Sonya de la Loi, the respected academic lawyer from Trondleheim University
in the Artic Circle, runs an "data pretection agony aunt column". She
printed the following response to a letter (relevant to the above topic) in
Data Protection and Privacy Practice (No. 1).
Chris
<something> are control instrcutions to the document layout system we use
<heading>Counselling with care
<box>Dear Sonya
<box>Our Counselling Service (in a higher educational establishment) will
sometimes complete and hold the following client data: (a) an assessment
which describes the problems and makes recommendations for the future care
of the client and (b) a process record which may include client information
but is more about the way the service is trying to work with the client or
may reflect how the counsellor has been affected by the work with the
client.
<box>What advice would you give?
<box>Yours sincerely,
<box>Ms. S
<body>Dear Ms. S
<body>I suggest you install model procedures based on the practices used by
the NHS and Social Work Departments. The basic rules are:
<bull> fully informed consent of the student to the processing (e.g. no
disclosure without consent). There is a very good booklet in the "Duties of
a doctor" series entitled "Confidentiality". It can be obtained from the
General Medical Council (in London) and deals with advice on how GPs are to
cope with subjects such as disclosure within teams, to employers, to
insurance companies, to parents and use of data for research and
administrative purposes. If you get this booklet, you will be able to start
using procedures which will always have the in-built defence "we only do
what the doctors do, and follow their best practice". Note that consent, if
fully informed, will legitimise the processing as required by the First
Principle and Schedules 2 and 3 of the 1998 Act. If information needs to be
transferred to other professionals, this should be with consent; however in
some cases there might be a rare case for disclosure without consent (e.g.
if it was in the vital interests of the student or another individual to
make the disclosure)
<bull> proper recording practices of counselling sessions (e.g. when
session held, who was there, key decisions reached (if any); reasons for
decision, summary of advice given; actions agreed at the session; date of
next session; any other important detail such as "what to do if this does
not work")
<bull> open access by the student to all records which relate to their
care, including all comments made by carers (but the exemptions in S.30 of
the Act might be applied if your councillors are health professionals or
qualified social workers)
<bull> a deletion policy with respect to care records (e.g. you will need
to justify why you retain care records which relate to ex-students). If such
records are important to the care of the student after that person has left
the institution, these records can be forwarded to the proper authorities
with consent of the student
<bull> security considerations with respect to the protection of
personal data, and their disposal.
<body>Yours sincerely
<body>Sonya
----------
> From: [log in to unmask]
> To: [log in to unmask]
> Subject: CoP - Employee and student counselling
> Date: 05 June 2000 19:51
>
> <<File Attachment: ENVELOPE.TXT>>
> Request for comments
>
> *Key* <T> = title <ST> = Subtitle <R> = Recommendation
>
> <T>CounsellingServices
>
> Most HE and FE institutions provide Counselling Services for employees
> and students. Such Counselling Services will, in the course of their
> ordinary operations, be legitimately collecting and processing personal
> data, including sensitive personal data (See The Data Protection
> (Processing of Sensitive Personal Data) Order 2000, s.4).
>
> <R> HE and FE Employee and Student Counselling Services should:
>
> - provide clients with:
>
> -- guidance to the service_s personal data policies on data collection
> and retention
>
> -- guidance on access to counsellors_ notes and other records that refer
> to them
>
> -- a timescale for destruction of the client_s personal data.
>
> - make acceptance by the client, of the service_s record-keeping
> practices, part of the contract with the service.
>
> - permit counsellors to discuss a client_s records with that
> client, whilst ensuring that, in such discussions, references to
> third parties are withheld.
> - ensure total confidentiality of client personal data, subject
> only to the following exceptions:
>
> -- where the counsellor has the express consent of the client to
> disclose the data.
>
> -- where the counsellor believes that serious harm may befall a third
> party if the data were not disclosed.
>
> -- where the counsellor would be liable to civil or criminal court
> procedure if the data were not disclosed.
>
> - ensure all records are kept securely and remain confidential within
> the service.
>
> - provide for the secure disposal of personal data that is no longer
> required
>
> <R> HE and FE Employee and Student Counselling Services may keep "risk
> registers" (e.g. lists of individuals who may be violent so that
> counsellors can check before they arrange one-to-one meetings). Access
> by counsellors to such "risk registers" should be available only on a
> _need to know_ basis. Inclusion on a "risk register" may not be
> disclosable to a data subject under subject access on the grounds that
> the health & safety of counsellors may be at stake (s31(2)(e)).
>
> <R> HE and FE Employee and Student Counselling Services should ensure
> that where counsellors discuss casework with supervisors:
>
> - such discussion should be in general rather than specific terms,
> so that personal circumstances may be revealed, but not the identity
> of the client; or
> - the client should be informed in advance that the that counsellor
> may discuss their case with a supervisor should they feel it necessary.
>
> <R>HE and FE Employee and Student Counselling Services should ensure
> counselling members of staff are bound by a Code of Ethics and Practice
> (e.g. the British Association for Counselling (BAC) Code of Ethics).
>
>
>
> Andrew Charlesworth
> Senior Lecturer in IT law
> Director, Information Law and Technology Unit
> University of Hull Law School
> Hull, UK, HU6 7RX
> Voice: 01482 466387 Fax: 01482 466388
> E-mail: [log in to unmask]
>
>
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