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Patient Confidentiality and SEN

(8 Posts)
Besieged Sun 09-Mar-14 23:18:51

Does anyone know whether the following constitutes a breach of the Data Protection Act, or any other useful legislation?

I have a young child with ASD, hence special educational needs. We are locked in an increasingly aggressive fight with the LEA to obtain an appropriate Statement of SEN for her, which is going to Tribunal (a Statement was issued, but it fails miserably to describe her needs with any accuracy and provide for her to access any education). Adding complexity to the case, my daughter also has cancer - and is undergoing intensive chemotherapy which prevents her attending any school at all (she's extremely vulnerable to infection, so unable to be around other children or groups of people). Medical information (from Hospital), including updates as they occur, has been provided by me to all parties involved in the case -LA included.

Recently, I've become aware that the LA has been phoning my daughter's oncology consultant to ask for medical information. They've also had a lawyer write to the hospital to seek similar info. I was not told of this by the LA, so obviously had not given consent. My question then is whether the LA has acted illegally?

I would have believed that they could only seek/obtain medical information with my knowledge and consent. I'm wondering whether this breaches the Data Protection Act, or any other helpful legislation? The LA has behaved abominably throughout this case, and it's only become worse and more aggressive since my daughter became ill with cancer. If they've also acted illegally, I could really use some advice.

TIA!

zzzzz Sun 09-Mar-14 23:57:39

I don't know the ins and outs of it but someone will come along who does. We have some very savvy legal minds on MNSN.

What I can share is that we had th same thing with SENCO trying to get ds1s dx (which he doesn't have but she obviously thought they could tell her informally shock ) from ds1s consultant. The consultant was gobsmacked that she was trying to pressure him for information without our consent.

Icimoi Mon 10-Mar-14 01:36:42

I don't think it's necessarily wrong for the LA to ask, but what would definitely be wrong would be for the oncologist to give out the information without your permission: the duty of confidentiality in relation to medical information is the doctor's, not the LA's. I hope he told them to bog off?

Who is their lawyer? This sounds very like the approach of the firm of lawyers that the LA instructed in my case, in that they were incredibly aggressive and seemed to be out to win at any cost and absolutely didn't care that a disabled child was at the centre of all this.

zzzzz Mon 10-Mar-14 14:56:18

icimoi why dont you think its wrong for the local authority to try and obtain private medical information without consent?? shock

PolterGoose Mon 10-Mar-14 16:43:33

Message withdrawn at poster's request.

Icimoi Mon 10-Mar-14 18:25:31

What I meant was that it isn't illegal for the LA to ask. They aren't breaking the doctor's duty of confidentiality, and he is free to say no.

Besieged Sat 15-Mar-14 18:18:22

Thanks all, sadly my own research also suggests the onus is all on the data holder not to divulge. So whilst it's certainly unethical for the LA to ask for information that requires the holder to break the law if they comply - the DPA isn't going to help me. It seems the hospital was lead to believe it was social services asking (very strange, since DD doesn't have a social worker involved) - and the note of conversation was taken by Education.... If no direct legal avenue, I would hope its at least enough for the LAO to take an interest.

No, I certainly did not sign any consents at the time of requesting a Statement. I didn't sign anything at all, bar my own (2 line) letter requesting a SA.

StarlightMcKingsThree Sat 15-Mar-14 18:22:31

It's possibly worth getting it in writing that the hospital believed it was SS asking and for them to explain how and why they thought this.

They are at risk of litigation against them if they don't do as you ask here in order to help you to put things right.

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