Explicit Consent

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lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 9:35 am
New changes are coming through in the next couple of years around how personal data is used.

The notion of implied consent i.e. you are in the process or activity so consent can be presumed is going out of the window.

For an idea of the changes that are possible see http://www.out-law.com/en/articles/2015 ... n-reforms/.

It is long winded but basically some of the changes include greater restrictions on the use of data including where obtained for one purpose consent is demonstrated if the use changes.

Where consent is overridden because of another statutory gateway organisations will need to be able to demonstrate the legal basis for their actions whilst at the same time demonstrating that the DPA is still being complied with.

All of this is happening because of new technology, who is perceived to be the owner of personal data and the use of the cloud.
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grimswold

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Post by grimswold » Fri Jul 03, 2015 10:46 am
That's interesting because the NHS works on implied consent when it is treating you - could create a lot of problems if this form of consent is abandoned. Can you imagine having to give consent to every doctor, nurse, physio, et al who needs to see your medical notes?
 
 

lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 11:02 am
Those problems are already there as a consequence to changes in 2013.

Also says it all when the best guidance for gaining consent for treatment comes from Private Eye.
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grimswold

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Post by grimswold » Fri Jul 03, 2015 11:12 am
We've managed OK with our multiple and sometimes life-in-the-balance dealings with the NHS this year but I forsee problems - probably another step on the road to privatisation. Just as stupid as printing the price on the medicines (some of mine cost a LOT) as all this will do is mean that the elderly don't take their meds out of a sense of duty. Maybe we should stamp everything in the House of Commons with "Paid for by the UK taxpayer" including the MPs themselves.
 
 

lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 11:38 am
The fine regime will be harsher as well.

This was a police force that had a breach linked to recordings left in a decommissioned police station that had been bought:

A police officer found them when the owner received a visit on an unrelated matter in 2012 – three years after the police force left the property. The building’s new owner said he was "planning on watching them for entertainment".

Following a full search of the property, police found hundreds of confidential documents and videos including interviews with victims, informants and convicted criminals.



Read more: http://www.itpro.co.uk/data-protection/ ... z3ep7PxvOi
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Michael Peoples

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Post by Michael Peoples » Fri Jul 03, 2015 12:13 pm
It does seem odd that one taxpayer funded body fines another taxpayer funded body to the benefit of whom?

We have the same situation where taxpayer owned banks are fined by the FCA so we are always the losers.
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lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 12:32 pm
The ICO fine regime is extending see https://ico.org.uk/action-weve-taken/en ... ssist-ltd/ and http://www.telegraph.co.uk/finance/news ... under.html.

The problem is that the public sector must "voluntarily" report incidents but in reality has no choice.

There are incidents mentioned on the board where if that happened in the public sector they would have had to be reported to the ICO because of the sensitivity of the information being disclosed.

As for who gets the money - the ICO doesn't but may do going forward as a means of income generation.
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ginger323232

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Post by ginger323232 » Fri Jul 03, 2015 6:05 pm
That's interesting because the NHS works on implied consent when it is treating you - could create a lot of problems if this form of consent is abandoned. Can you imagine having to give consent to every doctor, nurse, physio, et al who needs to see your medical notes? - See more at: http://www.iva.co.uk/forum/topic.asp?wh ... 061#587860

grimswold - Medical staff dont need you consent to see your notes - simply because the notes and information within these belong to the Health Trust (not the Client) This is one of the reason why you have to apply to see your notes. Also Information can be withheld if its deemed harmful.
Also in certain circumstances information can/will be shared without your consent (ie Child/Adult Protection)which overturns all data protection issues
Last edited by ginger323232 on Fri Jul 03, 2015 6:06 pm, edited 1 time in total.
 
 

lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 6:24 pm
Not strictly true - medical staff need a legitimate relationship with the patient to see their notes in the same way that admin staff do.

Additionally the folder structure for the notes is owned by the Secretary of State for Health but the contents remains in the "ownership" of the patient with the data controller being the Trust when allowing access.

The point at which this changes is when the patient dies but then the record is covered by FOI, the common law duty of confidence and the Access to Health Records (the latter does not apply to council records and common law takes priority).

There are exemptions to this and any medical record and its contents have to be authorised by clinician in case it causes harm.

However, with the Caldicott 2 requirement to allow online access to records by patients this is a boundary that will be pushed and this will be reflected on ongoing DPA changes.

Safeguarding as an activity has a different legal basis but the DPA still applies in terms of records management and ensuring that entries are dated, timed etc.

It is a criminal offence to inappropriately access records - see https://ico.org.uk/action-weve-taken/en ... it-dhanju/ linked to the NHS but there are other examples linked to banking, telecoms etc.
Last edited by lifenoteasy on Fri Jul 03, 2015 6:36 pm, edited 1 time in total.
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lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 6:27 pm
That should read the "...latter does NOT apply to council records and common law takes priority)." - See more at: http://www.iva.co.uk/forum/topic.asp?wh ... 061#587900
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Post by Foggy » Fri Jul 03, 2015 6:37 pm
font size="1" face="Verdana, Arial, Helvetica">quote:<hr height="1" noshade>Originally posted by lifenoteasy

That should read the "...latter does NOT apply to council records and common law takes priority)." - See more at: http://www.iva.co.uk/forum/topic.asp?wh ... 061#587900
Amended accordingly, lifenoteasy, in case anyone takes the post out of the context of the thread.
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lifenoteasy

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Post by lifenoteasy » Fri Jul 03, 2015 6:41 pm
Ta:)
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abbiesmum2003

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Post by abbiesmum2003 » Sun Jul 05, 2015 4:13 pm
To add to the nhs thing....we actually have to obtain consent to everything although it can be verbal "can i check your blood pressure" 'yes nurse' then pt gives you their arm is seen as consent but we then have to clearly document in pts notes 'verbal consent obtained to monitor patients vital signs'. We have to do mental capacity assessment on anyone who does not have capacity for making decisions even if only temporary due to illness and do things within their best interests and apply for a deprivation of liberty order to allow us to perform treatment and care. Consent has completely chsnged within nhs in recent years. Sorry to waffle! just thought id add that implied consent isnt really how it is except in a life threatening emergency situation
 
 

lifenoteasy

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Post by lifenoteasy » Sun Jul 05, 2015 4:22 pm
Especially when you are having to ensure that never events do not take place.
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