The laboratory will, in general, test any sample presented to it. It acts
under instructions and could well be considered to be a Data Processor in
this event if one tried very hard. The sample was, after all, sensitive
data, and the individual was identified.
When testing samples for sexually transmitted diseases a path lab is used to
handling anonymous samples where written consent is not provided in any
normally attributable form. This anonymity is safeguarded by the Acts of
Parliament surrounding what used to be called "Special Clinics" and are now
more usually called Genito Urinary Medicine or Sexual Health Clinics where
the individual being tested and treated is guaranteed total anonymity.
This does not excuse the laboratory in this instance from what I perceive as
its duty of care towards its client to tell the client that such analysis
might be unlawful, nor does it excuse the cavalier way this sample was
managed, nor the exposure of data in court in this manner.
This exposure has done incalculable harm to the individual concerned with
surmise and supposition about the mechanism of infection, let alone the
profound shock and emotional beating that he has taken with such a
revelation. While there is no easy way to tell a person that they are HIV
positive, the GUM clinics ensure that this is done in person, in a peaceful
environment by a person trained in dealing with huge emotional stress, and
in giving immediate help with routes forward.
No consolation for the victim in the witness box that such evidence,
gathered unlawfully, is inadmissible.
If we extend this, for a moment, into less controversial areas, this shows
one of the many reasons why formal contracts must be in place for the
processing of data between data controllers and data processors in order to
limit the harm done to either by the other in the event of something stupid
like this taking place.
Tim Trent - Consultant
Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
email: [log in to unmask]
Marketing Improvement Limited, Abbey House, Grenville Place, Bracknell,
United Kingdom, RG12 1BP
http://www.marketingimprovement.com
This message is for the intended addressee's use only. It may contain
confidential, proprietary or legally privileged information. No
confidentiality or privilege is waived or lost by any mis-transmission. If
you receive this message in error, please immediately delete it and all
copies of it from your system, destroy any hard copies of it and notify the
sender. You must not, directly or indirectly, use, disclose, distribute,
print, or copy any part of this message if you are not the intended
recipient. Any views expressed in this message are those of the individual
sender, except where the message states otherwise and the sender is
authorised to state them to be the views of any such entity.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of [log in to unmask]
Sent: Wednesday, May 26, 2004 8:24 AM
To: [log in to unmask]
Subject: Re: [data-protection] Inquiry into HIV court blunder
I cannot understand why the sensitive personal data has been exchanged - in
this particular case - without the explicit consent of the data subject.
Why would the lab undertake an HIV test without the individual's written
consent and why would they disclose the results without that consent?
The defence solicitor should be struck off - abuse of position - and the lab
should be prosecuted.
But they won't. Maybe they should both be sued by the data subject, if this
isn't unwarranted substantial harm and distress I don't know what is.
Ian B
Ian Buckland
Managing Director
Keep IT Legal Ltd
Please Note: The information given above does not replace or negate the need
for proper legal advice and/or representation. It is essential that you do
not rely upon any advice given without contacting your solicitor. If you
need further explanation of any points raised please contact Keep I.T. Legal
Ltd at the address below:
55 Curbar Curve
Inkersall, Chesterfield
Derbyshire S43 3HP
(Reg 3822335)
Tel: 01246 473999
Fax: 01246 470742
E-mail: [log in to unmask]
Website: www.keepitlegal.co.uk
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
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)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
