Some members of society are recognised as needing protection, for example children and vulnerable adults. If a person is identified as being at risk from harm we are expected as professionals to do what we can to protect them. In addition we are bound by certain specific laws that exist to protect individuals. This is called “safeguarding”.
Where there is a suspected or actual safeguarding issue we will share information that we hold with other relevant agencies whether or not the individual or their representative agrees.
There are three laws that allow us to do this without relying on the individual or their representatives agreement (unconsented processing), these are:
Section 47 of The Children Act 1989
Schedule 1, Part 2, Section 18 of Data Protection Bill 2018
and
Section 45 of the Care Act 2014
In addition there are circumstances when we will seek the agreement (consented processing) of the individual or their representative to share information with local child protection services, the relevant law being;
Controller contact details
NHS South West London Integrated Care Board (ICB), 120 the Broadway, Wimbledon, London SW19 1RH
Data protection officer contact details
Strategic information governance subject matter expert: [email protected]
Purpose of the processing
The purpose of the processing is to protect the child or vulnerable adult.
Lawfulness conditions and special categories
The sharing is a legal requirement to protect vulnerable children or adults, therefore for the purposes of safeguarding children and vulnerable adults, the following GDPR Article 6 conditions apply:
For consented processing;
6(1)(a) “the data subject has given consent to the processing of his or her personal data for one or more specific purposes”
For unconsented processing;
Article 6(1)(e) “for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller”;
And the following Article 9 condition for processing special category personal data:
Article 9(2)(b) “…is necessary for the purposes of carrying out the obligations and exercising the specific rights of the controller or of the data subject in the field of …social protection law in so far as it is authorised by Union or Member State law..”
We will consider your rights established under UK case law collectively known as the “Common Law Duty of Confidentiality”*
Recipient or categories of recipients of the shared data
The data will be shared with the ICB quality and nursing directorate safeguarding teams.
Rights to object
This sharing is a legal and professional requirement and therefore there is no right to object.
General Medical Council guidance
Right to access and correct
The data subjects or their legal representatives have the right to access the data that is being processed or shared and have any inaccuracies corrected. There is no right to have accurate medical records deleted except when ordered by a court of law.
Retention period
The data will be retained for active use during any investigation and thereafter retained in an inactive stored form according to the law and national guidance.
Right to complain
You have the right to complain to the Information Commissioner’s Office (ICO).
Contact the ICO online or call their helpline on 0303 123 1113 (local rate) or 01625 545 745 (national rate).
There are National Offices for Scotland, Northern Ireland and Wales.
References
* “Common Law Duty of Confidentiality”, common law is not written out in one document like an Act of Parliament. It is a form of law based on previous court cases decided by judges; hence, it is also referred to as ‘judge-made’ or case law. The law is applied by reference to those previous cases, so common law is also said to be based on precedent.
The general position is that if information is given in circumstances where it is expected that a duty of confidence applies, that information cannot normally be disclosed without the information provider’s consent.
In practice, this means that all patient information, whether held on paper, computer, visually or audio recorded, or held in the memory of the professional, must not normally be disclosed without the consent of the patient. It is irrelevant how old the patient is or what the state of their mental health is; the duty still applies.
Three circumstances making disclosure of confidential information lawful are:
- where the individual to whom the information relates has consented;
- where disclosure is in the public interest; and
- where there is a legal duty to do so, for example a court order.