Dear All,
Friday question territory so bear with me.
Council wants to use social care information provided by a client.
Council says “We meet our Article 6 lawful basis with 6(e) “Public Task”, and we meet our Article 9 with 9 (2) (h) (social care)”
Person says “Wait you need my consent to use this information.”**
Their argument is that anyone relying on 9 2 h must consider 9(3) “those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy” Therefore, you can only process with my consent since you are subject to a duty of secrecy which is also a duty of confidence. If you are dealing with confidential data, then you can only process with my consent.
They argue that NHS guidance says: https://www.health-ni.gov.uk/articles/common-law-duty-confidentiality
Three circumstances making disclosure of confidential information lawful are:
· where the individual to whom the information relates has consented
· where disclosure is necessary to safeguard the individual, or others, or is in the public interest
· where there is a legal duty to do so, for example a court order
They argue that disclosure is the same as use in that anyone outside the team who might use, such as when social care information is shared across teams as the person moves along the care referral process from referral team to assessment team to social welfare team. Therefore, if you use my personal information without my consent then we will sue you for Misuse of Private Information.***
Now the counter argument is following.
The council is correct to collect the personal data with 6 (e) public task and not 6 (a) consent because consent and public task are mutually exclusive. You cannot rely on both since you don’t consent to a public task in that you cannot withdraw from council tax and ask the council to stop processing your council tax.
The council is also correct to rely on 9 (2) h for social care as they are delivering social care. If they were delivering safeguarding they would rely on Schedule 1 paragraph 18 http://www.legislation.gov.uk/ukpga/2018/12/schedule/1/paragraph/18/enacted
The client is incorrect to argue about consent for use because of the above. They would have a view to disclosure or sharing with another organisation since that would raise confidentiality issues.
Does this make sense?
**This is not going to work because lawful basis are mutually exclusive. You cannot use consent and public task or consent and contract for the same processing because consent cannot be truly withdrawn if you are continuing to process on the other basis.
***The client could not apply for damages under MoPI since it is within a public organisation delivering a public service. They would have a case for a breach of confidence but only to the point where they could show it was actionable.
What are your views?
Thanks
Lawrence
Lawrence Serewicz
Information and Records Manager
Transformation and Partnerships
Durham County Council
County Hall
Room 143-148 4th Floor
Durham
County Durham
DH1 5UF
Direct 03000 268 038
Switchboard 03000 26 0000
www.durham.gov.uk
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