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, 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.
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“, 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.
Dr Zohra in her recent, confused and perhaps intentionally, confusing intervention to resolve the impasse, 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.
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.
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.