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DPA breach - is it if OT copy contracted solicitor into letter?(13 Posts)
Not that the ICO would care, but is this considered okay?
Who is the solicitor contracted to?
I'm thinking not so much DPA as potential breach of professional duty of confidentiality.
I don't know the answer to your question, but when we were going to Tribunal, the NHS OT came into school at the last minute, without informing me, carried out an assessment and sent it to the LA and their external barrister.
I never ever saw a copy of the report, to this day I still haven't seen it. As it was so late, and well passed deadline for evidence to be submitted late and I hadn't had an opportunity to see it, the Tribunal judges held it as inadmissible evidence.
I was too stressed out from going to Tribunal to complain about it; in retrospect, I should have done, as if nothing else, it was deeply unprofessional behaviour.
Solicitor contracted to LA. I was sent a discharge letter on the basis of the being informed that we were leaving the Authority and it was copied to county solicitor. At no point had I informed the LA, the OT OR the county solicitor that we were leaving the county and actually, at that point, we were not planning to (though subsequently did).
The private nursery that DS attended was phoned by the LA EP. The private nursery at that point knew that we were moving to get closer to ds' new school (had to tell them as we were also withdrawing dd from their preschool) but our intention at that point was to remain within the same LA iyswim.
The nursery told me that they were caught unguarded and apologised for telling the EP that we were moving but told us that the EP had threatened them with a tribunal order if they didn't answer all her questions.
Bizarrely, consent is only one of the grounds permitting disclosure under the DPA.
The ICO's view is that the first principle is not breached by sharing of information between bodies like health authorities and the LA as this is reasonable.
I think this is lawfully capable of challenge as the processing of data has to be for a lawful purpose and what is the lawful purpose in what they have done?
However, the ICO seem to conclude that once a child has an LA involved, it is quite appropriate for agencies to disclose whatever they like. They also will retrospectively justify this disclosure if a Tribunal is in existence, saying, under section 35 (2) that it was 'necessary'. This is, of course, without any evidence of necessity.
I do think this is capable of legal challenge and that it has wide implications for all those using health services associated with statemented children.
Perhaps I will punt it across to Irwin Mitchell when I have a moment.
An additional part of this story is that ds' statement for OT was predominantly for sensory processing. At the Annual Review I was informed that the diet had yet ti be started but would be.
The proposed amended statement removed all direct OT but recommended the school deliver sensory diet under advice of OT.
We appealed. I stopped getting a weekly summary from OT. I spoke to the school about it and they promised to remind OT. I suspected the OT had already withdrawn services and ds received no more OT from Annual Review date.
This woukd be easy to prove through a DPA request of clinical file and I know may be JR potential. - did provision have to remain whilst appealing? (although again regulating authorities woukd hardly care).
We subsequently moved (in LA) and had a letter welcoming us from new OT dept, though no IT followed despite statement still being under appeal.
Thank you IAT, that woukd be helpful.
I am under no illusion that I will win anything here but I still feel that perhaps a case has to be made all the same.
Great - I mean not great but if there are more of us saying the same thing, we may be able to persuade Irwin Mitchell to look at it.
I have just received a very dubious judgment from the ICO on the issue and they have ducked the legal issue of information exchange altogether but I think it is a very important one. The ICO even offered an excuse retrospectively for the health authority that they did not rely on themselves and as processing is supposed to be lawful in 'real time' I cannot see how retrospective justification is appropriate.
Of course, the answer is to shut me down and say take a JR if you want to challenge it further.
I think there should be very clear rules about this issue. I wonder whether Irwin Mitchell would investigate with a limited legal aid certificate in the child's name?
Did you sign any paperwork when your DS was first referred to anyone, or when he was referred for a Statutory Assessment? I remember that I had to sign a piece of paper which gave consent for agencies to share information.
If there was any sort of paperwork like that, then the OT can share the information with the LA. Whether the Solicitor counts as 'LA' will depend on the nature of his/her contract with the LA, I'd imagine.
Lougle, even if you don't sign, the ICO seem to suggest that this won't stop them permitting the free flow of information irrespective of its contents!
Yes Lougle. I signed for the sharing of information. Then 2 months later I wrote to the TAC manager stating that I withdrew consent and to send me a copy of original document. TAC manager said the original document had not been received so coukd not be forwarded.
So the ICO are seeing the consent as implicit to engaging with the process?
Star...that's tricky. Can you withdraw consent after giving it in these circumstances?
I'll do a little digging.
No Lougle, they see the data sharing as reasonable irrespective of the lack of consent. They make the point that consent is not required for the first principe, and they conclude that LAs and health authorities have a right to share information even if they don't have it.
Consent is neither here nor there whether it is explicit or implicit.
The ICO have not addressed the issue with of the lawful purpose of the information sharing. or the nature of the information shared.
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