What happens if a carer or another person gives the information "under the
DDA" but the student is both competent to have made their own decision to
reveal the information and would not have done so.
Is this then a DDA or a DPA issue? And how would you proceed under those
circumstances?
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Peter Burgess
Sent: 07 July 2005 09:40
To: [log in to unmask]
Subject: Re: [data-protection] DPA and Confidentiality
We have based our policies on guidance issued by the Learning and Skills
Council in 2003 'Guidance for post-16 providers on implementing the
Disability Discrimination Act Part 4. Disclosure, Confidentiality and
Passing on Information'.
This guidance makes it clear that although under the DDA it is assumed that
once one member of staff has been informed of a student's disability all
members of staff know, it is nevertheless necessary to obtain the student's
explicit consent to process before the information can be passed on to
another member of staff.
We would normally ask the student for their consent. In the rare cases where
they are not willing to give it we have to resort to other ways of creating
a learning environment that supports them without revealing their personal
data. Eg. Carrying out additional risk assessments in workshops, field trips
etc. Most students seem to understand that we can support them better if we
are able to process their data so the situation does not often arise.
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Paul Ticher
Sent: 06 July 2005 17:19
To: [log in to unmask]
Subject: Re: [data-protection] DPA and Confidentiality
I can't remember whether this was discussed on this list or I found it
somewhere else equally reliable, but I am pretty sure of the following:
If the student tells a member of staff about a disability, they cannot
require the information to be kept secret by that member of staff.
Provided
the member of staff is acting in an official, not private, capacity they are
an agent of the organisation and the student has, in effect, told the
organisation. (What happens if the student mentions it down the pub, I
don't know.)
Even if the organisation needs at the time to make no "reasonable
adjustments" to accommodate the disability, they may have to show in future
that they considered that option and decided that it was unnecessary.
Therefore it must be recorded formally. In order to prevent the student
from feeling aggrieved if they did want the information kept secret, the
organisation must ensure that all students know, before they talk to anyone
about a disability, that secrecy is not an option (though confidentiality,
on a need to know basis, certainly is).
Also, individuals cannot voluntarily give up their rights under the Act.
This means that if a "reasonable adjustment" is necessary, and would
inevitably draw attention to the disability, the individual still cannot
insist on secrecy by preventing the adjustment from being made.
I can't give you chapter and verse on this. I think it must be in
amendments to the 1995 Disability Discrimination Act. There's a section on
it in the book I wrote on employment records, which was checked by a lawyer
who did not say that I was wrong. (That's not an advert for the book, just
evidence in support of what I've set out.)
Hope this is useful, but interested if anyone else disagrees.
Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB
I hereby require any recipient of this message not to use my personal data
for direct marketing purposes.
----- Original Message -----
From: "Nick Clark" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, July 06, 2005 10:19 AM
Subject: DPA and Confidentiality
A bit of advice required. A data subject (student in this case)
discloses information about a behavioural or physical disability to a
member of staff (e.g. a counsellor) and requests that this information
be kept confidential. However the nature of this special need is such
that action would need to be taken to enable access for the individual
or to protect others; how should we handle this? Can it be disclosed or
be required to be disclosed to the H&S Officer or to others that might
be vulnerable? We have a duty of care here.
We are trying to put together a policy for handling such cases, and
ideally everything would be open and cosy and the individual would give
their consent for the information to be used appropriately, but in
reality the individual might not give us the information if they knew it
would be used elsewhere.
Thanks in advance for any advice.
Nick
Nick Clark
Director of IT Services
Tower Hamlets College
+44(0)20 7536 5738
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