As Ian suggests, the DPA is not the only potential restraint on
disclosure in such cases. The more substantial restriction is the
common law obligation of confidentiality, which would normally apply to
a patient's medical details. Section 35 wouldn't be relevant to that
question.
When you disclose to the patient's own lawyers, you would normally be
doing so with the patient's consent - so no question of breach of
confidence. From what you say, the disclosure seems to have been to the
other side's lawyers, and the patient hasn't consented, which does
raise the question of breach of confidence.
The question of what is necessary for the legal action is really for
the court to decide rather than for an NHS body which isn't a party to
the proceedings. Presumably this would normally be done in accordance
with the Civil Procedure Rules via a court order.
Maurice Frankel
Campaign for Freedom of Information
On 28 May 2004, at 09:07, Ian Mansbach wrote:
>> I have received a complaint from a patient that we have disclosed some
>> medical information (relating to an attendance in our A & E
>> department) to
>> the defence solicitor in a court case in which he is taking legal
>> action
>> against his former employer.
>>
>> Have we done wrong here? S35 expemption in the DP Act states that
>> personal
>> data are exempt from non-disclosure provisions where the disclosure is
>> necessary for the purpose of, or in connection with, any legal
>> proceedings
>> (ncluding prospective legal proceedings).
>>
>> It seems clear cut to me - but am I being too simplistic here -
>> perhaps we
>> should not have disclosed to "the opposition", so to speak.
>
>
> John
>
> I am NOT a a lawyer but my understanding is that a court order is not a
> prerequisite when applying the s.35(2) exemption. However, perhaps more
> importantly, exemption from the non-disclosure provisions of the DPA
> does
> not mean one is required to disclose. It just means you are not
> prohibited
> from disclosing by virtue of the non-disclosure provisions of the Act.
> One
> may have some other - very good - reason(s) for not disclosing personal
> data (or at least not without consent or a court order) such as client
> or
> patient confidentiality.
>
> Ian Mansbach
> Mansbachs
> Data Protection Practitioners
> [log in to unmask]
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>
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