I am just going through a similar process and sought advice from the RCN as well as what advice was given to me by the Trust's ;lawyers re the Data protection Act..



The legal position is that the non-disclosure component of the DPA is not active for legal proceedings or even the preparation for legal proceedings so if you or the organisation or the defendant needs documents to defend themselves in a court of law disclosure is required. 



The caveats are that as an RGN we should attempt to get consent where possible or under the spirit of things at least inform the employee if the notes are needed urgently.



FROM RCN

"Records containing personal information are protected against disclosure unless there is consent or some other overriding legal reason justifying disclosure. Therefore, you must always in the first instance try to obtain explicit consent of a patient/client before you disclose confidential information. You must make sure that the patient/client can make an informed response as to whether that information can be disclosed. The Faculty of Occupational Medicine (FOM) Guidance on Ethics for Occupational Physicians (Faculty of Occupational Medicine 1999) document identifies seven situations where confidential information may be disclosed. They broadly compare with those described in the GMC guidance Confidentiality, protecting and providing information, published in  September 2000, and the NMC Code of Professional Conduct. The seven situations are:

1 with the consent of the client

2 if disclosure is clearly in the patient’s interest but it is not possible or is undesirable to seek consent

3 if it is required by law

4 if it is unequivocally in the public interest

5 if it is necessary to safeguard national security or to prevent a serious crime

6 if it will prevent a serious risk to public health

7 in certain circumstances for the purposes of medical research."



From DPA:

Please find below the relevant section of the Data Protection Act 1998.  It is 35 (2) that applies here and illustrates the principle that the ability to receive legal advice is considered fundamental and therefore disclosure of personal data are permitted for these purposes.  

"35 Disclosures required by law or made in connection with legal proceedings etc 

(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court. 

(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary— 

(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or 

(b) for the purpose of obtaining legal advice, 

or is otherwise necessary for the purposes of establishing, exercising or defending legal rights."





Therefore the conclusion could be that the disclosure must be in proportion to the need i.e. not excessive so notes irrelevant to the proceedings must NOT be released and that you are compelled to release the named documents to the person on both teams, the organisation and the defendants as both parties must have the same documents.



Hope that helps.



I had to insist our lawyers pursue written consent from the employee or a court order as they wanted me to disclose just on a verbal order from an ET. And that is despite agreeing I have every legal right to use her file to defend myself in preparing my statement for the ET.



Regards

Sue



Susan Gorton | OH Nurse Manager | Occupational Health Department | Great Ormond Street Hospital NHS Foundation Trust | Level 3, Ormond House, 26-27 Boswell St., London WC1N 3JZ |020 7405 9200 Ext 0247 | DD to OHD 020 78138554 | Direct Fax 020 78138355 | Mobile 07833294568

Please be advised that all e-mail communication relevant to assisting in the management of the OH process will be printed and entered into the individual's OH file or copied and added as an electronic note on their electronic OH record. This may therefore be disclosed under the Data Protection Act (1998).









-----Original Message-----

From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Jeremy RF Smith

Sent: 18 November 2012 01:51

To: [log in to unmask]

Subject: Re: [OCC-HEALTH] Release of OH notes



Hey Tracy,



I agree with Lindsey.  As the custodian of the records you are duty bound to release all that you hold to the court as long as your have received a correctly issued court order. If in doubt phone the court to clarify what they are asking for.  You should not release the records to HR or the company's legal team without the client's written consent. Call me if you need to talk it through.



Rgds,



Jeremy



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