HEALTH AND SOCIAL CARE (COMMUNITY HEALTH
AND STANDARDS) BILL
Letter from John Hutton MP, Minister of
State at the Department of Health, to the Chairman
Disclosure of Information
I am writing to give a fuller explanation of the
intended use of the disclosure of information powers in clause
113 and the new sections 26ZA(4) and 26ZB(4) of the Children Act
1989 (inserted by clause 114).
Under the Data Protection Act 1998, personal information
about a data subject may be disclosed where the data subject has
consented, or without consent where processing is necessary for
the exercise of any functions conferred under any enactment. Disclosure
of information would therefore be permissible under the 1998 Act
in order to discharge the complaints procedures.
The Data Protection Act does not, however, override
the common law obligation of confidence which provides that where
information is conveyed on the understanding that it is confidential,
anybody disclosing the information without authorisation may be
liable to pay damages. There is an exception to this where information
is disclosed in the public interest, and those persons considering
disclosure of information would therefore have to conduct a balancing
exercise to assess whether the public benefit outweighs the negative
effect on the individual were the information to be disclosed.
The purpose of overriding this common law obligation is to avoid
the need for such a balancing exercise in relation to each piece
of information that is disclosed to those who have a role in considering
complaints, such as CHAI or CSCI, ensuring their access to all
Take, for example, a situation where a local authority
employee is accused of being abusive to an elderly person. The
subject of the complaint denies the abuse and there are no witnesses.
The local authority consider all of the information on their files,
including the employee's personnel files which reveal that he
had been disciplined for similar behaviour, and a report from
a psychiatrist which states that, although the complainant presents
as plausible, his evidence is extremely unreliable because he
has mental health problems. The local authority decide to take
no further action because they consider the complainant's version
of events to be unreliable. The complainant wishes the complaint
to be referred to the CSCI for consideration. It would be lawful
for the local authority to pass the personnel file and the psychiatric
report to CSCI under the Data Protection Act 1998 because processing
would be necessary for the exercise of the function of considering
the complaint. But, under the common law the consent of the employee
and the complainant to disclosure would be necessary, or it would
have to be shown that disclosure would be in the public interest.
The local authority seek consent. The employee agrees for his
personnel file to be disclosed, but the complainant refuses to
allow the psychiatric report to be disclosed. Clearly this is
information relevant to the determination of the complaint.
It would be difficult for local authority employees
responsible for passing information to CSCI to conduct a balancing
exercise for every piece of information relevant to a complaint
to assess whether it should be disclosed, and given the time and
resources involved this would inevitably delay the handling of
complaints. In some cases the delay would cause additional frustration
and distress for the complainant. These concerns would apply equally
to complaints about the NHS and social services.
Furthermore, requesting consent to disclose information
may, in some circumstances, alert the subject of the complaint
to the fact that the complaint was being made before all the necessary
information had been gathered, which may lead to destruction of,
or tampering with, evidence. This links in to the modification
of the subject information provisions of the Data Protection Act
at clause 117 of the Bill.
6 October 2003