The Solicitor is professionally incompetent here. Any reading of the Data Protection Act should make it clear to an intelligent adult (let alone someone allegedly trained in the law) that the information belongs to the individual and you are only following the requirements of this law in refusing them access as they are not named as the recipient of such data by the individuals. The fact that they are an in house team defending the claim, or consent has been given for you to supply the records to the plaintiffs solicitor is irrelevant to your duties under the DPA as Custodian of the Medical records. Oh and if they tell you someone else in the organisation is the legal custodian of the medical records and they are not a health care professional, ask them to show the Information Commissioner registration document with this on. Again any Competent Solicitor will be aware that they can receive a copy of the relevant documentation from the Plaintiffs Solicitors through application of the DOJ Procedural rules, which is where they are given the process of legal access to information in order to defend the claim.

 

I suspect you are dealing with either a very Junior or a very lazy Solicitor.  Alternatively, you are dealing with a  clerk or Secretary who is actually unaware of the law and feels that they can make it up as they go along.

 

If they persist you can do the following

 

1.       Send a copy of their correspondence to the Information Commissioner’s. A letter from them to the legal dept will raise this matter to the head of partnership very quickly.

2.       If you are still getting pestered and threatened, Copy the Correspondence to the Law Society with a complaint. This will hyperdrive the action in 1.

 

You can ask both of these organisations for your complaint to be anonymous.

 

Appreciate that you may not want to do this for an in house team but if they really are that lazy or incompetent then they have absolutely zero chance of defending a claim in the first place, a decent firm of personal injury lawyers will highlight their failure to follow the rules!, and you could get caught in the crossfire.

 

Bob Guest

 

 

Thanks all.

The Solicitor is adamant they can have access to these reports without the employees consent, as they too work for the business and the reason for seeing the reports is to defend a claim.  The reports have already been released to the HRBP originally so they cant understand why I can release the same copy again to them.

I just want to ensure am correct in what am saying and the evidence to back it up.

Thanks

Adel

 

 

Hi

I agree and the solicitor will know this. You need consent to release and personal & sensitive data and in the case of an OH report the employee can insist on seeing it first and even then withhold consent at any time.

The only records that the employer can see without consent is health surveillance results as that is a legal requirement for the company to perform this.

Hope this helps!

Hazel

-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]] On Behalf Of Victoria Henry
Sent: 26 October 2016 13:34
To: [log in to unmask]
Subject: Re: [OCC-HEALTH] Release of OH records

Hi Adel

You're absolutely right and I don't think you even need a meeting to discuss this if you've already made it clear to them the reasons why ie? Access to medical reports/Data protection/NMC CofC...they need to obtain consent from the employee for this and not try to persuade you to go against what is legally and ethically wrong. I'm sure they wouldn't be happy if health professionals were releasing confidential information about them without their written consent!?

Stick to your guns, push it back to them...good luck

Victoria Callaghan

Sent from my iPhone

> On 26 Oct 2016, at 11:19, Adel Dickinson <[log in to unmask]> wrote:
>
> Morning all
> Hoping you maybe able to share your thoughts / advice.
> Legal department (in house) are requesting copies of OH records for 2 employees. As such I have advised I need consent via the employee to do so. They are very unhappy with this as they have a deadline of 7 days to get all the info, and to them it appears I am blocking.
> We do have a protocol which explains reasons why consent is needed.
> The OH report also states that the report can be viewed by others not originally stated on the referrals in such cases etc....
> However, obtaining the reports in this manner may be from the original HR officer, not OH.
> Once the OHA releases to those initially agreed, then releasing to anyone else after that point I require consent.
>
> Does / has anyone else had similar? How did you overcome this? Am I right in what am saying above?
> As such a meeting has now been arranged with the company solicitor, HR and myself to discuss, I would like to ensure I have all the facts to hand.
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