Desired Outcome

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 replynext 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.

  1. 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.
  2. 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.

Fatima Zohra

On 9th August 2019: Ms Tasnim Shawkat, WCC’s “Director of Law” (another unregulated fancy job title, without any clout) decided that she could not let F know what she would like to discuss to resolve the long standing impasse.  She withdrew her assistance, leaving her “legal team” to cope with the case  She gave up.

Whilst waiting for RBKC’s response to his 9th  August 2019 Request for a copy of RBKC’s response to 2nd part of F’s Amendment,  due by 10th December, 2019,  on 3rd December 2019, Dr Fatima Zohra  chimed in, offering a review of  F’s concerns.  Yet another person assuming to have the full legal knowledge of how to deal with  such a  rare occurrence.  As it  turned out, UNIQUE event of sharing person’s HIV+ status with another without consent.  Without a PRECEDENT and therefore NO legal guidance on the subject.

To conduct an impartial review, she should have asked  whether  RBKC have complied, as they were legally  obliged to do, with ICO’s “Data Sharing Code of Practice, where section 4 is crystal clear about “Data sharing and the law.”

It  would be absurd beyond belief  to think that Dr Zohra is NOT aware  of this requirement and  not fully familiar with all legislation governing  Data  Sharing  with others.  If she does not, what is she doing in the post of a “Data Protection Officer”?

It is evident  that her knowledge required above, is sadly missing.  She does not even understand the basic principles of CONFIDENTIALITY.  Otherwise, her initial response should have been that F’s information is deemed to be CONFIDENTIAL  and  handling of it must be treated as such.  That would have put the matter in a different light and treated as addressed elsewhere.

Instead, in her  confused and confusing  missive  reiterated  that paragraph 32 of the DPA permitted RBKC to disclose F’s HIV+ status to the LGO.  

In a customary RBKC ingrained belligerent arrogance avoided replying to F’s requests for a copy of documentary evidence that RBKC replied, as they were legally obliged to do by paragraph 10-(3)-(a) or (b), to the 2nd part of F’s  May 2010 Amendment to his  Information sharing Agreement.  This dealt with instructions for RBKC to delete ALL HIV relevant information from F’s file.

Dr Zohra expertly glossed over events the confused events   IN 2000 and before 2010. 

Sadly, her approach still confirms  the long standing findings by the Law Commissions in 2014, that local authorities have poor understanding of data protection legislation; due to poor training and lack of proper legal advice.

She wholeheartedly forgot that 17 pages of Mr Sionville’s CONFIDENTIAL Income Tax Rebate information was also disclosed to the LGO.  Why on Earth was this necessary, when he had already left F’s employment BEFORE the assessment.

F promptly replied on the same day, drawing Dr Zohra’ attention to the fact that HIV relevant information is subject to NHS STATUTORY RESTRICTIONS.

Therefore, Dr Zohra’s arguments do not hold water and her “Remedies” are nothing but a way of wriggling out of a  serious “breach of Confidentiality”, as para 35(2) is irrelevant.

It must be remembered,  that disclosure of F;s medical condition is a violation  of Article 8 of Human Right Act, which Dr Zohra carefully avoids in  her “review”.

It

Re-consideration of F’s concerns 2019

The ICO  does not keep records of cases beyond a two year period.  Therefore, he is unaware of F’s request for advice in 2011, regarding the legality of the disclosure of his HIV+ status.

We have decided, to start from the very beginning, that being May 2010, when F presented his amended Information Sharing Agreement.  He received NO reply.   RBKC should have realised that his amendment was in fact a NOTICE, in line with paragraph 10 of the DPA 1998.  Although obliged to reply, RBKC chose to ignore this undertaking and did nothing at all.

On 9th August 2019, F submitted a Request to RBKC  for a copy of the “confirmation” requested in the amendment and of RBKC’s response to para 10.  

On 14th August 2019,    RBKC confirmed receipt of F’s request. An interesting point arose from this message. F was told that he may NOT be given some information.  This is curious, as he asked for copies of letter(s) issued in 2010, addressed to him, confirming understanding of his  Amendment to his Information Sharing Agreement.

On 16th August 2019, F submitted a request to RBKC to reconsider Ms Parker’s suggestion made in 2014, to delete his information.  He suggested that RBKC should come up with a new solution, which should include a good settlement.

On 21st August 2019, F asked the ICO for clarification of DPA’s paragraph 10, in respect of what should happen next, if the data controller, FAILS to reply, as he is legally obliged to do.   His response is still awaited.

2019 ICO review

On 19th March 2019, the Information Commissioner, ICO  replied to F’s lengthy message relating to disclosure of information,  He told  F that “Whilst I understand the substantial body of your complaint took place before the implementation of the General Data Protection Regulations (GDPR), any request made to further understand this will now be covered by the updated data protection legislation.”

On 9th May 2019, we had a new look at the very first event in this saga: F’s May 2010 Amendment to his Information Sharing Agreement.

On 9th August 2019, F submitted a Request to RBKC  for a copy of the “confirmation” requested in the amendment and of RBKC’s response to para 10.

On 14th August 2019,    RBKC confirmed receipt of F’s request. An interesting point arose from this message. F was told that he may NOT be given some information.  This is curious, as he asked for copies of letter(s) issued in 2010, addressed to him, confirming understanding of his  Amendment to his Information Sharing Agreement.

15th August 2019: ICO  told F that he would prepared to re-consider F’s concerns about the disclosure, in light of the new 2018 DPA/DGPR.

The Information Commissioner, the ICO  does NOT keep records of cases beyond a two year period.  Therefore, he is unaware of F’s request for advice in 2011, regarding the legality of the disclosure of his HIV+ status.

We have decided, to start from the very beginning, that being May 2010, when F presented his amended Information Sharing Agreement.  He received NO reply.   RBKC should have realised that his amendment was in fact a NOTICE, in line with paragraph 10 of the DPA 1998.  Although obliged to reply, RBKC chose to ignore this undertaking and did nothing at all.

On 16th August 2019, F submitted a request to RBKC to reconsider Ms Parker’s suggestion made in 2014, to delete his information.  He suggested that RBKC should come up with a new solution, which should include a good settlement.

On 21st August 2019, F asked the ICO for clarification of DPA’s paragraph 10, in respect of what should happen next, if the data controller, FAILS to reply, as he is legally obliged to do.   His response is still awaited.

On 14th January 2019, F advised RBKC, as a matter of courtesy,  that this Blog has gone “public“, its content available worldwide,  to view and comment on.

Unexpectedly, on 23rd January 2019,   F received an unsolicited reply from Ms   Tasnim Shawkat,  Westminster City Council’s  “Manager of Law.”  Another, fancy unregulated Job Title, that any Tom, Dick, Harry or an itinerant bottle washer,  could be given.  Obviously, to bamboozle the unsuspecting “general public” to believe that  it has some mythical gravitas.  Whereas, it has NONE.  Surprised by her mere referral  to his complaint to the LGO,  on 23rd January 2019,  he submitted a clarification.

In her response dated 24th January 2019, Ms Shawkat advised F that she was “unable” to view the Blog.  F responded on 30th January 2019, suggesting to Ms Shawkat what she should ask RBKC to do.  This gave F the opportunity to reiterate, in an abridged way,  RBKC’s failures, rather than refer to the Desired Outcome referred to below.

It was assumed, obviously quite foolishly, that RBKC would take note of F’s reiteration of his request for copies of documents. 

As of 9th March 2019, there has not been a peep from RBKC.    Perhaps the time has come to again request these documents, this time in accordance with the Data Protection Act 2018.

Ms Shawkat replied to F on  18th February, 2019, that she had re-read his message and offered to meet F, rather than continue to correspond by email.  She assumed, quite rightfully, that her messages would  be published here.  F replied on the same day, advising Ms Shawkat that he is awaiting  response to two questions raised on the Blog and will contact her soon.   It should be interesting to find out what she has to  discuss with F.

In the meantime, F is submitting to the ICO, a Request for Clarification of a suggestion made by the Ministry of Justice, that the ICO should be  asked the origin of the  “formal request”.

 

Formal Request for documents

During HCPC’s “investigation” into F’s complaint about his Social Worker, HCPC told F on 25th July 2013, that RBKC told HCPC:

at “c) if a formal request was made by the legal team for information contained in a Service User’s file, it would be the Service Manager within the team, who would have authorised the sharing of information with the legal department, not Mr Leak.”

at “d) Mr Leak was not in a position to obstruct  the legal team from obtaining information from your files.”

Before considering the “”formal request“, let’s consider Mr Leak’s professional as well as legal obligations to F:  Mr Leak was obliged, by the terms of his licence, to keep F’s “information SAFE and CONFIDENTIAL at all times.”

These obligations are clearly defined in HCPC’s “Guidance on Confidentiality” where the “responsibilities” and “the law and consent” are clearly addresses.  It would appear that HCPC chose to ignore their own Guidelines to obfuscate F’s concerns.

Sceptical about the RBKC’s statement about  a “formal request” and “access to his file“,  on 10th September 2013, F sent an FOI Request to many local authorities,

In their replies, NONE endorsed the statement made by RBKC.

The HCPC requested information from the ICO, LGO and RBKC, who are NOT registered with the HCPC and therefore NOT obliged to follow any of the HCPC’s guidelines. 

There is NO evidence that Mr Leak was ever  contacted to provide his version of events, as he should have been, as he ALONE is the REGISTRANT, obliged to follow HCPC’s  guidelines,  he himself responsible for his actions.  

Furthermore, there  is NO evidence  that RBKC or Mr Leak were ever asked for a copy of the  “formal request”, which had such a powerful legal force, to compel Mr Leak to forget his responsibilities and permit a wholesale cull,  by whomever,  of 146 confidential documents from F’s file, in Mr Leak’s custody and under his responsibility.

In respect of contacting the LGO, the request should ONLY be for a copy of the “formal request”.  We will never know, as HCPC refused to provide copies of correspondence between HCPC and the LGO, addressed below.

F requested RBKC to let him have a copy of this crucial document.  To this date, RBKC have been unable to provide it.

This topic is discussed in detail on the HCPC page.

Later in the year, F wanted to know what  information the HCPC sought as evidence from  those who were involved in the matter.

On  10th October 2013, F sent a Request to HCPC, asking them for copies of all correspondence exchanged between HCPC and  the LGO, RBKC, Mr Leak.  He also asked for HCPC’s definition  of “Misconduct” and “Lack of Competence“, which feature in the HCPC’s “Guidance on Confidentiality“, as reasons for further action.

HCPC replied on 5th November 2013.

HCPC’s Claire Gascoigne told F that” disclosure of any information would prejudice HCPC’s conduct  its fitness to practise process”   However, as early as  23 July 2013, Mr Kebir told F that the case will remain closed.  Therefore, there was no process of anything underway.

She goes waffling on about what has NOTHING to do with the complaint and the request for copies of documents.  Obviously, wholeheartedly  hoping to baffle F’s brains with  what was nothing but “bullshit”, hoping that he will swallow it all, hook, line and sinker and shut up.

Her ranting had  ABSOLUTELY NOTHING of CONFIDENTIAL OR CONTROVERSION nature, to do with F’s request, unless HCPC had something to hide; uneasy with disclosing this to F. 

In fact, the ONLY document/information, HCPC should have asked all of those cited above, was to provide a copy of this powerful “formal request”, which compelled Mr Leak to toss aside his professional and legal responsibilities to F.

It can be assumed that HPC failed to ask anyone for a copy of this important documents; perhaps because they were well aware of its NON-EXISTENCE.

The ONLY document issued, PUBLICLY,  by the LGO, is  the Request for documents from RBKC, dated   24th August 2011.  F will never know of any other correspondence, exchanged in PRIVATE, as HCPC refused to provide it.

However, more seriously, it can be alleged that by the refusal to produce the requested information,  HCPC had conspired with  RBKC, to absolve Mr Leak of any  wrongdoing, thus perverting the  course of proper investigation, by making F believe that a “formal request” existed, therefore Mr Leak was at no fault whatsoever.  Hoping that F would NOT take the matter any further.  

This is addressed in some detail on the “perverting the course of justice” page.

.

 

  

Perverting the course of justice

On 19th February 2013,  F complained to the Social Worker’s new regulators, the Health Care Professional Council, HCPC, for  permitting access to F confidential file without consent, as defined in F’s May 2010 Amendment to his Information Sharing Agreement, which he failed to follow.

The details of F’s complaint  are described on the HCPC page.

However, the following merits separate mention:

HCPC told F on 25th July 2013,  that RBKC had confirmed at (a) to them that “Mr Leak was not directly responsible for the disclosure  of you information to the legal  team.”  

at (b)  F is told that ” it has been explained to us (by RBKC) that the legal team have access to all documentation which they require for their role”.

at (c) RBKC states  that “if a FORMAL REQUEST was made by the legal team for information contained in a Service User’s file, it would be the Service Manager within the team, who would have authorised the sharing of your information with the legal department, NOT Mr  Leak”.

(d) Mr Leak was NOT in a position to obstruct  the legal team from obtaining information from your files”.

.A FORMAL REQUEST must have existed, as  F’s 146 Confidential documents, were culled from his file in Mr Leak’s custody.  Some documents containing not only explicit disclosure of his HIV+ status, but also full clinical details about his condition’s progress, the life-saving medication he must take and the inevitable side effects he suffers as a consequence.

The ONLY  “formal request”  that F  was made aware of was made by the LGO to RBKC was on 24th August  2011, for “all the assessment documents for this matter (F’s complaint) and general comments.”  This is addressed in detail on the LGO page.

As F’s HIV relevant information was disclosed to the LGO, the “formal request”, must have contained an explicit request for this information.  Taking into consideration  the nature of the information, this could ONLY be disclosed under certain circumstances, satisfying the NHS Statutory Restrictions of data handling.

On a number of occasions, F asked RBKC to provide him with a copy of the “formal request”,  which would in fact, render Mr Leak impotent from preventing access to F’s confidential file and permit a wholesale  removal of 146 documents, sent to the LGO by Ms Parker, RBKC’s Chief Solicitor and a Monitoring Officer.

RBKC told F that they do not have a copy of this document.  Obviously, RBKC does not consider the LGO’s Request as  the “formal request” quoted to the HCPC.

The question now arises:

F cannot understand why HCPC failed to ask RBKC, during their “investigation” for a copy  of this crucial document,  so powerful to remove  Mr Leak’s legal obligations in respect of F’s confidential information..

It can be alleged that RBKC dreamt up the above narrative regarding Mr Leak’s powers, to perhaps initially convince HCPC of their right to disclose F’s HIV status and clinical information.  However,  it may have become convenient for the HCPC to accept this explanation, as it would get Mr Leak off the hook, bamboozle F and wholeheartedly  hope that he would accept this explanation, shut up and go away.

HCPC told F that they have asked  for information from various parties, including the LGO.  However,  there is NO evidence that Mr Leak was ask for his version of events, or even made aware of F’s complain to the HCPC.

It is quite possible, due to RBKC bad controls over access to personal information, that Mr Leak was NOT  aware of the cull of 146  documents from F’s file, as stated in HCPC’s response dated 23rd July 2013..

It can be alleged that RBKC manufactured of the notion that a “formal request”  existed, could be construed as an attempt by RBKC  at  “Perverting the course of justice“.  .

We understand that “the word pervert can mean “alter” but the behaviour does not have to go that far – any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice.

(This information is based on public sector information licensed under the Open Government Licence v2.0. The original information can be found here; https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard).

In order to properly understand the allegation of “perverting the course of investigation/justice”, On 24th May 2018,  F asked  the Ministry of Justice for clarification.  In their reply dated 29th May 2018, F was referred to the Information Commissioner.   F replied on 30th May 2018.

As of 1st March 2019 F has not contacted the ICO.   But will do  very shortly. 

Law Commission

The :Law Commission published two reports, which are of interest, as they address F’ concerns.

  1. Adult Social Care – Consultation analysis published in March  2011.  This publication addresses in some detail the process of establishing individual’s “eligibility for Adult Social Care”.

2. Data Sharing Between Public Bodies – scoping report, published in July 2014.  This report publishes actual conversations with various organisations and highlights the many problems local authorities have with the interpretation of the various  legislation dealing with data protection.  It confirms that there is a  poor understanding of data handling legislation, due to non-availability of proper legal advice from the “in-house” legal professionals. 

However, this ignorance is not an excuse for not seeking proper legal advice from external sources; for  example,  from the many legal professionals local authorities have on confidential retainers.  Some to ensure that they do not assist anyone in a case  against the local authority, or provide any advice; others to provide legal advice on how get out from a compromising situation.

Few HIV related legal cases

We wanted to find out if a complaint/case  has ever been brought against anyone for disclosure of person’s HIV+ status not only without consent, or informing the individual that the disclosure was about to happen, but also without having any legal reason to do so.

When we asked the NHS, Department of Health and the  Information Commissioner, they all confirmed that THEY HAVE NOT RECEIVED A COMPLAINT/CASE for this specific matter.

A search through the BILII, the legal cases index, did not bring up a single case  brought for this specific matter.

On the internet we found a posting by  Ms Lisa Webley, published in “The Litigator” magazine in 1997. 

It concerns the discrimination against individuals with HIV in respect of assistance with bringing  legal action against  those who have breached the legislation.

We can claim that throughout our investigation and search for legal assistance,   DISCRIMINATION exists on the grounds that F is the affected person.

Had F been a persistent thief, rapist, child molester, illegal immigrant, or anything else,  he could avail himself of proper legal advice, often for free, from many sources.  However, as soon as  HIV+ status matter was mentioned, there  was a deathly silence, or refusal to get involved in the matter.

The matter, is NOT at all that COMPLEX.   In the first instance, disclosure of person’s HIV+ status without his consent, or even knowledge, is a breach of COMMON LAW CONFIDENTIALITY.  In addition, there is the NHS Statutory Restriction on data  handling and Article 8 of the Human Rights Act.

However, nobody would touch the matter with a second hand barge pole.  We can claim that this is an example of OPEN DISCRIMINATION on the grounds that the complainant is HIV+.

We tried to contact Ms Webley who has  since 1997 climbed up the legal ladder.   She did not  respond to our enquiry.

 

Article 8 – Human Right Act 1998

Article 8 of the Human Rights Act also individual’s information.

During our research we came across  two cases in front of the ECHR,  relating to the disclosure of individuals’  HIV+ status without their consent.  Both cases, the Z v Finland and I v Finland happened some time ago in Finland.

More recent case, the Brent Council v  N  P  refers to the Article.

When F considered  handling his case as an LiP,  on 13th October 2016, he asked for advice from the Ministry of Justice Legal Aid Department.

He was told that his case would qualify for Legal Aid and should he wish to apply for it, it must be through a Legal Aid Solicitor.

As he could not find  such a professional, he decided to publish his concerns in this Blog and seek information, advice or just a comment  from the Social Media.

Dept Communities and Local Government

F became aware  that local authorities were obliged to follow the Department of Health’s “Confidentiality – NHS Code of Practice‘,  In order to get a  reassurance of this information, on 25th November 2013, F contacted the DCLG, as it was then.

He was very happy when the Department replied on 19th December 2013, confirming that what he  assumed, was actually true,

The DCLG’s reply is very clear in respect of handling of HIV related information.  It refers to the NHS Code of Practice, where paragraph 46 addresses  this point.   

Therefore, RBKC should have been guided by the provisions of this paragraphs, when considering the disclosure of F’s HIV related information.

F also contacted LIBERTY, the organisation allegedly concerned with individual and the Human Right Act.  F was  told that the “Confidentiality  NHS Code of Practice” applied ONLY to the NHS.   The statement above would  certainly contradict Liberty’s assumption.