I was discussing the fact that the majority of the medical profession are asleep and allowing the creation of databases not only at the Department of Health but also locally at PCTs etc. I spotted an interesting press release about the creation of databases by local PCTs.
The press release is interesting.
"The piece stated "The PCT can also leverage its existing knowledge bank. This may contain critical information about a GP such as gross misconduct, complaints or complimentary letters that can influence the outcome of the revalidation process. By utilising this bank, the PCT can provide critical information that may affect whether a particular GP should be recommended for revalidation by the GMC"
This means that cleared complaints continue to remain on the doctor's record. I have been concerned about databases for sometime ever since I saw the recommendation on the Shipman Inquiry that doctors historical fitness to practise histories will be held against them for their natural working life. The prejudice of shut complaints is clear. I have experienced it myself. Indeed, I have litigated on this to a great extent. Unfortunately, the prejudice caused by closed complaints is something that is not recognized by the judiciary. This means that practicing licenses can be revoked on a technicality leaving the doctor unable to work for sometime while the appeal process is ongoing. I fear it may be too late for the vast majority of doctors who have sat back in the last few years and allowed these centralised databases to be created so that authorities can hold personal and non personal information about them.
Sometime ago, I wrote a piece called I'm doctor not a database. I described a piece on Medical News Today.
Also
The only case law that exists regarding the issue of retention of data is related to R Pal v GMC 2004. I have listed the article below for reference for anyone who may require it. This is a leading case in the area of medical databases. I recognised the importance of these issues in 2004 as I understood what the Shipman Inquiry recommendations meant to the medical profession. Of course, it is a known fact that concerns may be raised with the GMC and the doctor may not be informed of them. They are still held by the Siebel database containing the doctors fitness to practice history.
No institution, organisation or company, no matter how august, can make up its own rules on how long it can retain personal data. This message comes through loud and clear in the recent ruling in the case of Dr Rita Pal v The General Medical Council 27 May 2004 (unreported). In this Birmingham District Registry decision from Deputy High Court Judge Charles Harris QC, the court dismissed an application by the GMC and three of its non-medical employees for summary judgment in an action brought against them by a GP for alleged breaches of the Data Protection Act 1998 and the Human Rights Act 2000, and in defamation. The defendants' submissions relating to the defamation claim were given short shrift and those relating the other claims fared little better.
Background
In 2000, Dr Rita Pal raised a number of complaints with the GMC. Most were in connection with the treatment of the elderly, but some contended that she was herself being victimised. Correspondence ensued and Dr Pal initially refused to be interviewed in connection with her complaints about victimisation. The GMC became concerned that Dr Pal may have been suffering from mental illness. A GMC "screener" was instructed to investigate, but found nothing. Indeed, no complaint had ever been received from a patient or another doctor in this respect.
The data protection and human rights claims
Dr Pal made two allegations in connection with the Data Protection Act. The first was that confidential information about her had been revealed to a Dr Rose, a Medial Director of North Cheshire NHS Trust; the second, that personal data about her were kept longer than was justified under the Act. Dr Pal also claimed that her right to privacy under Article 8 of the European Convention on Human Rights had been infringed.
Application for summary judgment
The defendants submitted that Dr Pal's data protection claims had no real prospect of success. In relation to the first allegation, they argued that damage could not be established since the matters were already in the public domain as a result of a newspaper article. In relation to the second allegation, it was argued that the documents held by the GMC in relation to Dr Pal could not be disposed of, because the GMC was reconsidering its policy on retention of papers and had been doing so for about four years.
In relation to the human rights claim, the defendants conceded that there was a prima facie breach of Article 8.1 of the European Convention on Human Rights, but argued that this was justified because they were acting in accordance with the GMC Rules of 1987 and only insofar as was necessary for the protection of health.
The data protection arguments
The defendants' data protection submissions were rejected. In relation to revealing confidential information, the deputy judge rejected the argument that damage could not be established. He commented that the scope of the newspaper article and the confidential information were not the same.
In relation to data retention, the deputy judge stressed that GMC policy must be in accordance with the law as set out in Principle 5 of the Data Protection Act. This provides that personal data processed for any purpose or purposes must not be kept for longer than is necessary for those purposes. It was therefore not open to the GMC to decide upon a policy which did not comply with the requirements of the Act. Merely because the GMC was taking some time to decide upon its document retention policy, this could not excuse or justify a failure to comply with the Act. Nor would the deputy judge accept that any wider concern for the safety of the public justified retaining the information.
Human rights
The deputy judge also felt that there were clearly triable issues in relation to the human rights claim, not least because it did not appear that the GMC had adhered to its own Rules. These Rules allowed information to be transferred and further enquiries to be made when information in writing or a complaint in writing was received that raised a question whether a doctor's fitness to practice was seriously impaired by reason of a physical or mental condition.
In fact, there had been no "complaint" in writing about Dr Pal at all. The defendants appeared to be relying on the tone and phraseology of Dr Pal's own letters as constituting "information". This, in the judge's view, was questionable.
In short
As the deputy judge noted, this is clearly a developing area of the law. Nevertheless, data controllers must make important practical day to day decisions on how they will comply with the Data Protection Act. What is clear from this decision is that no data controller can make up rules of its own that do not comply with the Act and neither can a data controller "postpone" compliance while they decide what to do.
Sometime ago, I wrote a piece called I'm doctor not a database. I described a piece on Medical News Today.
"At its first meeting of 2005, the GMC Council announced its willingness to host the central database, recommended by the Shipman Inquiry, holding information about every doctor working in the UK."
Also
"The Council also agreed to engage in early discussion with the Healthcare Commission and equivalent bodies in the devolved administrations, on the establishment of a complaints portal. The GMC has long argued the need for a single gateway to be established to help patients complain effectively. Dame Janet agreed with this idea, and proposed the establishment of a 'single portal'. The GMC intends to contribute towards the running of this portal, subject to discussion of the detailed arrangements"
The only case law that exists regarding the issue of retention of data is related to R Pal v GMC 2004. I have listed the article below for reference for anyone who may require it. This is a leading case in the area of medical databases. I recognised the importance of these issues in 2004 as I understood what the Shipman Inquiry recommendations meant to the medical profession. Of course, it is a known fact that concerns may be raised with the GMC and the doctor may not be informed of them. They are still held by the Siebel database containing the doctors fitness to practice history.
No institution, organisation or company, no matter how august, can make up its own rules on how long it can retain personal data. This message comes through loud and clear in the recent ruling in the case of Dr Rita Pal v The General Medical Council 27 May 2004 (unreported). In this Birmingham District Registry decision from Deputy High Court Judge Charles Harris QC, the court dismissed an application by the GMC and three of its non-medical employees for summary judgment in an action brought against them by a GP for alleged breaches of the Data Protection Act 1998 and the Human Rights Act 2000, and in defamation. The defendants' submissions relating to the defamation claim were given short shrift and those relating the other claims fared little better.
Background
In 2000, Dr Rita Pal raised a number of complaints with the GMC. Most were in connection with the treatment of the elderly, but some contended that she was herself being victimised. Correspondence ensued and Dr Pal initially refused to be interviewed in connection with her complaints about victimisation. The GMC became concerned that Dr Pal may have been suffering from mental illness. A GMC "screener" was instructed to investigate, but found nothing. Indeed, no complaint had ever been received from a patient or another doctor in this respect.
The data protection and human rights claims
Dr Pal made two allegations in connection with the Data Protection Act. The first was that confidential information about her had been revealed to a Dr Rose, a Medial Director of North Cheshire NHS Trust; the second, that personal data about her were kept longer than was justified under the Act. Dr Pal also claimed that her right to privacy under Article 8 of the European Convention on Human Rights had been infringed.
Application for summary judgment
The defendants submitted that Dr Pal's data protection claims had no real prospect of success. In relation to the first allegation, they argued that damage could not be established since the matters were already in the public domain as a result of a newspaper article. In relation to the second allegation, it was argued that the documents held by the GMC in relation to Dr Pal could not be disposed of, because the GMC was reconsidering its policy on retention of papers and had been doing so for about four years.
In relation to the human rights claim, the defendants conceded that there was a prima facie breach of Article 8.1 of the European Convention on Human Rights, but argued that this was justified because they were acting in accordance with the GMC Rules of 1987 and only insofar as was necessary for the protection of health.
The data protection arguments
The defendants' data protection submissions were rejected. In relation to revealing confidential information, the deputy judge rejected the argument that damage could not be established. He commented that the scope of the newspaper article and the confidential information were not the same.
In relation to data retention, the deputy judge stressed that GMC policy must be in accordance with the law as set out in Principle 5 of the Data Protection Act. This provides that personal data processed for any purpose or purposes must not be kept for longer than is necessary for those purposes. It was therefore not open to the GMC to decide upon a policy which did not comply with the requirements of the Act. Merely because the GMC was taking some time to decide upon its document retention policy, this could not excuse or justify a failure to comply with the Act. Nor would the deputy judge accept that any wider concern for the safety of the public justified retaining the information.
The deputy judge concluded that the Data Protection Act claim should not be dealt with summarily. Indeed, the deputy judge commented that, far from Dr Pal's personal data retention argument having no real prospect of success, her prospects might be quite promising.
Human rights
The deputy judge also felt that there were clearly triable issues in relation to the human rights claim, not least because it did not appear that the GMC had adhered to its own Rules. These Rules allowed information to be transferred and further enquiries to be made when information in writing or a complaint in writing was received that raised a question whether a doctor's fitness to practice was seriously impaired by reason of a physical or mental condition.
In fact, there had been no "complaint" in writing about Dr Pal at all. The defendants appeared to be relying on the tone and phraseology of Dr Pal's own letters as constituting "information". This, in the judge's view, was questionable.
In short
As the deputy judge noted, this is clearly a developing area of the law. Nevertheless, data controllers must make important practical day to day decisions on how they will comply with the Data Protection Act. What is clear from this decision is that no data controller can make up rules of its own that do not comply with the Act and neither can a data controller "postpone" compliance while they decide what to do.
1 comments:
This means that doctors need a second career up their sleeve! there is no way on this planet that anyone can jump through these hoops and have a single jot of integrity left to them!
Personally I have always thought that integrity was more important than authority but I am sure given the example set by the General Medical Council and Members of Parliament, this is a minority stance!
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