Sorry, this was meant to be a comment about the cross-examination of the HIV
positive witness. I attached it to the wrong email.
RP
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of DPCS Associates
Sent: 30 May 2004 23:26
To: [log in to unmask]
Subject: Re: Disclosure to defence solicitor
Have I completely lost the plot? Is this really a data protection issue?
Please help.
Caution, I have lacked group support on similar issues in the past,
however, it would be great to hear the views of members who may or not agree
with my comments.
Freddie
----- Original Message -----
From: "Rosemary Pattenden" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Sunday, May 30, 2004 10:28 AM
Subject: Re: Disclosure to defence solicitor
In Z v Finland (1998) 25 EHRR 371 the European Court of Human rights would
not have upheld a court order that compelled the applicant's doctor to give
evidence of her HIV status in criminal proceedings against her husband had
the questioning taken place in open court:
"The interference with the applicant's private and family life which the
contested orders entailed was thus subject to important limitations and was
accompanied by effective and adequate safeguards against abuse" para 103
In the light of this, I think that cross-examination of a witness about HIV
status without first seeking to have the court closed to the public and a
fortiori establishing that the witness actually knows that s/he is HIV
positive, is an unjustifiable breach of article 8. Counsel should not have
sought to put the questions in the circumstance that he did and as soon as
the question was put to the witness, the judge should have stopped counsel
and had a discussion about the questioning with counsel.
Rosemary Pattenden
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of ianwelton
Sent: 29 May 2004 20:00
To: [log in to unmask]
Subject: Re: Disclosure to defence solicitor
Maurice Frankel on 28 May 2004 at 17:53 said:-
> 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.
A strange situation when an older frame of law (common law) which works by
exclusion (you can do whatever is not forbidden) should provide more
substantial restrictions protecting individual privacy where new laws
(HRA/DPA) ostensibly regulating by inclusion (do not intrude into these
areas without good and specific cause) do not. That would seem to indicate
the DPA fails at the first hurdle in meeting the Directive requirements
where medical records are concerned. :- "1. In accordance with this
Directive, Member States shall protect the fundamental rights and freedoms
of natural persons, and in particular their right to privacy with respect to
the processing of personal data."
Reverting to the earlier post by DREW Nic on 25 May 2004 at 14:12 if the
common law confidentiality issues and legal procedure rules were the only
protections for the individual when the witness was informed they had HIV in
a witness box, then clearly such procedures and rules are inadequate, unless
of course the solicitors/lawyers did not take notice of them or were able to
claim exemptions for some reason.
> 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.
Does the court no make a determination on relevancy to a case when the
material is presented to the court, after the solicitors/lawyers have
collected it and themselves determined if it meets the necessary rules?
Ian W
> -----Original Message-----
> From: This list is for those interested in Data Protection
> issues [mailto:[log in to unmask]] On Behalf Of
> Maurice Frankel
> Sent: 28 May 2004 17:53
> To: [log in to unmask]
> Subject: Re: Disclosure to defence solicitor
>
>
> 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]
> > phone: 0871 716 5060
> > international: +44 (871) 716 5060
> >
> > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> > All archives of messages are stored permanently and are
> > available to the world wide web community at large at
> > http://www.jiscmail.ac.uk/lists/data-protection.html
> > If you wish to leave this list please send the command
> > leave data-protection to [log in to unmask]
> > All user commands can be found at : -
> > http://www.jiscmail.ac.uk/help/commandref.htm
> > (all commands go to [log in to unmask] not the list please)
> > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> >
>
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
> All archives of messages are stored permanently and are
> available to the world wide web community at large at
> http://www.jiscmail.ac.uk/lists/data-protection.html
> If you wish to leave this list please send the command
> leave data-protection to [log in to unmask]
> All user commands can be found at : -
> http://www.jiscmail.ac.uk/help/commandref.htm
> (all commands go to [log in to unmask] not the list please)
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
>
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at : -
http://www.jiscmail.ac.uk/help/commandref.htm
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|