An observation.
The draft uses terms which can be interpreted to include all processing
chosen to be undertaken for those purposes potentially ignoring specific
data items which may cause some concern in some circumstances and seems to
outline organisational policy.
It could be possible therefore to argue that all data the Trust may choose
to process, irrespective of any other issue, is being processed within the
terms of the policy. Any subsequent challenge must therefore be against the
supporting policy itself rather than any individual data item which may be
causing substantial damage or distress. If that is the way the Trust
functions, and staff accept that there may be no problems unless a member of
staff comes to very serious harm as a result of a data holding.
Providing a link to any staff dispute procedure for any specific data
problems staff may encounter could help.
Ian W
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Anne Gadsden
Sent: 03 May 2006 09:14
To: [log in to unmask]
Subject: Re: NHS Electronic Staff Record - Opting out?
Thanks to all of you who guided me on this one - the draft response to
our staff is currently:
Request to cease processing
You have said in your letter that "staff have the right under the act
to ask that you cease or do not begin processing data" under the Data
protection Act 1998 - Section 10, Subsection (1) (see appendix), if they
feel that processing their information in this way "is causing or is
likely to cause substantial damage or substantial distress" However,
the legal position is that any distress must be real anguish rather than
simple annoyance, and the Trust does not believe that any substantial
damage or distress will be caused to any member of staff by the
introduction of the Electronic Staff Record.
Before anyone considers asking the Trust to cease processing their
information, the consequences of doing so need to be clear. The
Electronic Staff Record will be the only payroll and Human Resources
system that will be used by the Trust and will incorporate the statutory
requirements that the Trust as an employer is legally bound undertake
and to report on. The Trust will be unable to undertake those functions
(e.g. payment of wages) for any individual who asks the Trust to stop
processing their information, an option the Trust is not prepared to
allow. Individuals who do not accept this can exercise their right to
contact the Office of the Information Commissioner
Section 10. Subsection (2) of the Data Protection Act 1998 (see
appendix) makes clear that subsection (1) does not apply "in a case
where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met"
i.e. "Schedule 2, Paragraph (3) The processing is necessary for
compliance with any legal obligation to which the data controller is
subject, other than an obligation imposed by contract." The Trust is
already undertaking essential processing in order to manage its staff,
and is fulfilling its statutory obligations under the terms of Schedule
2 of the Data Protection Act. This will still be the case after the
introduction of the Electronic Staff Record.
Personally, I was happy to see staff showing an interest in their
information, and I consider it a success for our annual DPA talks that
they raised this issue. In light of the fact that similar problems are
being experienced with the proposed Electronic Health Records, I don't
think this will be the end of the story.
Thanks again
Anne
Anne Gadsden AHRIM
Information Governance Officer
Information Services Department
North Cumbria Acute Hospitals NHS Trust
Cumberland Infirmary
Carlisle CA2 7HY
01228 814539 (direct line)
e-mail: [log in to unmask]
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