I apologise if my response created that impression as it was intended to
stimulate debate rather than argument.
The two medical scenarios provided two polarised and apparently opposed
perspectives to assist in illustrating the inherent problems in providing a
policy which reflects an organisations values but not those of the disparate
communities who may use the organisations services. Choosing religiously
based examples also seemed to include potential for an element of dogmatism
within some communities upholding those views.
When considering locus parentis responsibilities education establishments
exercise, a full appreciation of the data subjects perspective and what that
may mean seems me to be of paramount importance.
Considering placing a reliance upon principle one by specifying an age to
provide some legal protections would appear to be a valid alternative answer
suitable for rigidly structured organisations existing within very stable
environments where red tape is accepted as the norm, but in organisations
located within a changing or varied environment providing a more flexible
policy stance would seem sensible.
Ian W
N.B. If incorrect would somebody correct the legal term used above.
> -----Original Message-----
> From: This list is for those interested in Data Protection
> issues [mailto:[log in to unmask]] On Behalf Of
> Simon Howarth
> Sent: 03 April 2006 15:37
> To: [log in to unmask]
> Subject: Re: Phot Image consent
>
>
> I have no great argument with what was said, the post was
> merely illustrative given a medical example, for those who
> might be interested.
>
> -----Original Message-----
> From: This list is for those interested in Data Protection
> issues [mailto:[log in to unmask]] On Behalf Of Ian Welton
> Sent: 31 March 2006 17:17
> To: [log in to unmask]
> Subject: Re: [data-protection] Phot Image consent
>
> If I understand the thrust of that guidance correctly the
> right to life is being given precedence in the decision
> making process, with all decisions and priorities being
> directed with that in mind. Effectively that single moral
> imperative appears to be driving most of the privacy
> determinants in that particular process and is clearly being
> used as justification.
>
> The wishes of any competent young person may then be
> breached/overridden as a means of assuring the moral
> obligations/feelings of the medical staff/wider community are
> catered for.
>
> If a similar philosophy were followed within other spheres
> that would mean that the individuals privacy should always be
> determined by any broader interests and there would be no
> need to consider the individual data subjects wishes,
> something which is frequently evidenced as totally incorrect.
>
>
> Ian W
>
>
> > -----Original Message-----
> > From: This list is for those interested in Data Protection issues
> > [mailto:[log in to unmask]]On Behalf Of Simon Howarth
> > (RGC) Interim Information Governance Manager
> > Sent: Friday, March 31, 2006 4:49 PM
> > To: [log in to unmask]
> > Subject: Re: Phot Image consent
> >
> >
> > Blood transfusion moves this from an educational scenario
> to a medical
> > one, and there is very little chance that a transfusion
> could be given
> > without parent/carer knowledge, it's not really the sort of
> thing one
> > get's in out-patients very often as it implies more serious issues
> > with the patient.
> >
> > This is a quote from Whipps Cross UHT's Confidentiality Code of
> > Practice in relation to informed consent. Feel free to copy....
> >
> > "Competent young people aged 16 or 17 are entitled to consent to
> > treatment and are therefore entitled to the same duty of
> > confidentiality as adults. Children under the age of 16 who
> have the
> > capacity and understanding to take decisions about their
> own treatment
> > are also entitled to make decisions about the use and disclosure of
> > information they have provided in confidence
> > (e.g. they may be receiving treatment or counselling about which
> > they do not
> > want their parents to know).
> >
> > However, where a competent young person or child is
> refusing treatment
> > for a life threatening condition, the duty of care would require
> > confidentiality to be breached to the extent of informing
> those with
> > parental responsibility
> > for the child who might then be able to provide the necessary
> > consent to the
> > treatment.
> >
> > Competence is understood in terms of the patient's ability to
> > understand the choices and their consequences, including
> the nature,
> > purpose and risks/benefits of any treatment (or non-treatment).
> >
> > Where a child is under 16, but has sufficient understanding in
> > relation to the proposed treatment to give (or withhold)
> consent, his
> > or her consent (or
> > refusal) should be respected, unless refusal of treatment
> places the
> > child at risk of suffering grave and irreversible mental or
> physical
> > harm. However, the child should be encouraged to involve parents or
> > other legal guardians.
> >
> > In other cases, consent should be sought from a person with
> parental
> > responsibility if such a person is available. It is
> important to check
> > that persons have proper authority (as parents or
> guardians). Ideally,
> > there should be notes within the child's file as to any unusual
> > arrangements."
> >
> > -----Original Message-----
> > From: Ian Welton [mailto:[log in to unmask]]
> > Sent: 31 March 2006 16:35
> > To: [log in to unmask]
> > Subject: Re: [data-protection] Phot Image consent
> >
> >
> > The example provided illustrates the difficulties in the
> educational
> > sphere.
> >
> > Consider an imaginary scenario involving a child
> acknowledged as very
> > mature for their age (13yrs) whose religious base is one
> containing a
> > refusal to allow blood transfusions.
> >
> > The child is in need of urgent medical care which is only
> treatable by
> > blood transfusion, without which they will die. The situation is
> > explained to the
> > child who details the religious beliefs of their community but
> > requests that
> > blood be given to allow them to live on the condition that
> no mention of
> > this is made to anybody.
> >
> > Ignoring the moral perspectives and potential difficulties
> emanating
> > from both of the described situations the importance of the childs
> > ability to access their own information, but deny that access to
> > others becomes paramount. In both situations the nature of privacy
> > and its protection becomes a very important issue to the
> individuals
> > concerned and highlights the need for considerable care to
> be taken by
> > DPO's when determining what appropriate response to make
> when dealing
> > with a SAR involving a child. (i.e. (a) die or be alienated
> from your
> > community. (b) Never confide in a teacher/trust a school or have
> > sufficient trust to ask for advice/confide). Both of the described
> > situations appear to rely upon the data subjects wishes taking
> > precedence over all others.
> >
> > Ian W
> >
> > N.B. Have just read Donalds contribution. Food for thought in the
> > blood transfusion scenario.
> >
> > > -----Original Message-----
> > > From: This list is for those interested in Data Protection issues
> > > [mailto:[log in to unmask]] On Behalf Of Tim Trent
> > > Sent: 31 March 2006 15:59
> > > To: [log in to unmask]
> > > Subject: Re: Phot Image consent
> > >
> > >
> > > Digressing from the topic of photos a little, the concept
> of being
> > > sufficiently competent to decide what happens about data
> concerning
> > > a child flows both ways.
> > >
> > > Consider a mature young teenager in the awkward period between 13
> > > and 16, where they are increasingly intellectually
> mature, and yet
> > > considered for many things to be a child. That teenager
> confides in
> > > a teacher a matter that is lawful, of great personal
> importance to
> > > them and that they wish always to be kept secret from
> parent, carer,
> > > guardian etc. It is a matter of sufficient important for
> the teacher
> > > to note carefully and formally in the child's record, is
> > > sensitive data and is correctly safeguarded. The Durant
> > > precedent is not relevant because of the manner in which the
> > > data is held, and a SAR from the child would be expected to
> > > reveal this information to the child.
> > >
> > > The parent, suspecting something of this, issues a SAR
> against the
> > > school requiring disclosure of all data held on the child. The
> > > parents motives are irrelevant. They may be wholesome and
> > > protective of their child, they may be abusive, but that is not
> > > relevant.
> > >
> > > I can see a large argument ensuing whatever the school does:
> > >
> > > A) Fulfils the SAR without reference to the child:
> Against child's
> > > express wishes
> > > B) Consults child about SAR: Child has blazing row with parents
> > > because child feels spied upon
> > > C) Partially fulfils SAR omitting reference to the confidential
> > > item: Suspicious parent raises hell
> > > D) Refuses to fulfil the SAR because the parent is not
> entitled to
> > > any information of this class about the child: Parent raises hell
> > >
> > > etc
> > >
> > > -----Original Message-----
> > > From: This list is for those interested in Data Protection issues
> > > [mailto:[log in to unmask]] On Behalf Of Ian Welton
> > > Sent: 31 March 2006 15:45
> > > To: [log in to unmask]
> > > Subject: Re: [data-protection] Phot Image consent
> > >
> > > As you say given the various activities children may be involved
> > > with at school the difficulties are numerous.
> > >
> > > The point you make though seems to me to present the main
> subject at
> > > issue from a slightly different perspective. i.e. At what
> point and
> > > in what way does a child become sufficiently mature to
> deal with all
> > > the information necessary to properly inform them in any
> particular
> > > decision they may make about their own privacy.
> > >
> > > Acknowledging that decisions on disclosure to a child would be
> > > dependent upon the issues in question as well as perhaps more
> > > influentially how others who hold relevant information
> are able cope
> > > with or explain it a further matter of who should make disclosure
> > > decisions when a child has reached the necessary level of
> maturity
> > > arises, and how should those people be kept informed of opinions
> > > about levels of maturity.
> > >
> > > Given that education systems themselves are ostensibly
> designed to
> > > inform children at appropriate levels of maturity about
> information
> > > which is thought pertinent to them the issue could
> perhaps be viewed
> > > from some perspectives and in some circumstances as less
> than clear
> > > but it is one which the DPA requires to be taken when
> dealing with a
> > > childs data
> > >
> > > Ian W
> > >
> > > > -----Original Message-----
> > > > From: This list is for those interested in Data
> Protection issues
> > > > [mailto:[log in to unmask]]On Behalf Of Tim Trent
> > > > Sent: Friday, March 31, 2006 1:14 PM
> > > > To: [log in to unmask]
> > > > Subject: Re: Phot Image consent
> > > >
> > > >
> > > > There is one extra and important element here. That of
> abusive ex
> > > > carers who may be restrained from contact with a child.
> > > >
> > > > I can cite an example where my wife teaches of a child
> > > whose pictures
> > > > may not ever appear in any form in a way to make the child
> > > traceable
> > > > by her absent abusive ex carer. The child's school surname is
> > > > unrelated to the "real" surname. The child may not even be
> > > aware of
> > > > this, but the parent has given a blanket refusal, supported
> > > by court
> > > > papers, to seek to ensure that the child's picture never
> > > appears, for
> > > > the child is in real danger.
> > > >
> > > > If that child overrode the parental prohibition because he
> > > or she was
> > > > unaware of the possible consequences, and the school were
> > > not properly
> > > > aware of the issues (which happens because staff change and
> > > things do
> > > > get misplaced, or buried in files beneath a welter of
> papers) then
> > > > major problems would arise.
> > > >
> > > > Those whose role involves the safekeeping of children
> have a very
> > > > challenging tightrope to walk ensuring that the child's
> > > rights and the
> > > > child's safety are correctly balanced with the child's need to
> > > > know about potential danger.
> > > >
> > > > -----Original Message-----
> > > > From: This list is for those interested in Data
> Protection issues
> > > > [mailto:[log in to unmask]] On Behalf Of
> Lee Gardiner
> > > > Sent: 31 March 2006 11:38
> > > > To: [log in to unmask]
> > > > Subject: Re: [data-protection] Phot Image consent
> > > >
> > > > I certainly don't see a major conflict in the two pieces of
> > > > advice. The Teachernet advice only says that 12 year olds are
> > > presumed to be
> > > > able to exercise their own rights but it doesn't say
> that parents
> > > > can't be consulted or that consent can't be obtained
> from them. In
> > > > fact the Teachernet advice encourages schools to
> include parents
> > > > in the process if children are over twelve.
> > > >
> > > > Just because a child is 12 years old doesn't mean they have
> > > sufficient
> > > > maturity, its only a presumption and isn't a hard and
> fast rule.
> > > > The fact is some 12 year olds are more than mature
> enough to make
> > > > an informed decision while other older children quite clearly
> > > > aren't so the school/LEA must make a judgement based on the
> > > > individual cases or, more reasonably given the numbers
> of children
> > > > starting at
> > > new schools
> > > > every year, have a policy to notify the parents and
> obtain their
> > > > consent for processing. There is nothing to stop the school
> > > involving
> > > > the children in this process.
> > > >
> > > > Regardless of this I hardly think the ICO is going to
> have major
> > > > issues with a school which errs on the side of caution and
> > > follows the
> > > > 'actnow' advice and obtains consent from the parents of a
> > > 12 year old
> > > > rather than the child themselves.
> > > >
> > > > A general rule of thumb test I employed at the ICO and that was
> > > > said to data controllers asking for any advice was 'what would
> > > you expect
> > > > to be done if it was your data being processed?' or in this
> > > case if it
> > > > was 'your son/daughter's data being processed?' I think in the
> > > > vast majority of cases people, as parents, would expect to be
> > > consulted and
> > > > if in doubt for schools/LEAs to err on the side of caution.
> > > Better to
> > > > get it 'wrong' by being too rigid than get it wrong by
> > > being too lax.
> > > >
> > > > As Tim has just said though consent lasting for 5 years is
> > > > probably pushing it but as to whether it should be obtained
> > > > annually
> > > or maybe
> > > > bi-annually is a different matter My view is annual
> but obviously
> > > > others may disagree.
> > > >
> > > > The only remaining consideration is of course once a
> child reaches
> > > > their mid-teens they may be inclined to withdraw their
> consent for
> > > > certain non-essential processing (photographs etc) and
> > > > schools/LEAs should have mechanisms in place to allow for that.
> > > >
> > > > Lee Gardiner
> > > > Records Manager
> > > > x4140 or 01942 404140
> > > > [log in to unmask]
>
> > -----Original Message-----
> > From: This list is for those interested in Data Protection issues
> > [mailto:[log in to unmask]]On Behalf Of Simon Howarth
> > (RGC) Interim Information Governance Manager
> > Sent: Friday, March 31, 2006 4:49 PM
> > To: [log in to unmask]
> > Subject: Re: Phot Image consent
> >
> >
> > Blood transfusion moves this from an educational scenario
> to a medical
> > one, and there is very little chance that a transfusion
> could be given
> > without parent/carer knowledge, it's not really the sort of
> thing one
> > get's in out-patients very often as it implies more serious issues
> > with the patient.
> >
> > This is a quote from Whipps Cross UHT's Confidentiality Code of
> > Practice in relation to informed consent. Feel free to copy....
> >
> > "Competent young people aged 16 or 17 are entitled to consent to
> > treatment and are therefore entitled to the same duty of
> > confidentiality as adults. Children under the age of 16 who
> have the
> > capacity and understanding to take decisions about their
> own treatment
> > are also entitled to make decisions about the use and disclosure of
> > information they have provided in confidence
> > (e.g. they may be receiving treatment or counselling about which
> > they do not
> > want their parents to know).
> >
> > However, where a competent young person or child is
> refusing treatment
> > for a life threatening condition, the duty of care would require
> > confidentiality to be breached to the extent of informing
> those with
> > parental responsibility
> > for the child who might then be able to provide the necessary
> > consent to the
> > treatment.
> >
> > Competence is understood in terms of the patient's ability to
> > understand the choices and their consequences, including
> the nature,
> > purpose and risks/benefits of any treatment (or non-treatment).
> >
> > Where a child is under 16, but has sufficient understanding in
> > relation to the proposed treatment to give (or withhold)
> consent, his
> > or her consent (or
> > refusal) should be respected, unless refusal of treatment
> places the
> > child at risk of suffering grave and irreversible mental or
> physical
> > harm. However, the child should be encouraged to involve parents or
> > other legal guardians.
> >
> > In other cases, consent should be sought from a person with
> parental
> > responsibility if such a person is available. It is
> important to check
> > that persons have proper authority (as parents or
> guardians). Ideally,
> > there should be notes within the child's file as to any unusual
> > arrangements."
> >
> > -----Original Message-----
> > From: Ian Welton [mailto:[log in to unmask]]
> > Sent: 31 March 2006 16:35
> > To: [log in to unmask]
> > Subject: Re: [data-protection] Phot Image consent
> >
> >
> > The example provided illustrates the difficulties in the
> educational
> > sphere.
> >
> > Consider an imaginary scenario involving a child
> acknowledged as very
> > mature for their age (13yrs) whose religious base is one
> containing a
> > refusal to allow blood transfusions.
> >
> > The child is in need of urgent medical care which is only
> treatable by
> > blood transfusion, without which they will die. The situation is
> > explained to the
> > child who details the religious beliefs of their community but
> > requests that
> > blood be given to allow them to live on the condition that
> no mention of
> > this is made to anybody.
> >
> > Ignoring the moral perspectives and potential difficulties
> emanating
> > from both of the described situations the importance of the childs
> > ability to access their own information, but deny that access to
> > others becomes paramount. In both situations the nature of privacy
> > and its protection becomes a very important issue to the
> individuals
> > concerned and highlights the need for considerable care to
> be taken by
> > DPO's when determining what appropriate response to make
> when dealing
> > with a SAR involving a child. (i.e. (a) die or be alienated
> from your
> > community. (b) Never confide in a teacher/trust a school or have
> > sufficient trust to ask for advice/confide). Both of the described
> > situations appear to rely upon the data subjects wishes taking
> > precedence over all others.
> >
> > Ian W
> >
> > N.B. Have just read Donalds contribution. Food for thought in the
> > blood transfusion scenario.
> >
> > > -----Original Message-----
> > > From: This list is for those interested in Data Protection issues
> > > [mailto:[log in to unmask]] On Behalf Of Tim Trent
> > > Sent: 31 March 2006 15:59
> > > To: [log in to unmask]
> > > Subject: Re: Phot Image consent
> > >
> > >
> > > Digressing from the topic of photos a little, the concept
> of being
> > > sufficiently competent to decide what happens about data
> concerning
> > > a child flows both ways.
> > >
> > > Consider a mature young teenager in the awkward period between 13
> > > and 16, where they are increasingly intellectually
> mature, and yet
> > > considered for many things to be a child. That teenager
> confides in
> > > a teacher a matter that is lawful, of great personal
> importance to
> > > them and that they wish always to be kept secret from
> parent, carer,
> > > guardian etc. It is a matter of sufficient important for
> the teacher
> > > to note carefully and formally in the child's record, is
> > > sensitive data and is correctly safeguarded. The Durant
> > > precedent is not relevant because of the manner in which the
> > > data is held, and a SAR from the child would be expected to
> > > reveal this information to the child.
> > >
> > > The parent, suspecting something of this, issues a SAR
> against the
> > > school requiring disclosure of all data held on the child. The
> > > parents motives are irrelevant. They may be wholesome and
> > > protective of their child, they may be abusive, but that is not
> > > relevant.
> > >
> > > I can see a large argument ensuing whatever the school does:
> > >
> > > A) Fulfils the SAR without reference to the child:
> Against child's
> > > express wishes
> > > B) Consults child about SAR: Child has blazing row with parents
> > > because child feels spied upon
> > > C) Partially fulfils SAR omitting reference to the confidential
> > > item: Suspicious parent raises hell
> > > D) Refuses to fulfil the SAR because the parent is not
> entitled to
> > > any information of this class about the child: Parent raises hell
> > >
> > > etc
> > >
> > > -----Original Message-----
> > > From: This list is for those interested in Data Protection issues
> > > [mailto:[log in to unmask]] On Behalf Of Ian Welton
> > > Sent: 31 March 2006 15:45
> > > To: [log in to unmask]
> > > Subject: Re: [data-protection] Phot Image consent
> > >
> > > As you say given the various activities children may be involved
> > > with at school the difficulties are numerous.
> > >
> > > The point you make though seems to me to present the main
> subject at
> > > issue from a slightly different perspective. i.e. At what
> point and
> > > in what way does a child become sufficiently mature to
> deal with all
> > > the information necessary to properly inform them in any
> particular
> > > decision they may make about their own privacy.
> > >
> > > Acknowledging that decisions on disclosure to a child would be
> > > dependent upon the issues in question as well as perhaps more
> > > influentially how others who hold relevant information
> are able cope
> > > with or explain it a further matter of who should make disclosure
> > > decisions when a child has reached the necessary level of
> maturity
> > > arises, and how should those people be kept informed of opinions
> > > about levels of maturity.
> > >
> > > Given that education systems themselves are ostensibly
> designed to
> > > inform children at appropriate levels of maturity about
> information
> > > which is thought pertinent to them the issue could
> perhaps be viewed
> > > from some perspectives and in some circumstances as less
> than clear
> > > but it is one which the DPA requires to be taken when
> dealing with a
> > > childs data
> > >
> > > Ian W
> > >
> > > > -----Original Message-----
> > > > From: This list is for those interested in Data
> Protection issues
> > > > [mailto:[log in to unmask]]On Behalf Of Tim Trent
> > > > Sent: Friday, March 31, 2006 1:14 PM
> > > > To: [log in to unmask]
> > > > Subject: Re: Phot Image consent
> > > >
> > > >
> > > > There is one extra and important element here. That of
> abusive ex
> > > > carers who may be restrained from contact with a child.
> > > >
> > > > I can cite an example where my wife teaches of a child
> > > whose pictures
> > > > may not ever appear in any form in a way to make the child
> > > traceable
> > > > by her absent abusive ex carer. The child's school surname is
> > > > unrelated to the "real" surname. The child may not even be
> > > aware of
> > > > this, but the parent has given a blanket refusal, supported
> > > by court
> > > > papers, to seek to ensure that the child's picture never
> > > appears, for
> > > > the child is in real danger.
> > > >
> > > > If that child overrode the parental prohibition because he
> > > or she was
> > > > unaware of the possible consequences, and the school were
> > > not properly
> > > > aware of the issues (which happens because staff change and
> > > things do
> > > > get misplaced, or buried in files beneath a welter of
> papers) then
> > > > major problems would arise.
> > > >
> > > > Those whose role involves the safekeeping of children
> have a very
> > > > challenging tightrope to walk ensuring that the child's
> > > rights and the
> > > > child's safety are correctly balanced with the child's need to
> > > > know about potential danger.
> > > >
> > > > -----Original Message-----
> > > > From: This list is for those interested in Data
> Protection issues
> > > > [mailto:[log in to unmask]] On Behalf Of
> Lee Gardiner
> > > > Sent: 31 March 2006 11:38
> > > > To: [log in to unmask]
> > > > Subject: Re: [data-protection] Phot Image consent
> > > >
> > > > I certainly don't see a major conflict in the two pieces of
> > > > advice. The Teachernet advice only says that 12 year olds are
> > > presumed to be
> > > > able to exercise their own rights but it doesn't say
> that parents
> > > > can't be consulted or that consent can't be obtained
> from them. In
> > > > fact the Teachernet advice encourages schools to
> include parents
> > > > in the process if children are over twelve.
> > > >
> > > > Just because a child is 12 years old doesn't mean they have
> > > sufficient
> > > > maturity, its only a presumption and isn't a hard and
> fast rule.
> > > > The fact is some 12 year olds are more than mature
> enough to make
> > > > an informed decision while other older children quite clearly
> > > > aren't so the school/LEA must make a judgement based on the
> > > > individual cases or, more reasonably given the numbers
> of children
> > > > starting at
> > > new schools
> > > > every year, have a policy to notify the parents and
> obtain their
> > > > consent for processing. There is nothing to stop the school
> > > involving
> > > > the children in this process.
> > > >
> > > > Regardless of this I hardly think the ICO is going to
> have major
> > > > issues with a school which errs on the side of caution and
> > > follows the
> > > > 'actnow' advice and obtains consent from the parents of a
> > > 12 year old
> > > > rather than the child themselves.
> > > >
> > > > A general rule of thumb test I employed at the ICO and that was
> > > > said to data controllers asking for any advice was 'what would
> > > you expect
> > > > to be done if it was your data being processed?' or in this
> > > case if it
> > > > was 'your son/daughter's data being processed?' I think in the
> > > > vast majority of cases people, as parents, would expect to be
> > > consulted and
> > > > if in doubt for schools/LEAs to err on the side of caution.
> > > Better to
> > > > get it 'wrong' by being too rigid than get it wrong by
> > > being too lax.
> > > >
> > > > As Tim has just said though consent lasting for 5 years is
> > > > probably pushing it but as to whether it should be obtained
> > > > annually
> > > or maybe
> > > > bi-annually is a different matter My view is annual
> but obviously
> > > > others may disagree.
> > > >
> > > > The only remaining consideration is of course once a
> child reaches
> > > > their mid-teens they may be inclined to withdraw their
> consent for
> > > > certain non-essential processing (photographs etc) and
> > > > schools/LEAs should have mechanisms in place to allow for that.
> > > >
> > > > Lee Gardiner
> > > > Records Manager
> > > > x4140 or 01942 404140
> > > > [log in to unmask]
> > --
--
No virus found in this outgoing message.
Checked by AVG Free Edition.
Version: 7.1.385 / Virus Database: 268.3.4/299 - Release Date: 3/31/06
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