DATA PROTECTION LEGISLATIVE FRAMEWORK (GDPR)
ALAS HEALTHCARE
Scope
Policy Statement
Section 1
Overview of the Act
Definitions
Data Protection Principles
“Lawful bases” for processing
Consent
Legal Obligation
Legitimate Interests
Individual Rights
Privacy notices, transparency and control
Information Commissioner: Role and Function
Code of Conduct and Certification Mechanisms
Derogations and Exceptions
Code of Practice
The Policy
Section 2
Lawful Bases
Data Protection Principles
Individual Rights
Privacy Notices
Privacy and Electronic Communications Regulations (PECR)
Data Protection by Design
Privacy Impact Assessment
Reporting Breaches
National Data opt-out
File Retention
Compliance
Related Policies
Related Guidance
Training Statement
Appendix – TEMPLATE: Privacy Notice
What information do we collect about you?
How information about you will be used
How we will use this information?
Access to your information and corrections
Appendix – TEMPLATE: Data Breach Record
On 25 May 2018 the Data Protection Act 2018, which is based on the General Data Protection Regulation (GDPR) replaced the Data Protection Act 1998 in its entirety. It replaced the existing Data Protection Laws to make them fit for the digital age in which ever-increasing personal data is being processed. The Act set new standards for protecting personal data. Gives people more control over the use of their data and assists in the preparation for a future outside of the EU.
There are 4 main matters provided for, these are:
General Data Processing
Law Enforcement Data processing
Data Processing for National Security Purposes
Enforcement
All the above need to be set in the context of international, national and local data processing systems which are increasingly dependent upon internet usage for the exchange and transit of data. The UK must lock into international data protection arrangements, systems and processes and this Act updates and reinforces the mechanism to enable this to take place.
Given the size of the legislation and some of the media hype surrounding its introduction, this policy is written in two Sections.
Section 1 Overview of the Act.
Section 2 The Policy and templates
Section 1
Overview of the Act
The Act is structured in seven parts, each of which covers specific areas. These are:
Part 1: Preliminary
This sets out the parameters of the Act, gives an overview, explains that most processing of personal data is subject to the Act and gives the terms relating to the processing of personal data.
Part 2: General Processing
This supplements the GDPR and sets out a broadly equivalent regime to certain types of processing to which the GDPR does not apply.
Part 3: Law Enforcement Processing
This covers:
“Competent authority”
Meaning of “controller” and “processor”
Data protection principles
Safeguards regarding archiving and sensitive processing
Rights and access of the data subject, including erasure
Implements the law enforcement directive
Controller and processor duties and obligations
Records
Co-operation with the ICO commissioner
Personal data breaches
The remedy of such breaches
Position of the data protection officer and their tasks
Transfer of data internationally to particular recipients
National security considerations
Special processing restrictions and reporting of infringements.
Part 4: Intelligence Services Processing
This covers only data handled by the above e.g. MI5 and MI6 and includes rights of access, automated decisions, rectification and erasure, obligations relating to security and data breaches.
Part 5: The Information Commissioner
This covers:
General functions including publication of Codes of Practice and guidance
Their International role
Their responsibilities about specific Codes of Practice
Consensual audits
Information to be provided to the Commissioner
Confidentiality and privileged communication
Fees for services
Charges payable to the commission
Publications
Notices from the Commissioner
Reporting to parliament
Part 6: Enforcement
This covers the new enforcement regime in relation to all forms of Notice issued by the Commissioner
Powers of entry and inspection
Penalty amounts
Appeals
Complaints
Remedies in the court
Offences
Special purpose proceedings
Part 7: Supplementary and Final Provision.
This covers legal changes which the new Act alters concerning other legal matters, e.g. Tribunal Procedure rules, definitions, changes to the Data Protection Convention etc. and List of Schedule(s).
As you can see, this Act is a huge piece of legislation, the majority of which is outside the remit of service providers working within the Adult Health and Social Care Sector. The I.C.O. confirms that many concepts and principles are much the same and businesses who were complying with the old law were likely to be already meeting many of the key requirements of the GDPR and the new Act.
The Information Commissioner says the Act represents a “step change” from previous laws. “It means a change of culture of the organisation. That is not an easy thing to do, and it’s certainly true that accountability cannot be bolted on: it needs to be a part of the organisation’s overall systems approach to how it manages and processes personal data”. It’s a change of mindset regarding data handling, collection and retention.
We need to stop taking personal data for granted, it’s not a commodity we own: it is only ever on loan. Individuals have been given control and we have been given the fiduciary duty of care over it!
As an organisation handling personal data on a day to day basis, this policy sets out the requirements of the Act and how we, as an organisation will meet our legal obligations. Staff awareness and understanding of their responsibilities regarding the handling, collection and retention of data will be core to the successful embedding of this policy.
Definitions
The GDPR applies to “Controllers”, “Processors” and “Data Protection Officer” and to certain types of information, specifically, “Personal Data” and “Sensitive Personal Data” referred to in the Act as Special Categories of Personal Data”.
“Controllers”
This role determines, on behalf of the organisation, the purposes and means of processing personal data.
“Processors”
This role is responsible for processing personal data on behalf of a controller. The Act places specific legal obligations on you, e.g. you are required to keep and maintain records of personal data and processing activities. This role has legal liabilities if they are responsible for any breach.
Data Protection Officer.
This role is a must only in certain circumstances if you are:
A public authority (except for courts)
Carry out large scale systematic monitoring of individuals e.g. Online behaviour tracking
Carry out large scale processing of special categories of data, or data relating to criminal convictions and offences e.g., Police, DBS bodies, prison service etc.
“personal data”
This means any information relating to an identifiable person can be directly or indirectly identified in particular by reference to an identifier. So, this would include name, reference or identification number, location data or online identifier. This reflects changes in technology that incorporates a wide range of different identifiers. Personal Data applies to both automated and manual filing systems. It can also apply to pseudonymised e.g. key-coded can fall within the GDPR dependent on how difficult it is to attribute the pseudonym to a particular individual’s race, ethnic origin, politics, religion, trade union membership, sex life or sexual orientation.
“Special Categories of Personal Data”
This category of data is more sensitive and much more protected. Sensitive personal data specifically includes genetic data, biometric data, health, race, ethnic origin, politics, religion, trade union membership, sexual orientation Safeguards apply to other types of data e.g. criminal convictions and offences; intelligence data etc.
Data Protection Principles
The GDPR sets out the following principles for which organisations are responsible and must meet. These require that personal data shall be:
Processed lawfully, fairly and in a transparent manner in relation to individuals.
Be collected for specified, explicit and legitimate purposes, and not further processed in a manner that is incompatible with purposes, further processing for archiving purposes in the public interest, scientific or historical research. purposes or statistical purposes shall not be considered to be incompatible with the initial purposes.
Adequate, relevant and limited to what is necessary for the purposes for which they are processed.
Accurate and where necessary kept up to date, every reasonable step must be taken that personal data that is inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay.
Kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed.
Personal data may be stored for longer purposes in so far as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to the appropriate technical and organisational measures required by the GDPR (the safeguards) to safeguard the rights and freedoms of individuals.
Processed in a manner that ensures appropriate security of personal data. Including protection against unauthorised or unlawful processing and accidental loss. Destruction or damage, using appropriate technical or organisational measures.
“The controller shall be responsible for, and be able to demonstrate, compliance with the principles” Article 5 (2) GDPR
“Lawful bases” for processing
There are 6 lawful bases for processing data. These are:
Consent: the individual has given clear consent for us to process their personal data for a specific purpose.
Contract: the processing is necessary for a contract you have with the individual, or because they have asked us to take specific steps before entering into a contract.
Legal Obligation: the processing is necessary for us to comply with the law (not including contractual obligations).
Vital Interests: the processing is necessary to protect someone’s life.
Public Task: the processing is necessary for us to perform a task in the public interest, or for official functions and the task or function has a clear basis in law.
Legitimate interests: the processing is necessary for our legitimate interests or the legitimate interests of a third party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (Does not apply if a public authority is processing data to perform its official tasks).
“Lawful bases” must be determined by the organisation before processing any personal data and thorough consideration must be given to this decision.
Service users must be aware of the lawful base used by this organisation to process their personal data
Consent
The GDPR sets a high standard here. Consent means offering individuals real choice and control. Consent practices and existing paperwork will need to be refreshed and meet specific requirements. These are:
Positive opt-in, no pre-ticked boxes or other methods of “default” consent.
A clear and specific statement of consent.
Vague or blanket consent is not enough.
Keep consent requests separate from other terms and conditions.
Keep evidence of consent – who, when, how, and what you told people.
Keep consent under review.
Avoid making consent to processing pre-condition to any service.
Employers need to take extra care to evidence that consent is freely given and should avoid over reliance on the consent.
Consent is one lawful basis to consider but organisations in a position of power over individuals should consider alternative “lawful bases”. If we would still process their personal data without consent, then asking for consent is misleading and inherently unfair.
Note: Consent within this policy relates only to data processing not Health or Support in a Social Care context. You must still use consent as defined within the Mental Capacity Act 2005 to deliver services
Legal Obligation
Put simply, the processing is necessary for us as an organisation to comply with the law, e.g. the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires us as providers to collect, handle and process data in a prescribed manner.
Legitimate Interests
This is the most flexible lawful basis for processing.
It is likely to be appropriate where we process in ways that people would reasonably expect us to, with a minimal privacy impact, or where there is a compelling justification for the processing.
There are 3 elements to consider when using this lawful base. We need to:
Identify a legitimate interest.
Show that the processing is necessary to achieve it: and balance it against the individual’s interests, rights and freedoms.
Legitimate interests can mean our organisations, interest of third parties, commercial interests, individual or social benefits.
The processing must be necessary.
A balance must be struck between our interests, the individual’s and would it be reasonable to expect the processing, or would it cause unnecessary harm, then their interests are likely to override our legitimate interests.
Keep a record of your legitimate interest’s assessment (LIA) to help you demonstrate compliance.
The above are the 3 most pertinent bases for Health and Social Care data processing activity.
Contract, Vital Interests or Public Task
These apply within specific work settings and would be difficult to meet because service providers are subject to specific legislative and regulatory requirements to work within a “Regulated Activity”.
Individual Rights
The GDPR provides the following rights for individuals:
Right to be informed
Right of access
Right to rectification
Right to erasure
Right to restrict processing
Right to data portability
Right to object
Rights concerning automated decision making and profiling.
All relevant guidance to individual rights is not yet complete, Working Party (WP)29 will continue to work and produce such guidance as is thought appropriate.
Any individual request which falls into the above categories this organisation will follow the relevant guidance currently available on the following website.
https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/whats-new/
Privacy notices, transparency and control
To start a privacy notice, you need to tell people, as a minimum
Who you are.
What you are going to do with their information.
Who it will be shared with.
Being transparent, and providing accessible information, is core to compliance and the GDPR. Privacy notices are the most common way to meet the GDPR requirements.
Transparency, in governance or business context, is honesty and openness and the more transparent we can be the more easily understood and access our services become to the people who use them. In the context of data processing is simply that:
“It should be transparent to natural persons that personal data concerning them are collected, used, consulted, or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of their personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processor and further information to ensure fair and transparent processing in respect of the confirmation and communication of personal data concerning them which is being processed.”
Information Commissioner: Role and Function
The Information Commission Office is the UK’s supervising authority.
Within the Enforcement Toolbox, the Information Commissioners Office known as the I.C.O. can now issue substantial fines of up to 20 million, or, 4% of an organisation’s global turnover for certain data protection infringements. Fines, when appropriate, will be of the discretion of the I.C.O. with considerable variations expected to be levied. There are no fixed penalties or minimum fines, though there are different maximum fines for different breaches. The GDPR also empowers the I.C.O. to create tailor made solutions to deal with infringements brought to their attention. This does not mean that organisations can relax about compliance, but diligent small and medium sized organisations can take comfort in the fact that they are unlikely to face the sort of punitive fines that rogue tech giants could face.
The highest imposed fine limit was £500,000 under the old Act (1998) but the highest fine ever imposed was £400,000 to TalkTalk for failings in connection with a cyber-attack in 2016. The Information Commissioner is playing down the “scaremongering because of misconceptions”. £20 million fines could put businesses out of business and that is not the intention of the GDPR, though there is a seismic shift in the number of fines that could be imposed.
The role and scope of the I.C.O. have not fundamentally changed, but rather has been expanded and enhanced via the GDPR.
Codes of Conduct and Certification Mechanisms
Although the use of any of the above is encouraged by the GDPR it is not obligatory. If an approved code of conduct or certification scheme becomes available that covers our processing activity, consideration will be given to working towards such a scheme as a way of demonstrating our compliance. The I.C.O. will develop its code of conduct as it has already worked with the Direct Marketing Commissions Code of Conduct: DMA Code.
Derogations and Exceptions
The Act provides that member states of the EU can provide their own national rules in respect of specific processing activities.
All Data Controllers must be familiar with Schedules 1-18 of the GDPR as these are the lawful exemptions pertinent to many other legal frameworks and Acts. These Schedules cover things such as Parliamentary Privilege, Health and Social Work, Criminal Convictions (Additional Safeguards), Research, Statistics and Archiving, Education Child Abuse, and include specific provisions for data processing within the Schedule(s).
For example Schedule 15: Powers of Entry and Inspection. This Schedule sets out the powers of the Information Commissioner’s Office in relation to warrant(s) issued by the courts which allow the I.C.O. to enter premises and inspect data field there, including the seizure of documents. Schedule 18 is where all the legislative changes, in all pertinent primary legislation, is found, including the repeal of the Data Protection Act 1998. As the Act is embedded into the organisation, Data controllers, their role and responsibilities, will need to be reviewed and revised to ensure compliance.
Codes of Practice
The Act enhances the role of the Information Commission’s Office (I.C.O.) in the compilation of such Codes and these will be available in due course. We must be regularly checking the I.C.O. website to keep up with current guidance.
The Policy
Section 2
This organisation believes that all data, required for the delivery of the service and the lawful running of the organisation must be collected, handled, maintained and stored following the requirements of the Data Protection Act 2018.
The General Data Protection Regulation (GDPR) form the basis of the Act but to be effective and compliant with its requirements, the Related Policy list should be viewed as core to this policy, as should Section 1 and the Related Guidance links.
Note: All Guidance from the ICO should be considered “Live Documentation” and regularly checked until all Codes of Practice and Guidance are issued. Working Party 29 known as WP29 is a representative body from each of the EU member states who have developed and worked on the Act. WP29 still sits and meets in the European Parliament until all of the complexities of the Act have been clarified and amended into law.
Lawful Bases
After due consideration, this organisation has determined that the following Lawful Bases are used in the collection of data.
[INSERT HERE YOUR LAWFUL BASES]
Data Protection Principles
The Act sets out 6 principles that must be adhered to when processing data
Please refer to the Related Guidance links for further information
The GDPR sets out the following principles for which this organisation is responsible
and must meet. These require that personal data shall be:
Processed lawfully, fairly and in a transparent manner in relation to individuals
Be collected for specified, explicit and legitimate purposes, and not further processed in a manner that is incompatible with purposes, further processing for archiving purposes in the public interest, scientific or historical research purposes, or statistical purposes shall not be considered to be incompatible with the initial purposes
Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed.
Accurate and where necessary kept up to date, every reasonable step must be taken that personal data that is inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay.
Kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed. Personal data may be stored for longer purposes in so far as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to the appropriate technical and organisational measures required by the GDPR (the safeguards) to safeguard the rights and freedoms of individuals
Processed in a manner that ensures appropriate security of the personal data including protection against unauthorised or unlawful processing and accidental loss, destruction or damage, using appropriate technical or organisational measures.
“The controller shall be responsible for, and be able to demonstrate, compliance with the principles” Article 5 (2) GDPR
[INSERT HERE DATA CONTROLLER AND PROCESSOR WHERE REQUIRED]
Individual Rights
There are several changes here in particular the Right of Access concerning timescales and fees. These must be fully understood concerning anyone submitting a Subject Access request. Please refer to the related Guidance Link
The GDPR provides the following rights for individuals:
Right to be informed
Right of access
Right to rectification
Right to erasure
Right to restrict processing
Right to data portability
Right to object
Rights in relation to automated decision making and profiling
Each of the above rights has its own Best Practice Process which you will find here https://ico.org.uk/media/for-organisations/guide-to-the-general-data-protection-regulation-gdpr-1-0.pdf
Privacy Notices
This is a new requirement for data processing, it is an accessible information declaration that should set out clearly how we will gather, use handle, store and process personal data.
The Code uses the term “Privacy Notice” to describe all the privacy information that you make available or provide to individuals when you collect information about them. It is often argued that people’s expectations able personal data are changing, particularly through the use of social media, the use of mobile apps and the willingness of the public to share personal information via these platforms.
However, as an organisation, we are increasingly aware of the fragile trust which can be easily broken through data breaches and is therefore seeking transparency as a means of building trust and confidence with users of our services. It is the spirit of the Act that privacy, transparency and control become a given for users.
Being transparent by providing a privacy notice is an important part of fair processing. When planning a privacy notice, we need to consider the following:
What information is being collected?
Who is collecting it?
How is it collected?
Why is it being collected?
How will it be used?
Who will it be shared with?
What will be the effect of this on individuals concerned?
Is the intended use likely to cause individuals to object or complain?
The Privacy notice must be easily understood by users of the service and include all of the above, it must also be easily visible so in this organisation it will be displayed
[INSERT HERE e.g. Website, Service User Guide, Foyer, public office etc.]
[SEE EXAMPLE of Privacy Notice in Related Guidance]
Privacy and Electronic Communications Regulations (PECR)
This guide issued by the ICO covers specifically electronic marketing messages i.e. phone, fax, email or text, and includes the use of cookies. It introduces specific roles on the above keeping such communication services secure and user’s privacy in regard to traffic and location data, itemised billing, line identification and directory listings
The Data Protection Act 2018 still applies if you are processing personal data. The PECR sets out some extra rules for electronic communications and please be mindful of electronic schedule systems which will also come under PECR
[INSERT HERE WHERE APPLICABLE TO YOUR ORGANISATION]
Data Protection By Design
This organisation has a general obligation to implement appropriate technical and organisational measures to demonstrate that we have considered the principles of data protection in our processing activities.
Any new systems of work or changes to our operational processes will involve consideration of how by default we as an organisation will have the necessary safeguards in place to prevent personal data from being disclosed in breach of the law.
Privacy Impact Assessment
It will be assessed whether a Privacy Impact Assessment is required, including assessing whether there is a high risk to people’s data rights and taking into account the requirements of the Data Protection legislation.
A Privacy Impact Assessment may be required when the processing could result in a high risk to the rights and freedoms of individuals.
A privacy Impact Assessment will include:
Identification of data
Evaluate the risks or breach
Assess the impact – the individual and organisation
Devise measures to mitigate risks
Monitor review and update
The Data Controller is responsible for identifying when a Privacy Impact Assessment might be required.
Reporting Breaches
The designated data lead or data controller will assess whether there is a risk to people’s data rights and freedoms and if there is, they will notify the ICO.
In the event where personal data has been breached the designated data lead or data controller must ensure that the Data Breach Plan is followed.
Breaches must be reported to the ICO within 72 hours of their discovery even if the nature of the breach is not yet fully known.
All persons affected by the breach should be notified as soon as possible after the breach has been identified. Support and advice should be provided where there is a risk present due to the breach.
If there has been a deliberate breach by staff, then the company’s disciplinary processes will be invoked which could include treating the alleged breach up to and including an allegation of gross misconduct. Deliberate or malicious breaches could result in legal proceedings and prosecution. See Appendix.
National Data Opt-Out
Under the national data opt-out planned to be implemented in April 2022, everyone who uses publicly-funded health and/or care services can stop health and care organisations from sharing their “confidential patient information” with other organisations if it is not about managing or delivering their care. For example, if this information is used for research or planning purposes.
It does not affect how we share information with other organisations to manage someone’s care and it won’t apply if we have explicit consent to share information or if the information is appropriately anonymised.
As a care provider, we do not share confidential patient information except to manage or deliver care. The new opt-out should not have a major impact on our service users, but it is always important to treat people’s confidential information sensitively. So, if someone has opted out of sharing their data, we will not use confidential patient information for planning or research purposes, to ensure we comply with opt-out legislation.
We are using the term “confidential patient information” as this is the term already used by the NHS where the opt-out is already in force. “Confidential patient information” applies to information about someone’s health or social care that can identify them. https://digital.nhs.uk/services/national-data-opt-out/compliance-with-the-national-data-opt-out
File Retention
The GDPR sets out Guidance on files and retention including archiving, specifically Health and Social Care personal data is generally exempt.
As a provider of services, file and retention guidelines are in place from our Regulator which includes CQC and the NHS as well as Local Authorities via the Service Specification within any contractual arrangements.
A periodic check of the Regulator’s Guidance should be part of the review of this policy
Compliance
To meet the requirements of the Act a thorough knowledge of the Guidance should be the priority for the Data Controller.
It is also important that the Act is placed in the context of other compliance requirements namely The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and all other lawful requirements such as Regulation 18 Staffing to name but one.
In recognition of the complexities of the Act, the ICO has set up an advice service for small organisations. https://ico.org.uk/global/contact-us/advice-service-for-small-organisations/
Changes to our Policy
This policy has been updated to include the changes being implemented by the General Data Protection Regulation (GDPR) which are in place on 25/5/2018. This policy will be reviewed tri-annually and updated when required.
Related Policies
Adult Safeguarding
Accessible Information and Communication
Access to Records and Files
CCTV
Confidentiality
Consent
Cyber Security
Duty of Candour
Record Keeping
Related Guidance
Smaller Organisations ICO:
https://ico.org.uk/for-organisations/business/
Guide to the General Data Protection Regulation (GDPR):
https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/
Records Management Code of Practice for Health and Social Care 2016:
ICO Data Protection Self-Assessment:
https://ico.org.uk/for-organisations/resources-and-support/data-protection-self-assessment/
Direct Marketing Guidance:
https://ico.org.uk/media/for-organisations/documents/1555/direct-marketing-guidance.pdf
Data Protection Fees Information Commissioner:
Example of Privacy Notice:
https://www.johnlewis.com/customer-services/shopping-with-us/privacy-notice
Guide to privacy and Electronic Communications Regulations (PECR):
https://ico.org.uk/for-organisations/guide-to-pecr/
Data Protection and the use of Criminal Offence Data for Employment and Education Purposes:
NHSX Covid-19 advice for social care https://www.nhsx.nhs.uk/information-governance/guidance/covid-19-information-governance-advice-social-care-sector/
Training Statement
All staff, during induction, are made aware of the organisation’s policies and procedures, all of which are used for training updates. All policies and procedures are reviewed and amended where necessary and staff are made aware of any changes. Observations are undertaken to check skills and competencies. Various methods of training are used including one to one, online, workbook, group meetings, individual supervisions and external courses are sourced as required.
Date Reviewed: October 2022
Person responsible for updating this policy:
Next Review Date: October 2023
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