Dear all
Using the lately published DRC post 16 DDA statutory code as an authority I
would like to clarify that
1) a confidentiality request does not override the reasonable adjustment
duty, but means that only reasonable adjustments that do not threaten
confidentiality can, and should, be made (see extract from code below);
2) the DPA takes precedence over the DDA (but see extract from the code
below).
Confidentiality and reasonable steps
6.18 A disabled person has a right to request that the existence or
nature of his or her disability be treated as confidential. [s 28T(3) and s
28T(5)] In determining whether it is reasonable to make an adjustment the
responsible body must have regard to the extent that making the adjustment
is consistent with a disabled person's request for confidentiality. [s
28T(4)]
6.19 In some instances this might mean that reasonable adjustments have
to be provided in an alternative way in order to ensure confidentiality.
Example 6.19A
A student with a visual impairment can only read clearly if
he has text enlarged into 16-point type. He is very embarrassed by his
disability and has requested strict confidentiality. Normally his tutors
would give a visually impaired student large-print handouts at the beginning
of each class. However, because he has requested confidentiality, they agree
to give him his handouts in advance so that he can look at them before the
lesson but does not have to be seen reading them during the class.
6.20 In some cases a confidentiality request might mean that a less
satisfactory reasonable adjustment is provided or that no reasonable
adjustment can be provided.
Example 6.20A
A student with AIDS is on a Chemical Engineering course. He
does not want other students to know of his condition. His condition means
that he sometimes needs to have time off. His tutors have offered to arrange
extra time in the laboratory for him after hours to make up for the time he
misses. However, he has refused this on grounds of confidentiality. Instead
they offer to provide him with extra lecture notes. Although this adjustment
is less effective, it is likely to be lawful.
General approach
10.1 Nothing in the Act takes precedence over any other legislation or
any other duties which responsible bodies or other bodies may have. In
carrying out their duties under the Act, responsible bodies must ensure that
they comply with all other legal requirements upon them. However, the
existence of other legislative provisions and responsibilities does not
provide an automatic defence in a case under Part 4 of the Disability
Discrimination Act. Responsible bodies are expected to take whatever action
is necessary to ensure that they fulfil their responsibilities both under
the Act and under any other legislation that applies to them.
The Data Protection Act 1998
10.2 The Data Protection Act 1998 restricts the processing of personal
data and 'sensitive' personal data about individuals, and particularly how
and whether that information can be passed on to others. The use of
sensitive personal data is particularly restricted. Information relating to
an individual's disability is classified as sensitive personal data. In
ensuring that disabled people and students are not discriminated against,
and that reasonable adjustments are made, responsible bodies may need to
pass data about disabled students on to members of staff and others
including work placement providers. Even if students have not requested
confidentiality under the Disability Discrimination Act, the use and
transfer of information about them (including through job references) is
restricted by the Data Protection Act. Such processing may often require
students' explicit informed consent. In order to ensure that they are not in
breach of either law, responsible bodies may need to:
* ask students' permission to pass on information necessary for making
reasonable adjustments
* alert students to the use that will be made of information when
asking them to disclose disability on application, enrolment or examination
forms
* ensure appropriate procedures are in place to keep sensitive and
other personal information confidential.
10.3 However, should a student request confidentiality under the
Disability Discrimination Act, information may not, from that point, be
passed on for the purposes of making reasonable adjustments. [s 28T(4)]
http://www.drc-gb.org/drc/Documents/post16cop2.doc is the link
Caroline Lewis
Policy Officer
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