2nd October 2018 – Note:
In respect of the documents sent to the LGO, legislation required RBKC to prepare a list of all the documents sent without F’s consent and/or knowledge, clearly stating the nature of the documents, the authority and the reason for their disclosure. The 146 documents should have some kind of a reference, so that it could be cross-referred to the ‘list’. As there is no evidence of these, it can be assumed that the list was NEVER prepared. Interestingly, the LGO was kind enough and let F have copies of all the documents received from RBKC. They were all 1:1 copies. Whereas, the copies of the Care Plan Review, were so reduced to render them almost illegible. Coincidence? Maybe.
Very much like the ‘formal request’ for F’s HIV related information. That seems NOT to exist either.
As F have not seen any evidence of its existence, as late as 29th August 2018, F submitted a Request for Information, asking for a copy of this document.
The Freedom of Information Act requires RBKC to respond within 20 days. On 5th October 2018 Mr Anthony from Westminster City Council replied, indicating that a reply should be forthcoming within the next 20 days.
As of 8th November 2015, F did not receive a response; he wrote to Mr Anthony. Needless to say, he received NO reply.
However, F learned one thing: Ms Stella Baillie has graciously RETIRED from public life.
This blog chronicles a sorry saga, full of confusion, obfuscation, indecisions and incompetence. It tries to find a proper justification of RBKC’s claims about their conduct of F’s assessment for Adult Social Services and the subsequent disclosure of his HIV status and related clinical information, without his consent or knowledge.
F and his friends approached the matter with an open mind, trying to find out proper legal justification for both concerns. This proved far more difficult than imagined.
In respect of the disclosure of his HIV information, it became evident only in September 2015, when a public and media frenzy resulted from an ‘accidental’ disclosure of emails belonging to London Soho’s HIV Clinic, that his concerns were justified. A disclosure of such a sensitive personal information without explicit consent is a very serious matter.
Here are brief details of the saga:
After F’s discharge from St Mary’s Hospital in mid-2000, RBKC arranged for him, without carrying out a ‘needs assessment’ with 4 hours of DOMESTIC help, to assist him with everyday mundane domestic chores, he was unable to manage alone, due to his poor mobility and sensory problems, caused by bad stroke.
There is no evidence that an assessment for this service was carried out later on.
He was awarded the highest rates of both elements of the Disability Living Allowance, DLA.
Due to disregard for basic ‘Confidentiality‘ and the possible consequences this may cause, RBKC changed the email ‘signature block‘ of their Adult Social Service Team. When F’s Social Worker sent an email to a maintenance contractor, he implied by use of the signature block, that F may be HIV+ and/or physically disabled, or both, causing F much concern and distress. When he complained, the block was changed.
To ensure that his personal information was handled in accordance with his wishes, F issued in 4th May 2010 an amendment to his ‘Information Sharing Agreement’.
This instructed RBKC that his explicit written consent must be sought when a disclosure of his personal information is contemplated. He also ordered RBKC to remove all HIV+ relevant information from F’s files.
Although asked for confirmation, this never arrived. Time moved on and F had no reason to assume that RBKC failed to take any action, as transpired much later on.
Some years later he discovered that the amendment was in fact a Notice, in accordance with paragraph 10 of the Data Protection Act, which required RBKC to reply within 21 day, confirming whether they will comply with his instructions, or give proper reason for refusing to do so. ICO’s guidance on paragraph 10 matters provides additional information. RBKC failed to comply with this requirement.
In March 2010, RBKC decided to carry out F’s ‘Financial assessment’.
In October 2010, RBKC decided to carry out a FIRST EVER ‘ASSESSMENT’ of F’s needs.
When F discovered the relevant Department of Health guidelines, he found that RBKC failed to comply with all of the provisions, he complained to RBKC.
When RBKC could not provide credible defense for their non-compliance; F was was referred to the Local Government Ombudsman, LGO to whom he complained on 12th July 2011.
During his ‘investigation’, the LGO sent on 24th August, 2011. a request to RBKC for documents.
On 8th December 2011, LGO told F that he received copies of Care Plan Reviews, dating back to 2000. He confirmed to F on 12th January 2012 that he would not have asked for them, as they would serve no purpose.
Remembering his May 2010 amendment to his ‘Information Sharing Agreement‘, assuming that action was taken by RBKC on his instructions, he became concerned about the disclosure of information without his consent/knowledge.
He asked RBKC for their justification to disclose his information without his consent. At this time F was not aware as to what was actually sent to the LGO, as he was not told by RBKC of this, as he should have been..
On 5th January 2012 F received from Ms Husain RBKC’s justification, which was reconfirmed by Ms Walker on 13th January 2012 that DPA’s paragraph 35 and paragraph 29 of the Local Government Act 1974 permitted disclosure of his confidential information without his knowledge or consent. RBKC’s Chief Solicitor, Ms Parker, confirmed on 22nd February 2012, that LGA’s paragraph 29 was relevant authority for disclosure without F’s consent.
Unhappy with this justification on 5th January 2012 F sought ICO’s opinion. It was not a complaint, as thought by the ICO, as F was unsure whether any wrongdoing had occurred.
Realising that he was perhaps not aware of all the relevant legislation, F just wanted to know what was the ICO’s position in this matter, not knowing the extent of the disclosure.
In his brief ‘assessment‘ dated 23rd January 2012, the ICO sided with RBKC and swiftly closed the ‘case’ without offering F the chance to appeal the ‘assessment’ without providing any other advice, as he was permitted to give by paragraph 51 of the DPA, particularly as F expressed concerns about HIV information. The ICO chose to ignore that CONFIDENTIALITY played a major role in this matter.
This was also completely ignored in a case review.
A few days before, F received LGO’s ‘decision‘ dated 17th January 2012.
Curious as to what was actually sent by RBKC to the LGO, F asked and on 11th February 2012 received copies of the documents sent to the LGO.
F became very concerned, when he found that the bundle contained more than 130 confidential documents, culled from his file in his Social Worker’s custody.
The large bundle contained not only the NEVER SEEN BEFORE, UNVERIFIED AND UNSIGNED HANDWRITTEN ORIGINAL Assessment document, the ASAQ, requested by the LGO, but also copies of unsigned Care Plan Reviews, dating back to 2000. Some of them contained not only the fact that F is HIV+, but also clinical details of his condition’s progress, the life saving medication he must take and the inevitable side-effects he suffers as a consequence.
The bundle also contained 17 pages relating to F’s former domestic help’s confidential Income Tax Rebate details; which have absolutely nothing to do with F or anybody else, for that matter.
At this time F was not aware of any Statutory Restrictions, Article 8 of the HRA, paragraph 10 of the DPA or the ICO ‘Data sharing Code of Practice’.
F complained through his MP to the PHSO in October 2012. Without taking into consideration any of his concerns and comments, the PHSO endorsed the ICO’s assessment.
When F discovered that his Social Worker had to adhere to his professional Code of Conduct, on 19th February 2013, he submitted a complaint to the Social Worker’s regulators, the HCPC. The Social Worker was not even asked for his statement of events. HCPC obtained a statement from his employer, RBKC, who claimed that if a ‘formal request for information’ existed, the Social Worker could not prevent access to my confidential information.
It transpired much later that RBKC could NOT provide a copy of this crucial document.
Throughout the process, F searched for legal advice, for a fee for free or within the Legal Aid scheme. He found none. Even specialist organisations such as THT, NAM, NAT were of no constructive help. Although referred on many occasions to the CAB, this organisation proved to be nothing but confused and confusing.
Even with the Law Society’s not inconsiderable help, F was unable to find anyone with the legal expertise, or willingness, to get involved in this rare matter, involving HIV.
Had F been a fraudster, thief, child molester, illegal immigrant, oo whatever, he could find a plethora of advice, for free. However, when HIV is mentioned, this suddenly disappears. He was unable to find advice for free or for a fee.
It appears that as there is a dire dearth of legal information on this very narrow legal matter and no precedent , legal professionals do not want to get involved in such a sensitive and rare matter. F even explored the possibility of a LiP. He tried to find a McKenzie Friend and a Mediator; both without success.
Many of those approached for advice either did not reply, or expressed their inability to handle such a matter. None offered the basic advice. Very frustrating indeed.
As recently as 24th January 2017, the Legal Aid Agency , told that F Article 8 of Human Rights Act may be at play in his case and he could apply for Legal Aid, should he wanted it. .
The inability to find a proper justification for his concerns, F astonished at the confusion, incompetence, obfuscation. Unfortunately, this exacted a toll on his general health and he become to suffer from stress related ailments.
This was exacerbated by a statement by RBKC’s Ms Maclean, on 14th January 2013, arrogantly defending the disclosure of F’s HIV relevant information. Not to do so, would be prejudicial to RBKC ‘REPUTATION’.
F obtained many answers from the ICO, Department of Health, the NHS and many local authorities. Some were helpful, some confusing and even contradicting their earlier statements.
They all confirmed that there is no evidence that a case/complaint has even been lodged against anyone not only for the disclosure of person’s HIV+ status without consent, but also violation of the NHS Statutory Restrictions on data handling but also Common Law of Confidentiality or Article 8 of the Human Right Act, for the unauthorised disclosure of individual’s HIV+ status without his consent/knowledge. Therefore, there is no precedent.
On 24th November 2014, RBKC offered F to delete his HIV specific information, providing he undertakes not to take any legal action in the future. F declined . This confirmed that despite his instruction in 2010 to delete all HIV specific information, NO action was taken by RBKC to do so.
This confirms RBKC Chief Solicitor’s very poor understanding of the matter. How could she remove all those documents held by the LGO’s is unclear. It does NOT matter. The FACT that F is HIV+ has been disclosed and cannot be deleted from the minds of all those at the LGO, who read the documents.
We could not find any evidence that there is an English legislation which compels anyone to disclose other person’s HIV status to anyone, if he did not want to do so.
In respect of disclosure of someone’s HIV status and the dilemma surrounding it is clearly described in Brent v Mr N & P.
In early 2014 F was sent by RBKC, over a normal email service a copy of a letter issued by a Hospice in 2000 with graphic description of his physical condition at that time, clearly citing F’s HIV+ status and relevant clinical details. . F was not aware of this letter which breaches all the provisions relating to patient confidentiality and all associated laws and regulations and caused him unnecessary concern and distress. No one could confirm who asked for it and why.
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