If the Mental Capacity Act 2005 were in force it would probably be a breach
of that.
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: "Tim Trent" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Thursday, July 07, 2005 10:22 AM
Subject: Re: DPA and Confidentiality
> 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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