found it necessary to further clarify the matter, to ensure that Dr Zohra understands the matter.
On 10th February 2020, F advised the ICO that he will give RBKC another 14 days to come up with requested information (2nd part of May 2010 Amendment) or an acceptable solution, as referred to already: unconditional apology and substantial compensation. Should RBKC fail to respond, as is expected, we could not possibly see RBKC to forego the ingrained belligerent arrogant attitude, which allegedly blossomed under the leadership of Dr Quirke, to accommodate F’s requirements.
On 13th February 2020, F clarified the latest date by which RBKC should submit their response to his Request for the document, or their acceptable solution. 27th FEBRUARY 2020 is the latest date. If neither is received, F will be free to finally submit his COMPLAINT to the ICO, for RBKC’s failure to comply with his 9th August 2019 request.
On 14th February 2020, Dr Zohra told F that she will reply “next week“, addressing his latest correspondence to RBKC.
On 19th February 2020, F responded, that there was NO urgent need to reply, as RBKC has until 27th do to do.
Needless to say that as of 22nd February 2020, a Saturday after the “next week” has come and gone.
On 27th February 2020, Dr Zohra replied to F, after he sent her a copy of the ICO’s Procedures relating to paragraph 10 of the 1998 DPA. It would be mere speculation what was her reaction to this document. However, our goal was achieved, as Dr Zohra admitted that RBKC do not have a copy of the requested document.
She told F that’Sadly,…..”
“Sadly” for whom? This admission confirms that RBKC, such careful hoarders of individuals’ personal data, have NOT replied to F in respect of para 10-(3)-(a) or (b).
We have ascertained that Dr Zohra undertook the “review” at the behest of Ms Shawkat and had no access to F’s file held by the Adult Social Services.
As we have now completed the “starting point” for ICO’s re-assessment of F’s concerns, we will have to decide how to proceed further in this unique matter. We have informed the ICO of Dr Zohra’s response, for which we agreed to wait, and asked how should we proceed.
At the time same, we asked the Ministry of Justice for guidance relating to the time limit of Article 8 of Human Rights Act and the possibility to request an extension under special circumstances.
We consider here the possible remedy of a matter concerning primarily the disclosure of F’s HIV+ status, without his knowledge/consent, whilst RBKC were in NO way compelled/ordered to do so.
It must be remembered at all times, that there is NO documentary evidence that an official complaint or a legal case were ever brought against anyone in England, for the serious breach of CONFIDENTIALITY, Statutory Restrictions on data handling and Article 8 of the Human Rights Act, for the disclosure of individual’s HIV+ status without his consent. It is without a PRECEDENT. It is UNIQUE.
At the same time it should be remembered that NO individual or anyone else for that matter in England/Wales could be compelled to disclose his or anybody else’s HIV status.
It is entirely up to the individual to disclose his status to whoever he chooses to do so, realising that the disclosure may cause unpredictable IRREVERSIBLE consequences in his life. Therefore, it MUST ALWAYS BE the DEFAULT POSITION NOT TO DISCLOSE THIS INFORMATION.
Taking into consideration all of the contributing elements of this saga, it is clear that RBKC chose to ignore with impunity, not only a raft of guidelines relating to the processing of individual’s personal data, conduct of assessments for social care, but also important pieces of legislation. This is addressed in some detail on the relevant pages of this Blog.
Surprising to some may be that a line of text, appearing as innocuous words, could have turned out to have such a serious effect on the matter and be a “trigger” for subsequent actions by F. A line in a signature block used by undefined number of Social Workers, contained the words “Physical Disabilities and HIV Team“, A line approved by two senior Adult Social Care Services Executives, both of whom allegedly experienced Social Workers, one of the requirements of their licences is to ensure that their “service users’ information is kept CONFIDENTIAL at all times. It is clear that both of them were unable, despite their experience, see the possible problems this line of text may create.
Every time this was used, it inferred that the individual named in the email, may be Physically Disabled, but most importantly, have some dealings with the HIV Team. This is a blatant breach of basic Confidentiality, Statutory Restriction on data handling and Article 8 of the Human Rights Act. Looking at this event in the context of the Soho HIV Clinic incident in September 2015, this inference may have caused unwarranted anxiety and distress to undefined number of individuals, whose name may have been used in these emails during 2008.
RBKC’s claim that they were not made aware by anyone of this problem, may be true. However, it would be unlikely for RBKC to admit this and not having done anything about it until F’s complaint. It is quite possible that some individuals were aware of this blatant breach, but chose not complain, for fear of dragging their identity into the “spotlight” and perhaps getting involved.
RBKC’s alleged Data Protection expert, Dr Zohra’s 3rd December 2019 attempt to resolve the matter, was nothing but a contentious, confused and perhaps intentionally, confusing intervention to resolve the impasse. She claimed that the LGO’s Request for F’s information was treated as a “routine request”. This statement in itself is an admission that she does not know what she is talking about. Routine as a what? Pesky traffic fine, unwelcome Planning decisions, or oher routine infraction of local rules?
Far from this erroneous assumption. There is NOTHING ROUTINE about this Request. Any Request for information from “service users” file, held by their Social Worker, is deemed to be CONFIDENTIAL, and must be treated as such. This of course includes access to information. This must be restricted ONLY to those who are involved in F’s care, which in fact is NOT a single person in RBKC. as addressed elsewhere. When considering disclosing individual’s personal information, RBKC MUST follow ICO’s STATUTORY “Data Sharing Code of Practice”, where section 4 is relevant to F’s matter.
On 9th December 2019, Dr Zohra steadfastly maintaining RBKC innocence, told told F that “the council disagrees that it breached the DPA 1998 in obtaining or sharing your information.” She obviously failed to read, or chose to ignore on this occasion, section 4 of ICO’s statutory “Data Sharing Code of Practice“, which clearly states that any matters dealing with Confidentiality and Statutory Restrictions on data handling “which go beyond the requirements of the DPA,” should be taken into consideration.
Dr Zohra conveniently glosses over the requirement that local authorities MUST comply with ICO’s statutory “Data Sharing Code of Practice“, where section 4 applies. They should also take into consideration section 6.22 of DHSC’s “Data Protection Act 1998 – Guidance for Social Services“, which are clear as to what procedure should be adopted when disclosing personal information without consent.
Furthermore, RBKC should have been guided by DHSC’s “Data Protection Act 1998 – Guidance to Social Services”, where “Section 6 – Confidentiality of personal social services records” is of importance. Paragraph 6.22 – Disclosure without consent – disclosure for other purposes, clearly states that “an authority will need to disclose personal information to various bodies, with the power to order disclosure, when ordered to do so.
Professional and legal advice should be sought and considered in each case. Any information disclosed should be the minimum necessary to meet the requirements of the situation. Where such a disclosure is made, authority should record its reasons. “
Although claimed, the LGO has NO powers to order anyone to do anything. It was admitted to us by Ms Pooke of LGO, that if it becomes necessary to issue an order, this is OBTAINED, from the nearest Court – Westminster in their case, to issue a Court Order. The LGO NOT being a member of the Judiciary, CANNOT issue his own Court Orders. That’s the reason why they are so popular by the Government and others; their “assessments” are NOT worth the paper they are written on – how convenient to all.
RBKC were unable to produce a copy of the record, showing their reasons for disclosure of F information.
The ICO told us on 8th January 2016, that “If there is a piece of legislation which states that certain information should not be disclosed, such as the NHS (Venereal Regulations) 1974 as mentioned in your correspondence, this may also be in breach of the first principle of the Act, which says that ‘Personal data shall be processed fairly and lawfully’.
“Queries regarding potential breaches of legislation relating to the NHS would be best raised with the NHS itself, as such matters fall outside the ICO’s remit.”
Dr Zohra also told F that the deadline of 10th December 2019 will NOT be met by RBKC, as they have already provided legal remedy. RBKC offered a LEGAL REMEDY AFTER THE FACT. This is a nothing but an abject absurdity. How can they possibly offer a legal solution after F’s HIV status had been disclosed to those NOT authorised to have it? UNKNOWN number of individuals have been made AWARE of F’s HIV+ status. How on Earth will RBKC remove this AWARENESS from the memories of the UNKNOWN people? It’s tantamount to trying to close the gate after the horse had bolted over the horizon. Brent v P N showS the High Court ruling relating to a Brent Council’s quandary about a disclosure of ONE person’s HIV status to another person. A REMEDY must be sought before the anticipated action, to ensure legality.
Dr Zohra does not realise. or chooses not to realise, that what she offered as a “remedy” should have been submitted to F in May 2010, as part of RBKC’s response to his Amendment, BEFORE THE DISCLOSURE. NOT ALMOST TEN YEARS LATER, when all the anxiety, distress and concerns were experienced by F.
Had F been told this in 2010, he would have taken appropriate action at that time, BEFORE THE DISCLOSURE, that his medical information was removed. IT WAS AND IS NONE OF RBKC’s BUSINESS TO KNOW WHETHER A SERVICE USER IS HIV+ OR NOT.
Furthermore, applications for Adult Social Care, in compliance with NHSCCA or the latest Housing Act, DO NOT REQUIRE PRODUCTION OF ANY MEDICAL INFORMATION, FOR THE APPLICATION TO BE CONSIDERED. “IT MERELY HAVE TO APPEAR TO THE LOCAL AUTHORITY THAT AN INDIVIDUAL IS IN NEED OF ADULT SOCIAL CARE.
F requested RBKC to provide him with a copy of their reply to the 2nd part to his May 2010 Amendment to Information Sharing Agreement, which they were legally obliged to provide in line with paragraph 10 – 3-(a) or (b) of the DPA 1998. This deals with removal of F’s HIV relevant information. Clearly, nothing had been done, as an explicit letter stating details of his HIV diagnosis from the St John’s Hospice dated May 2000, was still on his files and made available to those who should not have it.
Furthermore, Dr Zohra conveniently fails to appreciate that there is also the matter of breach of Article 8 of the Human Rights Act. It should be appreciated that as there is a dire dearth of legal information relating to cases relating to handling of HIV relevant information, any recent references should be considered.
In this respect, the case brought by Brent Council v N P ,paragraph 16 of the High Court ruling is of interest and the more recent event at the Dean Street HIV Clinic provide some guidance. The MPN imposed on the Clinic shows the ICO’s attitude towards the very sensitive subject of HIV information handling and the effect any inappropriate disclosure may have on the individuals concerned, Also of interest are Z v Finland and I v Finland, dealing with Article 8 breach at the ECHR.
RBKC told HCPC that there was a “formal request” for F’s information, which rendered F’s Social Worker impotent from preventing access to F’s file. Despite numerous requests, RBKC were unable to provide a copy of this important document.
Until 14th January 2013, when F received Ms Maclean’s justification for the disclosure, claiming that it had to happen, in order to preserve RBKC’s REPUTATION, F assumed that the disclosure of his HIV status was a result of a mistake, poor understanding of the matter and more importantly, inability/unwillingness to consult relevant guidelines, or seek proper advice. It is clear that the nameless, faceless RBKC clerk, indiscriminately culled whatever information he/she felt fit, or perhaps of “interest”.
Surprisingly, NONE of the 146 documents provided answers to F’s allegations of non-compliance with DHSC Guidelines, all local authorities MUST comply with. Unsurprisingly, the LGO conveniently failed to ask RBKC for this justification. Merely, a Request was made for a copy of F’s “assessment documents”, which provided NO answers for the dereliction in compliance.
Ms Maclean’s statement could be regarded as a “trigger” in F’s increased concern, anxiety and unwelcome distress, realising that RBKC were aware of this mistake all along. To this date they have NOT provided a justification for anything – simply unable to do so.
F suffered unnecessary concerns, anxiety and distress, as addressed on the deterioration of health page. This must be taken into consideration when contemplating any retribution and/or compensation.
In respect of: the
Assessment for Adult Social Care, RBKC have been unable to provide a credible evidence that F’s October 2010 Assessment for Social Care was conducted in accordance with the DHSC Guidelines and provide VERIFIED and SIGNED Assessment document by F, confirming that the assessment had actually taken place and the assessment form submitted to the LGO, was actually used. As it stands, the UNSIGNED Assessment document could have been and perhaps was, completed by whomever, wherever and whenever, scoring the answers in such a way, to arrive at a predetermined outcome – and to deprive F of RBKC’s contributions towards the cost of his domestic help. The document, as it stands, has NO legal worth and should NOT have been used in any decision making process. F conducted some research regarding the legal requirement to sign documents. The only written comment he received was from well known legal authority on HIV/AIDS legislation.
- Therefore, RBKC’s contributions should be re-instated from the date they were stopped in January 2011, to current date. It should be paid as not requiring any accounting for it, in a lump sum.
- F should be paid a SUBSTANTIAL COMPENSATION for breach of CONFIDENTIALITY, STATUTORY RESTRICTIONS ON DATA HANDLING, PARAGRAPH 10 OF THE DPA, ARTICLE 8 OF THE HUMAN RIGHTS ACT and other relevant REGULATIONS, CODES OF PRACTICE AND GUIDELINES, RBKC are obliged to follow as a provider of Social Care and the Controller or Fs CONFIDENTIAL INFORMATION. In the process causing F substantial distress, anxiety and damage to his general health, wellbeing, quality of life, as described on the Deterioration of Health page.
Consideration should also be made of the fact that there is no evidence that neither of these events have occurred in the past. They are unique, without a PRECEDENT. Especially, in respect of the disclosure of F’s HIV related information. This is not to say, that disclosure did not occur. The perpetrators had enough sense and decency to ameliorate the consequences by attending to it without any undue delay, illustrated as recently as 2015 in the Soho HIV Clinic case.
In this case, the ICO imposed a MPN of £ 180,000 on the Clinic, in compliance with section 55A. For non-compliance with the 7th data protection principle, as provided for in Part I of Schedule 1 of the DPA and paragraph 9 of Part II of Schedule 1 of the DPA. The ICO was also concerned about the mere inference that the recipients of the Newsletter may be HIV+, thus having suffered unwarranted distress, anxiety and concern over this reckless behaviour by the Clinic.
Of interest is the Brent Council High Court action v N P. in 2005 The Council was not sure whether they could disclose ONE PERSON’s HIV+ status to ANOTHER INDIVIDUAL. The Council sought a decision from the High Court.
Whereas, in F’s case, RBKC were in NO way compelled to disclose his HIV+ status. it was disclosed willfully, wantonly, in very graphic clinical details, without F’s consent or even knowledge.