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.

Current status

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

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.  She withdrew her assistance, leaving her “legal team” to cope.  It seems she has given up…

To proceed further and get the stuff moving, we have decided that we should go way back to the beginning of this saga, May 2010.   To satisfy ICO’s advice, we have decided to start the process completely anew, taking into consideration DPA and DGPR 2018 .  The process is taken up on the Re-presentation page-2019. 

2nd May 2019: Unexpectedly, RBKC’s Ms Cheng, who is the  Reablement Team Manager, attempting to clarify the difference between reablement and the entitlement to six-week domestic help, relevant to the Post Operation Assistance.

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.  This was in effect a Notice, issued in line with paragraph 10 of the 1998 DPA.  ICO’s  guidelines  on handling of paragraph 10 matters,  confirm this assumption.

Although F requested RBKC  to confirm his instructions, RBKC were legally obliged to reply within 21 days.  F should have been told  that RBKC will comply with his Amendment, in its entirety, or told  why RBKC could NOT comply, clearly stating the legal reasons for this decision.

 THE RESPONSE TO  F’s Amendment, or the RESPONSE, as required by paragraph 10, NEVER CAME.

Had RBKC responded in a positive way, accepting all the instructions and carried them out, this Blog would not exists, as there would NOT have been any information in August/September 2011 to disclose – it would have been removed.

Had RBKC responded in an unacceptable way, F would have taken the appropriate action to ensure the removal of his HIV relevant data, which RBKC should not have had in the first place, as they DO NOT provide any services which DIRECTLY affect the HIV virus.  All of the services provided by local authorities are exactly the same if the service user was HIV+, or NOT.

It is ONLY the service users’ HIV specialist who provides specialist  medication, NOT available from a High Street chemists, which DIRECTLY affects the progress of the condition.  This is an exclusive service.  ALL OTHER SERVICES, including those provided by GPs, are DEEMED TO BE NON-HIV SPECIFIC.   This includes any and all services provided by local authorities.

In late November 2019: F discovered that  the criteria for the provision of the one-off post operative temporary domestic care, should NOT  be decided on whether he was receiving PERSONAL care. He wrote to RBKC on the matter.

24th March 2019: Although the Department of Health statement that “local authorities are not entitled to ask for information..”, F wants to find out if there is a legal basis to this statement.  In this context he asked the DHSC on 24th March 2019 about  this.  Although reminded that their reply is late, as of 29th April 2019, they are yet to reply.

15th March 2019:  One important element has not yet been clarified:  As there was NO “formal request” for F’s information, compelling his Social Worker to afford access to his files, how was this information removed from F’s files?

What is the legal status of this imaginary, non-existent  “formal request”?   We assume that this was  part of “notion to prevent proper investigation“. 

F asked the ICO for clarification as to who should be made aware of this breach.

On 23rd January 2019, Ms  Tasnim Shawkat  unconditionally told F “that If you have a specific request then please let me know and I can pass your request on to the relevant person in the Council.”  It is now clear that if she passed F’s request for copies dated  30th January 2019,  which was copied to those responsible at RBKC, it was blatantly  ignored.   It perhaps would be a proper way to submit his request in accordance with  paragraph 45 of the  Data Protection Act 2018, to get it off the ground and require RBKC to respond.

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.

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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.

 

 

 

Adult Social Care Assessment Guidelines

The  new guidelines for the conduct of Adult Social Care  Assessment, the “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“, must be followed by all local authorities in the conduct of these assessments.

Paragraph 107  provide for the possibility to complain should a service user be unhappy with the conduct of the assessment. When the local complaints process is exhausted, the service user may complaint to the Local Government Ombudsman, or as he is now called the “Local Government and Social Care Ombudsman.” 

F had indeed completed the local complaints process and ended up lodging a complaint with  the LGO, as addressed on the LGO page.

However, there is NO mention of who is responsible for the oversight of the conduct of these assessments and independent external audit of  local authorities’  compliance with the Guidelines.  We could NOT find any information relating to this element of assessment.    This would suggest that local authorities can conduct assessments in a fashion completely suitable to  their agenda.  In order words, assessments could be fixed to suit a particular situation, without  any fear of eventual audit and possible retribution, as none of these exist.

Serious questions exist with the interpretation of paragraph 54, which lists the four Grades: Critical, Substantial, Moderate and Low.  It would appear that each local authority can interpret these as they feel fit.  Therefore, inconsistencies may/do exist and the decision of grading may be a matter of a “postcode lottery”,  devoid of any consistency in social care provision.

One of the conditions of the ‘Critical‘ grading to be satisfied is  if “life is, or will be threatened and significant health problems have developed or will develop...” 

Who is to assess these elements?  A Social Worker, who has no medical qualifications and is expected to assume the role of God, to venture and hazard a guess “when significant health problems will develop?”  Today, next week, next year, when?  This is vague, that, frankly, any member of the human race will in theory qualify for this definition, as eventually, whenever, we will suffer ill health, of some sort.

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Care and Support Plan Review

First of all, let’s establish what service(s) F receives from RBKC:

Since his discharge from hospital in  June 2000, he was  provided with the services of a “domestic carer/cleaner”,  as explained on early events page.

He was provided with these service because of his physical/sensory impairment and NOT because he is HIV+.   The same service would be provided to other service users, irrespective of their HIV status.

Ms Daintith’s tries to give the impression in her letter to F dated 2nd March 2012 that “As you are not receiving a service from us at present, that F was ONLY receiving  the  services of a “domestic carer”.  This is an  a wrong assumption, which Ms Daintith dreamt up, to suit the situation. 

In fact,  F is also in receipt of other “services”, among them assured  tenancy on his accommodation and the maintenance of it.   He also receives Housing and Council Tax Benefit,  Freedom Pass and a Taxi Card.  He can also avail himself of other community services.     FOI Request to RBKC confirmed that these would be considered as “services”.

Social Services are obliged to carry out regular  “Care and Support Plan Reviews” with their service users,   to review their satisfaction, or not,  with the service(s) provided,  as shown on  a Review dated 5th February 2009 – “what are the objectives of the care package.”

These were also carried out by F’s Social Workers between mid-2000 and October 2010.

Although these Reviews provide a space for the service users’ signature, confirming veracity of the information, F was NEVER given the opportunity to do so.  In fact, he was NEVER even given a copy of the Review for his information.   

Therefore, he was NOT at ALL aware what information was actually recorded on these Reviews, which, it is assumed,  resulted from handwritten notes made by the various Social Workers whilst interviewing F about his satisfaction with the “service”.  It MUST be remembered that these interviews are carried out in an atmosphere of CONFIDENTIALITY and therefore requiring to be treated as CONFIDENTIAL.

On 14th May 2011 F asked RBKC for copies of all of his assessment and Care Plan Reviews, which he received on 6th June 2011.

   He found that NOT A SINGLE document was reviewed and signed by him, confirming the veracity and correctness of the information.

He found that, had be been given the opportunity to review these Reviews, he would have NEVER agreed for details of his HIV+  diagnosis and details of its progress to be recorded and eventually made available to whomever.

On review, it came to light that information on these Reviews was either incorrect or incomplete.  It appears that  they  reflect the views of various Social Workers, none of whom had qualifications to deal with service users suffering from sensory/physical impairments, to arrive at a credible opinion, rather than F’s view. 

An example of this inventiveness  is Ms Desmond Owusu’s Care Plan Review  when he visited F on 18th March 2010, the same day Ms Baillie told F that henceforth he will be responsible for the entire cost of his care.  There was no explanation or justification for this decision.  All spaces, which should perhaps should relevant amounts, were blank.

As  Mr Owusu’s visit became irrelevant, particularly  when he suggested to F that he could help him with how to manage his money, F told him leave, which he did a few minutes later.  Yet, he was  able to “create” a Review on 26th March 2010.

In respect of signed Reviews, we asked a few local authorities, who confirmed that all service users are given a copy of their Review.  They are either requested to sign and return the Review, with relevant amendments, if any, or inform the local authority to correct the Review.

Anyway, in ALL CASES, the service  users are given a copy for their records.  THIS WAS NOT THE CASE with  F’s Reviews.  It can be assumed that the practice of NOT  giving a copy to the  service users is widespread and indeed very convenient.  It would be naive to assume that  Ms Baillie was NOT aware of this heinous  practice.