data protection

GDPR and retention of medical records

IODPA Admin data protection, Uncategorized
GDPR and retention of medical records

Don’t be discouraged. It’s often the last key in the bunch that opens the lock.”

– Author Unknown

 

Today, we are going to relay a story regarding the battle of a police pensioner to make his former force comply with the Data Protection Act 2018 and the GDPR and either return or destroy excessive amounts of personal data that they had no justification in holding.

As is usually the case, the force showed their usual contempt for this injured officer, and would only comply with the law when threatened with legal action.

When are police force going to realise that they are there to uphold the law, they are not the law!

The moral of this story is not to give up.

Here is his story –

 

In May 2014 after a horrendous journey fueled by the Police I was medically retired  after 28 years service having joined the police at 17 years of age. My medical retirement was due to crippling CPTSD caused by experiences serving as a police officer.

My treatment by the police service during my illness and EIHR process was awful  and made my fragile mental health much worse causing horrendous symptoms incidence including self harm along with suicidal thoughts and planning.

Upon retiring my wife wrote to the police asking for the return of my medical records that they had duped  out of us as part of the EIHR process. The thought of the them retaining my deeply personal information since my birth including information on my dead parents aggravated my PTSD and paranoia. The police replied that their policy was that they could retain my records until “I was dead” or reached the age of 100. At that time I explicitly withdrew my consent for the retention of my medical records.

My wife replied quoting detailed legal information around the DPA and human rights legislation and then strangely the police stopped communicating with us.

We then submitted a complaint to to ICO which was upheld and they wrote to the police force concerned informing them that continued retention of my records was illegal. They also asked the force to conduct a review of their retention policy, strangely again the force ignored this advice and refused to communicate on the matter.

I then took legal advice and was given funding from  the police federation to pursue a claim against the force for the destruction of my medical records as well as compensation for the damage caused  to mental health. What followed was a 3 year legal battle during which the force displayed a level of arrogance that should not have surprised  my but it did.

Finally with the imminent  with the threat of a court case pending the force conceded  and agreed to destroy all my medical records and offered me  a small amount of compensation. This agreement was signed by their legal services and is subject a court order enforcing it. The order also states that with the exception of the SMPs report “no further medical records relating to the claimant are retained by the defendant”

I am pleased this episode is behind my wife and I now and it brings closure to my treatment by a dishonest Organisation. It was a long battle but one I was prepared to see out and not be intimidated by the police that I used to believe in. Up and down the country the police are retaining medical records of veteran cops that they are holding onto illegally and for a variety of bizarre reasons. I would urge anyone reading this to take action against your force and obtain legal orders to stop the police holing onto your deeply personal information now and in the future.

I wish you all the best for the future and try not to be intimidated by the organisations you once served.

The General Data Protection Regulations (GDPR) and you

The General Data Protection Regulations (GDPR) and you

The General Data Protection Regulations (GDPR) and you

As a charity, we get asked a lot of questions about our rights under these new regulations. This guide is based on our interpretation, ongoing legal challenges and numerous advice that’s already been issued by the Information Commissioners Office (‘ICO’).

The Data Protection Act 1988 was superseded by the Data Protection Act 2018 and the General Data Protection Regulations (‘GDPR’).

Under Article 9 of the GDPR, special categories of personal data known as “sensitive data” includes “data concerning health”. This type of data should provide extra safeguarding against anyone (in our case, police forces and Selected Medical Practitioner (‘SMP’)) wishing to obtain, retain and process this type of data.

 

When can forces ask for “sensitive data”?

In general terms this will be;

  1. During the ill-health retirement process
  2. Consideration for an injury award
  3. Subsequent review of an injury award
  4. Police Medical Appeal Board (‘PMAB’) resulting from (b), (c) or (d).

The above is the usual sequence of events for an officer that retires after being injured on duty with an ill-health retirement and an injury award (gratuity and pension), so let’s look at them in a little more detail.

 

Ill-health Retirement Process

A Force Medical Examiner (‘FMA’), or the officer may make a request that they should be considered for ill-health retirement if they have a permanent disability (whether they have suffered an injury on duty, or not). Provided that that the request is not considered to be frivolous of vexatious, they must be referred to a SMP for consideration of ill-health retirement (‘IHR’).

Notwithstanding the fact that the officer may have supplied a full copy of their medical records when they were originally appointed as a police officer, they will often be asked again to supply a full copy for both the FMA and SMP to make an assessment as to the whether the officer has a permanent disability which would prevent them from performing the ordinary duties of a police officer.

It is correct to comply with this request as the SMP will need to complete a comprehensive report to the Police Pension Authority (‘PPA’) for their consideration as to whether they should retire or retain the officer. (Supplying medical records at IHR is different from a ‘Reassessment of injury pension’, often referred to as a review, commenced by a police force).

 

Request for an injury award

If an officer has suffered an injury on duty, they may apply for an injury award (one off gratuity and monthly pension). Again, it is perfectly normal during the application process, for the officer to supply their medical records in order that the FMA and SMP can make the necessary assessments.

Whilst it is perfectly acceptable for medical records to be seen by the FMA and SMP, who are both doctors, it is, in our view, unacceptable for any other person in the process to have access to a former officer’s personal medical history. This includes Human Resources (‘HR’) staff, admin staff within Occupational Health (‘OH’), force solicitors and even the PPA. None of these people are doctors or any other type of medical practitioners and do not have to make any determinations based on viewing your medical records, and therefore have no need to see your records.

Remember that when a person grants permission for forces to process (use or view) their data, the permission is for this sole purpose only and the force would need to rely upon renewed permission, or other statutory provisions to either retain or process it again (post).

Once the ill health retirement is complete, along with the injury award process, we believe that forces are entitled to hold only the minimum amount of information about an injured former officer, in order to justify your retirement and the payment of your pensions.

This may include –

  • The SMP certificate/report (H1 certificate)
  • Any accompanying report from the SMP
  • Specialist reports, if they were relevant to the SMP’s determination

Anything outside of this, in our opinion, would possibly breach the GDPR/DPA and would need to be justified on a document by document basis.

This is what the ICO had to say about the matter –

8th September 2017 – “It would appear that the constabulary is excessively processing sensitive personal data about you. It would appear that it is unnecessary for the constabulary to continue to retain information about your medical records, going right back to your birth.”

 

10th November 2017 – “In the light of the above, the ICO considers that the current requirement by [the police] for all historical data held about former officers as part of IODA reviews appears to be excessive and in breach of the DPA.”

 

13th September 2018 – “In relation to the deletion of your personal data I can explain that under the data protection legislation organisations like [the police] need to ensure that personal data is kept for no longer than is necessary.”

 

Putting the above information into practice, we would, therefore, suggest that at the conclusion of the ill-health retirement/injury award process, former officers write to their force and inform them that the force stop processing their (the pensioner’s) data. Pensioners should request that their data be returned to them or destroyed.

Please note that there is no statutory requirement for forces to provide a destruction notice if they destroy your data, and they do not need your permission to do so. We would hope that if a force have destroyed data at an officer’s request, they would confirm in writing that they have complied.

A Subject Access Request (‘SAR’) under Article 15 GDPR to the force will quickly confirm what data they are currently holding and something we would advise everyone to do. (A template of a SAR can be found on our website).

 

What can forces demand from you during a review?

Under Regulation 37(1), forces are permitted to review the level of an injury award as long as there has been a suitable interval in a pensioner’s particular circumstances. Forces that do review will often ask for a whole range of information from a former officer including, but not limited to, a full copy of medical records from birth, ask for a comprehensive questionnaire to be completed along with requesting information about DWP benefits and also copies of tax returns from HMRC.

There is nothing stopping forces from asking for all this information, in fact they can ask for the moon on a stick, but just because they request it, it doesn’t mean that they are legally entitled to have it, or that a pensioner has to comply!

The ICO have said –

13th September 2018 – “Further to this, it is our understanding that Injury on Duty reviews consider the period from the original assessment or most recent review. We would therefore expect that the information obtained should relate to this timeframe; information sought outside of these time periods may be considered excessive.”

 

This point mirrors the case of LAWS which tells us that if a pensioner is called for a review of their injury pension under regulation 37(1), it is a comparison exercise from the date of retirement, or the last review to the present day. This means that the last known position is their starting point, and the SMP needs to identify substantial alteration from this point until today. As there is no requirement to go back beyond this point, it therefore follows that forces do not need to retain or process data prior to this point, or request it afresh.

 

Who can obtain a pensioner’s data?

During the review process, the SMP is acting on behalf of the PPA, and this is what the ICO has said this about their role,

21st August 2018 – “Based on the information that we have, it is our view that SMPs are likely to be data controllers in their own right. This is because they are making medical decisions based upon an individual’s sensitive personal data, and this decision is independent of [the police].”

 

13th December 2018 – “It is likely that the SMP’s are likely to be data controllers in their own right in addition to the [police] also being a data controller.”

 

Now, this position raises some interesting questions; the SMP is an independent medical authority and a data controller in their own right so what authority do forces’ HR departments, or even Occupation Health admin staff have in demanding personal sensitive data? We believe that all requests should come directly from the SMP to the pensioner. The data should not be seen by anyone other than the SMP, and at no stage should it be passed to the FMA, HR, Occupation Health, force solicitors or the PPA.

Indeed, this position is further enforced by the ICO –

20th April 2018 – “If our understanding is correct it would seem that it would be for a medical professional to determine what information is needed for each review on a case by case basis (our emphasis).”

 

21st August 2018 – “Therefore, when it comes to determining what personal data needs to be requested to conduct an Injury on Duty assessment or review this is ultimately down to the SMP.”

“However Article 5(c) of the GDPR states that personal data shall be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed.”

“It is our understanding that Injury on Duty award reviews consider the period from the original assessment or most recent review. We would therefore expect that generally the information obtained should relate to this time-frame.”

“Each injury on duty review is different and so the information being sought should be decided on a case by case basis.”

 

It is clear to us that it is the SMP who should be requesting this data directly from the pensioner and it should not be made by any other department or persons designated by the PPA. Additionally, they should be able to justify each request and just not make a blanket request in all cases.

Using this information and again, putting it into practice, if a force’s FMA, HR department, Occupational Health, force solicitor, or PPA write to you asking for ANY medical information, we suggest that the pensioner informs them that no one other than the SMP is entitled to request information for a review. Any medical notes that you choose to supply should go straight to the SMP, with the added assurance that they would not be shared with anyone other than that SMP.

We’ve established who can ask for what and why, but despite all this advice from the ICO, there is nothing in The Police (Injury Benefit) Regulations 2006, that says you need to hand anything over. Readers will probably be aware that this very issue was the the subject of a legal challenge in the case of Baker & Ors v Chief Constable of Staffordshire Police. The judgment handed down made it clear that the SMP may ask for what they consider necessary to complete the reconsideration.

We would therefore advise anyone being called to a review by their former force, not to hand any documents or medical records over at all unless specifically requested by the SMP. We would further suggest that any medical information os handed directly to the SMP and not to the force.

 

What can forces do with data that they already have?

If readers have been following us up to this point, we should have reached the stage where forces should only be holding the bare minimum of data, since the pensioner’s original retirement or last review, whichever came last.

When conducting a review, forces are asking pensioners whether they consent to them processing this data. The ICO have this to say –

20th April 2018 and the 5th September 2018 – “Although consent is not defined by the DPA, it should be freely given. Where an individual has no option but to consent to the processing of their personal data, it is unlikely that consent has been freely given. This therefore raises fairness concerns and in our view we do not believe that consent is an appropriate condition to rely on for the processing of sensitive personal data.”

 

13th September 2018 – “In data protection terms consent should only be relied upon if an individual has a genuine choice as to how they wish their data to be processed. As an Injury on Duty review does not seem to be optional, seeking consent does not appear to be fair or reasonable as the individual has no alternative but to consent.”

“To comply with the ‘lawful’ aspect of this principal [the police] must have a lawful authority for processing under Article 6, and Article 9 in the case of special category data, of the GDPR.”

 

What the ICO are saying here, is that giving consent under GDPR to view or process your medical data should be freely given, specific, informed and unambiguous. In order to obtain freely given consent, it must be given on a voluntary basis. The element “free” implies a real choice by the data subject. If the pensioner does not have the option to say no because forces have a legal right to review, and thereby process your medical records, it cannot be true consent. This being the case forces should be using a statutory authority if they have it, rather than relying on consent.

 

What data should be supplied to a PMAB?

Whenever you make an appeal to a PMAB, like the SMP, they should be supplied with a full copy of your medical records.

It has recently come to our notice, that historically forces have been obtaining an officer’s or former officer’s full medical records for and on behalf of the PMAB. This practice is undoubtedly a serious breach of the GDPR.

Prior to a PMAB, an officer or pensioner will sign an authority permitting their medical records to be released from their GP surgery to go to the PMAB direct. What has been discovered is happening, is that this consent form is handed back to the force where the officer is from, and the force is requesting the medical documents from the GP surgery. The medical records are duly sent to the force where solicitors, HR staff and other unqualified medical personnel are reading very private and sensitive data, of which they are not entitled to do.

If you are attending a PMAB, we suggest that that you ensure that you provide the appropriate authority DIRECTLY to the PMAB, with the clear instructions, that it MUST be them that makes the application to your doctor and that under no circumstances should the letter of authority or any data obtained be passed to any other third party.

The ICO Audits Staffordshire Police

Admin IODPA data protection, Freedom of Information, ICO
The ICO Audits Staffordshire Police

We are drowning in information and starved for knowledge.

― Author Unknown

 

One of the many advantages of being a member of IODPA is the availability of expert knowledge on a variety of topics, all relevant to police injury pensions.

One way we assist our members is by informing them of their rights as ‘data subjects.’

The term ‘data subject’ refers to any individual person who can be identified, directly or indirectly, via an identifier such as a name, an ID number, location data, or via factors specific to the person’s physical, physiological, genetic, mental, economic, cultural or social identity. In other words, a data subject is an individual whose personal data can be collected.

In the course of an officer’s career, their force accumulates considerable quantities of information about the individual. In the case of injury-on-duty pensioners that accumulation of data does not stop on their retirement – their force keeps on gathering it.

Trouble is, some forces don’t look after the personal information they acquire.

It is fair to say that data protection law rarely springs to the forefront of injury-on-duty pensioners minds. That is understandable, but when we see that a large and professional organisation, seems to have little knowledge of how the law requires them to manage the huge quantities of data they acquire and store, then we begin to worry.

One such deficient organisation is Staffordshire Police, which has just been shockingly revealed to be in dire need of improving its data handling processes and procedures.

The Information Commissioner’s Office has recently published its Executive Summary of a Data Protection Audit which it conducted of Staffordshire Police. You can read it here.

 

The report concludes Staffordshire Police could provide only limited assurance that,

processes and procedures are in place and delivering data protection compliance.

Moreover, the audit identified,

considerable scope for improvement in existing arrangements to reduce the risk of non-compliance with the DPA.

The ICO report is also critical of Staffordshire Police’s lack of a data protection policies, a lack of awareness of arrangements for sharing information, out of date information about data protection on its web site, failing to advise people about fair processing of personal information, an inability to show that information held was accurate and up to date, no publication scheme covering freedom of information requests and responses, and a low training rate of employees on data protection.

That covers pretty much all of the areas of data protection law, and shows that Staffordshire is failing in all of them.

What this means for injury-on-duty pensioners can be best illustrated by recounting some of the experiences of our members.

We are told of swathes of personal information being lost or destroyed, including important records confirming entitlement to an injury pension.

We are informed of the opposite – of Staffordshire unnecessarily retaining huge quantities of sensitive personal financial and medical information relating to former officers, and in some cases, relating to third parties such as family members.

We hear of long delays in responding to Freedom Of Information Act requests.

We are notified of inaccurate information being held, and of very sensitive personal information being accessed by employees without the permission of the data subject.

 

The situation is so bleak within Staffordshire Police that some of our members have been compelled to make formal complaints to the Information Commissioner’s Office. It is our understanding that these complaints will reveal even more deficiencies in Staffordshire’s handling of personal information.

The ICO report advises, ‘The matters arising in this report are only those that came to our attention
during the course of the audit and are not necessarily a comprehensive statement of all the areas requiring improvement.’

IODPA believes that Staffordshire is only one of many forces who are failing in respect of data protection.

The Information Commissioner’s Office provides a valuable and important safeguard of injury-on-duty pensioners’ data rights and we applaud the ICO for its work and for bringing the deficiencies of Staffordshire Police into the light of public knowledge. The findings of the ICO’s initial audit are, we hope, a salutary wake-up call to Staffordshire and to all other forces who casually process so much personal information whilst starved of knowledge of data protection law.

More ICO advice for Northumbria Police

IODPA Admin data protection, ICO, newsflash
More ICO advice for Northumbria Police

Another interesting development regarding the use of injured pensioners data by Northumbria Police and complaints that have been made to the Information Commissioners Office (‘ICO’).

IODPA believe that a number of police pensioners have made similar complaints regarding their former force attempting to coerce them to hand over their private and sensitive data (medical notes).

Many of them have taken the step to complain to the ICO, who have now issued advice to them.

The complaints have been centred around consent being freely given when considering releasing medical notes, the retention of medical notes and Subject Access Requests. The upshot is, that it is “unlikely that NP are complying with the first principal of the Data Protection Act”, which states that personal data should be processed fairly and lawfully.

Please note, this is advice from the ICO as opposed to a formal decision notice and it is for individuals. We would imagine that the ICO would come to the same conclusion for any pensioner with a similar complaint, regardless of force.

Of course this is not the first time that the ICO have provide advice in relation to Northumbria Police – https://iodpa.org/2017/11/24/northumbria-police-federation-wins-ico-advice-notice/

If you believe your data is being processed unfairly, please get in touch with the ICO – https://ico.org.uk/

 

 

Northumbria Police Federation Wins ICO Advice Notice

iodpa data protection, newsflash
Northumbria Police Federation Wins ICO Advice Notice

Inspector Adrian Smiles, a Northumbria Police officer, and vice chairman of the Northumbria Police Federation has asked the ICO to rule on the matter of demanding full medical records from birth.

The artificially high, SMP imposed,  glass ceiling of a PPA’s definition of attendance has been smashed and put beyond doubt by the Information Commissioner in the declaration that such demands of personal and sensitive data is excessive and a breach of the Data Protection Act.

 

 

The Protection of Personal Data & The Sad Story of “Z”

iodpa data protection, medical records
The Protection of Personal Data & The Sad Story of “Z”

“If I maintain my silence about my secret it is my prisoner…if I let it slip from my tongue, I am ITs prisoner.”
― Arthur Schopenhauer

One important aspect of privacy is recognised in common law – that of the confidentiality of medical information.   Patients should be free of the fear that they will be harmed by disclosure of clinical information as a result of engaging with a doctor.

In the UK there are various statutes and statutory instruments that require doctors to reveal information, which would otherwise be considered confidential. For example the reporting of notifiable diseases (Public Health Control of Diseases Act 1984) or notification of terminations of pregnancy (Abortion Regulations, 1991).  The Abortion Regulations provides a good example of the clarity given to the subject’s protections when medical information has to be disclosed, its section 5 specifically refers to the restrictions placed on disclosure of information.   There are ten parts to this section that explicitly spells out the limited remit of any information disclosed to the Chief Medical Officer and his delegates relating to abortions and the narrow window that it can be processed.

It is by no accident then, that the Police (Injury) Benefit Regulations (PIBR) does not reference at all the words ‘medical records’ or ‘medical notes’.  Given this fact, that no mention of the limitations of disclosure is made, such as you’ll read in the Abortion Regulations, it is clear that there is no requirement for disclosure in the first place!

There is also no implied obligation to do so because it would involve the state asserting an unqualified right to inspect confidential medical records.

Think on this for a second:  There is only one small sample of the UK populace who is frequently threatened to disclose all and every piece of medical information ever written about them in their entire life on a whim of a non-medical HR agent working for a police force.  Fail to acquiesce and a HR minion will terrorise a disabled former police officer by saying they will stop the injury award that person receives.

Everyone else in the UK is protected from such a menace – but the HR minion authoring the threats blithely continues onwards without pause.

Bureaucrats such as the medical retirement officer from Merseyside police demands full medical records from birth, ignorant (or not caring) that a request for such medical records isn’t mandated by any law.  If the former officer is female, the fact that these medical records may contain records of an abortion and therefore protected by the statutory instrument mentioned above, is criminally overlooked by the officious functionary.

When a statutory instrument calls for medical information, this is what you’ll find:

“A notice given or any information furnished to a Chief Medical Officer in pursuance of these Regulations shall not be disclosed except that disclosure may be made…[]”STATUTORY INSTRUMENTS 1991 No. 499 MEDICAL PROFESSION The Abortion Regulations 1991

Their ignorance is beyond comprehension.  In reality everyone, those with injury awards included, also have protections under the Human Rights legislation.

Don’t take our word for it.  Just listen to the European Court of Human Rights (ECHR).

It will not surprise our constant readers that the European court found that domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention.

In other words there has to be effective and adequate safeguards against the possibility that either irrelevant or medically inaccurate information recorded would be re-circulated and used out of its original context to the prejudice of the person.  Such safeguards as exampled in the UK Abortion Regulations!

Before we go on an exploration of a judgement made by the European Court of Human Rights it’s worth saying first that Brexit will not change anything about the point we will make here.

The ECHR is not part of the EU and will not change on Brexit as it is completely separate from the EU.  The ECHR was drafted in the aftermath of the Second World War and adopted by the Council of Europe in 1950. It was incorporated into UK law through the Human Rights Act 1998.  Arguably, the Great Repeal Bill, which will become an Act in 2019 or 2020, will do quite the opposite of repealing anything: although the Bill will remove the 1972 European Communities Act (ECA), which gives EU law authority, first it will adopt EU law lock stock and barrel into UK law

OK.  Proviso dealt with.

We are going to talk about what the ECHR thinks of “The State” using it’s authority to demand things of it’s citizens – specifically personal data.

In 1997 “Z” applied to the European Court of Human Rights alleging that her right to privacy under the Convention was violated when her HIV status was disclosed by the media during her husband’s criminal trial.

Z v. FINLAND – 22009/93 – Chamber Judgment [1997] ECHR 10 (25 February 1997)

You are here: BAILII >> Databases >> European Court of Human Rights >> Z v. FINLAND – 22009/93 – Chamber Judgment [1997] ECHR 10 (25 February 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/10.html Cite as: 25 EHRR 371, (1999) 45 BMLR 107, [1997] ECHR 10, (1998) 25 EHRR 371


This ECHR case turned on issues of privacy as Z was the applicant complaining that Finland’s legal system had not protected her privacy rights under Article 8 of the European Convention on Human Rights throughout the process.

The Finnish police tried to investigate when X, the spouse of Z, became HIV positive to prove an attempted manslaughter charge against X;  subsequent to the victims being raped by X.   At the 1993 manslaughter hearing, Z’s doctor was called as a prosecution witness and told the court about Z’s medical history, specifically a blood test taken from Z three years earlier.   Z also took the witness stand and told the court that she had not been infected with HIV by X.

All the medical records of Z were seized by the Finnish police who added them all to items of evidence in the case files.  These records comprised some thirty documents.  Such seizure would be unlawful in the UK by virtue of the Police and Criminal Evidence Act 1984 (PACE)*.

*PACE Sections 8 and 9 and schedule 1 (see R v. Central Criminal Court ex parte Brown (1992) TLR Sept 7th) in the absence of agreement by those holding the records the police have no powers to seize or have access to ‘documentary and other records’.

X was convicted of attempted manslaughter for the three rapes he committed in 1992 and solely rape for the offence committed in 1991.   The court sentenced X to seven years imprisonment and decreed that the reasoning and case files (including Z’s medical records) should be kept confidential for a decade.

Just after the first trial a leading national newspaper reported the seizing of Z’s medical records under the headline “Prosecutor obtains medical records of wife of man accused of HIV rape”.  The article published the first name and family name of Z.

In December 1993 the convictions were upheld by Finland’s Court of Appeal.  Further, the 1991 rape as well as newly introduced 1992 rape charge was now judged to have been attempted manslaughter.  The reasoning was released to the media.  It contained a passage where Z was named as a carrier of HIV and that as the wife of X, this gave X reasonable suspicion to think he was also infected.  In any case, the Court of Appeal sentenced X to a further four years.

The media again published identifiable information of both Z and X after the Court of Appeal sent the decision by fax on the day the hearing was concluded to several newspapers.

Under Finnish law, the Court of Appeal had the power to omit any identifiers of individuals in their judgements.  The ECHR heard whether the Court of Appeal was justified to release the disclosure of Z’s identity and HIV status in the Court of Appeal’s judgement made available to the press.

It was explained to the ECHR that X’s lawyers had petitioned for the confidentially order of a decade to be extended and that Z remained anonymous.  The Court of Appeal had paid no heed.

The EHCR ruled that the publication of Z’s identity and medical condition was not supported by any cogent reasons and accordingly the publication gave rise to a violation of Z’s right to respect for her family and private life as guaranteed by Article 8.  The EHCR also made a ruling on the special nature of medical data:

In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (art. 8).

The court made it clear that health data has a special preeminence:

Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

We are fortunate in the UK.   Existing primary legislation such as PACE, Access to Medical Reports Act and the Data Protection Act ‘should‘ prevent medical records floating around so many of the case file bundles as happened in the case of Z.

Would the story of Z reached the ECHR if not for the media leak?  Perhaps, perhaps not.  But that’s not the point.  The point is, once medical records are ‘released into the wild‘ the subject loses control over them.

Clearly UK lawmakers know this and that is why the Abortion Regulations puts safeguards on such sensitive medical information.  The ECHR ruled that medical information needs unrivalled protection and that is why the PIBR, as a similar statutory instrument, does not call for medical records by not referencing them and by not implementing safeguards on any, HR or SMP invented, ‘implied disclosure’.

When a HR minion demands full medical records from birth there is always a possibility that your medical records will fall into the hands of those not entitled to access them.  And as a consequence the material is misused.  The story of Z is an extreme case but the Finnish Court of Appeal still made a massive mistake that potentially can be repeated if medical records aren’t treated as the most sensitive and confidential of all personal documentation and never disclosed in full just because a SMP wants to see the “whole picture”.

Are you sufficiently confident that the Finnish Court of Appeal is more incompetent than the Occupational Health unit of a police service you used to serve with?  And that your own confidential data couldn’t be used in untoward processing?  Do you know whether your medical data relates to any 3rd party?

Murphy’s law comes into play here.  The adage that is typically stated as: Anything that can go wrong, will go wrong.  No public organisation is beyond making the same mistake as one of the highest Finnish court.  Indeed, given how often police HR departments cock things up and the frequency that the Police Injury Benefit Regulations are contravened there is a much higher probability that the HR department could lose and misuse such sensitive medical data.

Talking about the original ten year confidentially order (breached by the Court of Appeal) the EHCR stated plainly that:

the interference with the applicant’s private and family life which the contested orders entailed was thus subjected to important limitations and was accompanied by effective and adequate safeguards against abuse

We’ll repeat this again: There are no limitations and there are no safeguards provided by the Police Injury Benefit Regulations in relation to confidential medical records.  Why?  Because there is no mention of confidential medical records in the Regulations.

A police force asks for full medical records from birth because their default position is that the injury award grant was wrong.  And they want their double jeopardy.  They want to reduce their financial commitment and will gladly look for a medical incident when you were 11 years old to justify their malevolence.

Case law is quite clear in this matter.  Pollard, Turner and Laws all state the last decision is final.  There is no right for them to have any medical records.  The clock cannot be ‘turned back’.

Tell them this and refer them to this blog if the HR minion disagrees.

How would the HR minion react if they themselves, or close family members, were victims of such bullying and bureaucratic blundering?  You would hear their personal outcries of injustice in their own reaction to a public authority, decades after their own retirement, sending a missive demanding disclosure to their own full medical history.

Best they realise now that following ‘orders’ gives them no protection.  They should think very carefully before signing letters demanding things they have no legal justification to demand.

 

 

 

 

 

 

 

Redacted/Unredacted

iodpa data protection, Federation, Freedom of Information, Legal Services, morale
Redacted/Unredacted

“And above all, watch with glittering eyes the whole world around you because the greatest secrets are always hidden in the most unlikely places. Those who don’t believe in magic will never find it.”
― Roald Dahl

Here’s the reality. This blog and the examples of institutional corruption we are highlighting  against medically-retired former police officers – and likely, those who are both vulnerable and mentally fragile – is part of the large-scale abuse of those with injury awards in this country. To an abuser who likes power and control, a disability is perfect.  The adversary to power and control is exposure.

Exposure can be denied.  So when is something off-limits and how can a public body hide disclosure under the Freedom Of Information Act?  The Freedom of Information Act in the UK does have some limits on disclosure. One method to comply with the act whilst meeting these limits is supplying material in a censored or “redacted” format.

Often you have to take the word of the public body that the redaction has been applied correctly. So when you have both the redacted and un-redacted versions of minutes from the same Avon & Somerset meetings – all of which are concerning their administration (or should that read maladministration) of injury awards – it’s evident that taking this word at face value is a mistake.

Now that these minutes are in the public domain you have the opportunity to decide whether their redaction was legitimate.

Before we get there, let us just discuss redaction.  In this method, a document is made available but with some text removed (often literally with a black marker pen). In the most straightforward cases, this may be just removing the names of junior officials or office staff, usually for privacy reasons.

It’s understandable when  redacted information constitutes personal data, and the public body would be in breach of the Data Protection Act if it were to put such information into the public domain.

But in other cases, large amounts of text are illicitly removed so that documents are almost unreadable and the information value is minimal – for no other reason than they’ll rather you not see it.

This redaction technique is abused so that certain nincompoops can deliberately leave no trace of their decision-making process within the public body they serve.

Strangely enough, such cretins seem to pop up in the administration of injury awards.

Can the disclosure of un-redacted meeting minutes really be prejudicial to the effective conduct of public affairs?  What happens if the public affairs being minuted involves evidence of Malfeasance in a public office, or official misconduct?

Redaction does not give officials an excuse to cover-up the commissioning of their unlawful acts, done in an official capacity, which affects the legitimate performance of true official duties.

It is both highly disturbing and in the public interest to discover an official policy tasked to look at the medical files relating to every individual who was medically retired by a certain deceased police surgeon (employed by Avon & Somerset police between 1972 and 2006), to ascertain if such medical retirement was in their ‘view’ unlawful/illegal.  Especially as this doctor is at the epicentre of an ongoing historical sexual abuse inquiry named Operation Hay.

Potential victims – all who served as police officers – now are suffering the ignominy of a small number of devious employees within Avon & Somerset Police digging through (and without any consent to process) sensitive personal and medical data relating to their injury awards.  In other words, a shadow investigation exists – running parallel to a major criminal inquiry – with the sordid misapprehension that every decision made by this police surgeon (employed by this force for over 30 years) is now open to be revisited.

Isn’t it absolutely abhorrent that the force chooses to investigate only the things relating to their mania to reduce injury awards and seemingly they are in no hurry to question the blood tests of convicted drunk drivers, rape cases or assaults this police surgeon helped to convict?

The IPCC is currently looking into allegations that when a number of officers – likely the same people whose medical files retained by this force are now being ferreted by Dr David Bulpitt –  came forward on separate occasions throughout the 1990s to complain about Dr Bunting, those complaints were not properly investigated by the force.  In other words, whilst the IPCC’s investigates the Operation Hay cover-up the same force is conspiring against the victims whose complaints were brushed aside.

Here are a few choice sentences that the eager redaction gremlins working in A&S attempted to hide from Freedom Of Information disclosure of the minutes of an Avon & Somerset injury award liaison group meeting.  Redaction that we’ve recovered (hence the slightly different font) that tried to hide that Dr David Bulpitt, the current force medical advisor, has been tasked with the thorough inspection of the files of potential victims.

DBu [David Bulpitt] to review all individuals’ records identified through Op Hay to ascertain which Dr awarded their band or undertook a review of a band given.Avon & Somerset OH Review meeting 23rd October 2015 action log

And

During the course of conversations it became clear that there were some concerns around why certain awards may have been made by the Dr in post at the time. It was agreed that DBu would review all of the names that are on the Op Hay list to see if they had been given an illegal/incorrect award as a result of being seen by the individual who is currently subject of an investigation.Avon & Somerset OH Review meeting 23rd October 2015 Minutes

Of course, A&S do not want the public to know this as it contrary to the law for them, in any way imaginable, to try to revisit old statutory decisions – so they take the black marker to it and redact it all in an attempt to cover it up.

Fortunately for the public good, there is an un-redacted version in the public domain.  The left side shows what happens when you give a black permanent marker to crazed scribblings of an over-enthusiastic denier of public disclosure:

Redacted Un-redacted
minutes-23rd-october-2015-before minutes-23rd-october-2015-after
 Raw & Unformated Version

Click on the image and a new tab will show the disclosure in it’s entirety.  You can use the arrows in the bottom right to toggle to the page two for those with multiple pages.pdf-next-page
We now also get to see evidence that legal services has finally accepted that the GMC enforces that every individual seen by a SMP is a patient of that SMP.

DJ [Daniel Johnson] indicated that due to the information forward to Legal Services from DBu [Dr David Bulpitt] they now had a much clearer understanding of the difficulties being experienced as a result of the GMC indicating that each individual under the review is classified as being a patientAvon & Somerset OH Review meeting 23rd October 2015 Minutes

That each and every person seen by a Selected Medical Practitioner (the prerequisite of such being GMC registration) is their patient is fact – after all it is a medical question – but they want to censure that they now accept it.  We’ve been trying to tell them this for years: the GMC guidance is unambiguous:

The first duty of a doctor registered with the GMC is to make the care of their patient their first concern. The term ‘patient’ in this guidance also refers to employees, clients, athletes and anyone else whose personal information you hold or have access to, whether or not you care for them in a traditional therapeutic relationship.
GMC Confidentiality: disclosing information for insurance, employment and similar purposes

So why is it redacted?  Could it be because it proves their position wrong perhaps.

They also decided to retract information about Operation Hay, as mentioned above, and they talk about the implied threat that legal services are going to put in the letter about suspending an injury award when consent to medical information is withdrawn.

This leads us to the ‘action log’ from the same meeting.  They redacted the recorded statement that their lawyer, Daniel Johnson, stated that such suspension is unlawful but, as an aside, they’ll still write a letter dripping with a purely heinous form of blackmail, that will be sent out to imply an unlawful thing will be actually be carried out.

Were these threatening letters actually sent out?  Perhaps they were, and the poor recipient capitulated to a threat with menaces.  Ironically, to acquiesce to such blackmail usually results in a ‘gun for hire’ SMP applying apportionment or some unlawful earnings assessment to reduce the injury award; see the predicament the former officer faces? – they are truly damned if they don’t and then damned anyway.

If anyone reading this has received such a letter, then they are advised to seek counsel with a specialist solicitor.

Looking behind the black permanent marker and you see this:

DJ advised the Pension Authority that when sending out letters to individuals who have withdrawn consent that a reduction in banding given can only be implied as you cannot predetermine and outcome if release is not madeAction Log 23rd October 2015

So far they have obviously redacted the truths that we have been shouting for a while, but few in a position of power believed – the truth that they manipulate the law for their own ends.

Here is the action log for the 23/10/2015 meeting in its ingloriously malignant splendour:

Redacted Un-redacted
action-log-23rd-october-2015-before action-log-23rd-october-2015-after
 Raw & Unformated Version

Rather than try to hide it by redacting, the stuff found within shouldn’t have been thought, said nor written in the first place.

What else have these deviants been up to?

The 1st of March minutes has a section redacted that mentions reviewing people without passing the medical question to the SMP. On it’s own, this isn’t too aberrant.  However, if you factor in the draconian practice this force has conducted to drag severely ill people – those who haven’t had any correspondence from the force for a long time – in front of Dr Philip Johnson without exemption, you start to wonder why the sudden deviation from their usual behaviour.

Apparently a band four (therefore one of Dr Bulpitt’s  unfavoured selfish and preposterous few) and band one were reviewed on paper by Dr Bulpitt himself, without the demand to be medically examined.  Rather a change of tactic here given that Dr Philip Johnson earned £74,220 for 46 days work from Avon & Somerset in from December 1st 2015 to 11th October 2016.

Redacted Un-redacted
minutes-1st-march-2016-before minutes-1st-march-2016-after

If Bulpitt was doing the work of a SMP, why was Johnson still being paid?  And why are some retired officers forced to see Dr Johnson and interrogated for two hours when others get a free pass for a paper review?  Consistency is not their strong point.

And finally onto the 14th June 2016 minutes.  This is the excerpt that has been redacted from the document on the left:

RW raised the issues of information disclosed via FOI’s, as LG personal email  had been disclosed, although we are unsure through which avenue FOI or
Subject Access request.
Action: SA to check with relevant depts. and CD to check with JK  SA/CD

RW is Richard Wand.  He is a former constable and now a civilian employed by Avon & Somerset Federation JBB as a Regulations and Welfare Advisor

Redacted Un-redacted
14th-june-2016-notes-of-iod-liaison-group-mtg-before 14th-june-2016-notes-of-iod-liaison-group-mtg-after
Raw & Unformated version

Hardly a section that screams out to be redacted given LG is unidentified and RW is listed, un-redacted, as an attendee: Richard Wand RW Police Federation.  There does not seem to be any sane reason why redaction has been implemented but it is a clear example why you shouldn’t trust the whys and wherefores they use to justify redacting something.

They want to hide behind the black permanent marker.  Unfortunately on this occasion the marker was filled with disappearing ink.

Abuse of the Freedom of Information Act is bad enough when it happens.  When it is the Police performing the abuse the affect is magnified exponentially as their expected standard is higher given their position and that they have a near-monopoly on the use of coercive force.

It is also clear that when these people do things in the full knowledge that they are wrong they put aside the fact that the legitimacy of the police in the eyes of the public is a significant determinant of police effectiveness.

For those reading this, shocked and with their mouths agape, staring at a screen and trying to parse everything that has happened, here’s a recap:

  • The lead solicitor for the Legal Services department of Avon & Somerset constabulary has confirmed that Regulation 33 PIBR 2006 cannot be used to punish the withdrawal of medical consent.  Despite this, he is fully prepared to deceive a member of the public into believing that their injury award can be punitively reduced by suggestion alone.  This policy had been redacted as a means of censorship to avoid the ensuing scandal. 
  • The force medical advisor of the same police force that employed a doctor (now deceased), whose actions are currently under investigation for dozens of sex attacks on young officers during medical examinations, has taken it upon himself to revisit final statutory decisions by looking whether all the ill-health retirements decided by the police pension authority, over a period of 30 years, were unlawful.   This policy had been redacted as a means of censorship to avoid the ensuing scandal.

You might think that sounds conspiratorial. It is.

This is more than just isolated bad-apples.  The utterings of those who attended these IOD liaison meeting meetings was not redacted by them – powers above them allowed this happen.  Another internal department would’ve been complicit in deciding  to remove whatever they considered sensational:  Corporate Information Management, Legal Services and no doubt, members of the senior executive team must have had a role to authorise this.  You can imagine how it was said, with a red-faced senior figure screaming “whatever you do, don’t let that get out!”

What does it say about the culture of ethics existing in such an organisation that allows a cover-up to evolve into a conspiracy.

When a member of Parliament gives such a damning speech in the House of Commons – Mr Ian Liddell-Grainger (Bridgwater and West Somerset) (Con) on the Chief Constable Of Avon And Somerset Police Force – there is clearly a systemic ‘rotten barrel’ explanation that permeates through the senior management subculture.

From this point onwards do not give the police force you served with the benefit of the doubt.  When you are sent a threatening letter, think that they are probably lying and trying to coerce you to do something you have no lawful obligation to do.

If you are disclosed heavily redacted information then demand them to explain the exemption applied.  If they refuse to explain why each and every sentence has been blacked out then take the matter to the ICO.

The minutes should be specific to the matter being minuted.  You asked for disclosure from that meeting and therefore everything talked about, excluding the obvious personal information, should be in play for disclosure.

Hiding behind a veil of secrecy is an act deployed by Soviet Union’s KGB and East Germany’s Stasi.  It is unforgivable for such tactics to be seen in the UK.

As our skin crawls, it is worth forcing ourselves to look at the reality – we must confront not only the scale of these abused, disabled victims but also this country’s failure to help them.

 

 

Is Your Data Safe in Police Hands?

iodpa College of Policing, data protection
Is Your Data Safe in Police Hands?

“Success does not consist in never making mistakes but in never making the same one a second time.”
― George Bernard Shaw

 
Our officers stand on the thin blue line ready to protect their community. In truth, quite often that thin blue line is a battle line we have drawn between law abiding citizens and the criminals who would harm them.

When the concept of a uniformed police force was first championed by Sir Robert Peel in London in the early 1800s, he was met with much resistance due to fears of what would essentially be a standing army within the city; comparisons were made to police as a government-sanctioned occupying force. The problem of how to enforce laws while preserving rights is not at all new.

Those police officers sweating it out on the front line: that’s where the concept of Guardian Policing comes in. But the Guardians of these Guardians are failing the thin blue line.

Those behind the scenes are not competent custodians of the data they hold on both those who serve the public nor those that have been medically retired – even victims are being let down by shockingly lackadaisical data protection procedures.

The management of personal data within police forces has become a travesty and police and civilian senior management are acting like an occupying army in defence mode and under siege. Whilst they disingenuously proclaim their conduct is correct, in reality rights and liberties are definitely not being preserved.

We at IODPA have been saying that Police Pension authorities have no lawful and legitimate reason to demand full disclosure of medical records from birth when they decide to review an injury award.

Put the question of the legality to retain personal sensitive data aside momentarily and stop to think for a second … if you are a medically retired officer with an injury award, do you think that your personal sensitive data is in good hands? Do you really think it is safe for them to hold your full medical records for eternity – to dip into them whenever they like, by whomever they like?

Think again. In July 2016 Big Brother Watch published a report entitled, ‘Safe in Police Hands’. The subtitle of the report is ‘How Police Forces suffer 10 data breaches every week and still want more of your data’.

Everything contained with this report is relevant to your confidential data retained when you, as a police officer, was medically retired. Police forces do not treat your data with extra care just because you used to serve as a police officer. The truth is quite the opposite. You are more likely to be a potential victim of a data protection breach compared to a member of the public, for they definitely have your data – others become victims as and when they come into police contact.

Often they will have lost your data but they will claim they haven’t. They will cherry-pick and redact information when supposedly complying with a subject access request under the Data Protection Act. Given your own knowledge of your former employer, do you think they have the capacity to be prepared to conceal, remove or destroy incriminating evidence of injustice you suffered but otherwise, until asking for your data, had no physical proof?

They are quick to deny they breach data protection protocols. The numbers say differently:

Table 1. 1st June 2011 – 31st December 2015

No. Police Force Number of Data Breaches
1 West Midlands 488
2 Surrey Police 202
3 Humberside Police 168
4 Avon and Somerset 163
5 Greater Manchester 100
6 North Yorkshire 98
7 Cheshire Constabulary 85
8 Dorset Police 81
8 Kent Police 81
9 Merseyside Police 77
10 West Mercia 73

Just this week there have been major breaches of personal data involving involving not only GMP but the supposed guardian of the police complaints system in England and Wales, the Independent Police Complaints Commission.

The quote from the victim’s solicitor is very revealing. Showing the default position of defensiveness-  never to admit there’s been a problem unless they’ve been forced by an external agency to come clean.

He added GMP had initially refused to accept it had done anything wrong and its internal investigation concluded no officer had infringed the police code of conduct.

If they never accept they are wrong are the self-reported figures given to answer Big Brother Watch’s Freedom of Information request actually accurate or it is an under-representation of the true number of breaches?

What is the point of the College of Policing data protection principles if they can’t even ‘police’ themselves?