Healthcare Features
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The Information Commissioner’s Office is to consult on the UK’s first-ever code of practice on data sharing.
The watchdog has published today a draft statutory code setting out a model of good practice for public, private and third sector organisations. “It covers routine data sharing as well as one-off instances where a decision is made to release data to a third party,” it said.
The ICO explained that the code would apply to activities such as:
- a local authority disclosing personal data about its employees to an anti-fraud body
- a school passing information about under-performing children to a social services department
- the police passing information about the victim of a crime to a counselling charity
- a GP sending information about a patient to a hospital
- the police and immigration authorities exchanging information about individuals thought to be involved in serious crime
- two departments of a local authority exchanging information to promote one of the authority’s services
- two neighbouring health authorities sharing information about their employees for fraud prevention purposes
- a school providing information about pupils to a research organisation.
The code of practice covers a number of areas including what factors an organisation must take into account when coming to a decision about whether to share personal data, and the point at which individuals should be told about their data being shared.
It also addresses the security and staff training measures that must be put in place, the rights of the individual to access their personal data and when it is not acceptable to share personal data.
The code will not impose additional legal obligations and is not an authoritative statement of the law. However, it will be capable of being used in evidence in any legal proceedings, not just proceedings under the Data Protection Act.
The Information Commissioner, Christopher Graham said: “Under the right circumstances and for the right reasons, data sharing across and between organisations can play a crucial role in providing a better, more efficient service to customers in a range of sectors – both public and private. But citizens’ and consumers’ rights under the Data Protection Act must be respected.
“Organisations that don’t understand what can and cannot be done legally are as likely to disadvantage their clients through excessive caution as they are by carelessness. But when things go wrong this can cause serious harm. We want citizens and consumers to be able to benefit from the responsible sharing of information, confident that their personal data is being handled responsibly and securely.
Graham called on organisations holding personal data to comment on the draft code of practice, so that the ICO can ensure it is “robust and adaptable” and can be applied across the board.
A copy of the proposed code of practice can be downloaded here. The consultation lasts until 5 January 2011.
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The Equality and Human Rights Commission has produced a guide for public sector decision-makers, setting out what is expected of them and others to comply with equality duties when they implement savings after the Comprehensive Spending Review.
It warned that the duties "should remain a top priority, even in times of economic difficulty", adding that failure to meet the relevant duties may result in authorities being exposed to "costly, time-consuming and reputation-damaging legal challenges".
The Commission said it had designed the guide – which is aimed at government departments and public authorities at both national and local level – to help “put fairness and transparency at the heart of the difficult financial decisions ahead”.
The EHRC explained that the legislation required government departments and local authorities to have “due regard” to the need to eliminate discrimination and promote equality with regard to race, disability and gender as well as promote good relations, in particular to tackle prejudice and promote understanding.
It added that when this requirement is applied in practice, “it means that they must assess the equality impact of proposed changes to policies, procedures or practices, such as decisions which result from a desire to make savings”.
This could include decisions such as reorganisations and relocations, redundancies and service reductions programmes.
The guidance points out that the law:
- does not prevent government officials from making difficult decisions
- does not stop them from making decisions that may affect one group more than another, and
- simply requires that such decisions are made in a fair, transparent and accountable way, considering the needs and the rights of different members of the community.
It adds that where decisions are found to have a disproportionate impact on a particular group, authorities must consider what actions can be taken to avoid or mitigate the unfair impact.
Meeting the legal obligation to show “due regard” does not necessarily need to take the form of one document called an 'Equality Impact Assessment' (EIA), the guidance says, although the Commission recommends this as good practice.
“If an EIA is not adopted, there must be an alternative form of analysis which systematically assesses any adverse impact of change in policy, procedure or practice,” the Commission said.
The EHRC argued that the process is a positive opportunity for officials to ensure they take fair decisions in an open and transparent way which will stand up to external scrutiny.
The guidance recommends that decision-makers not only take into account legal obligations under equality legislation, but also those under the Human Rights Act 1998. It also says they should “look ahead to the upcoming changes as a result of the Equality Act 2010 that will extend the same protections to age, sexual orientation, pregnancy and maternity and religion and belief.”
The Commission added that the guidance should also be helpful to voluntary and community groups, trade unions and individuals in helping them hold decision-makers to account.
EHRC chief executive Helen Hughes said: “As we approach the Comprehensive Spending Review, we know all public bodies will be making difficult decisions. This legislation is not designed to prevent reductions in public expenditure.
“Its role, and the Commission's role as a regulator tasked with monitoring and enforcing the legislation, is to ensure that fairness and transparency are at the heart of decisions. And when decisions do have a disproportionate impact, policy makers think carefully about what they can do to mitigate it. Over the coming months, the Commission will be working hard to ensure those making the tough calls have the information and resources they need to do just that."
A copy of the guidance can be downloaded here.
Further reading: Be careful when you cut.
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Local authorities must be at the heart of healthcare commissioning, especially in “Cinderella services” for the vulnerable, the Local Government Association has argued after submitting its response to the government’s health White Paper.
The LGA claimed councils were ideally placed to take the pressure off GPs by ensuring vulnerable children, dementia sufferers, people with learning difficulties and the homeless get the services they need.
The association said town halls, not just doctors, should play a key role in commissioning services, particularly in those areas where they have most expertise. These areas include: mental health; health and wellbeing of homeless people; long-term conditions; drug and alcohol dependency; dementia services; services for children and young people; services for people with learning disabilities; HIV/AIDS services; carers’ services, older people’s services and free nursing care.
The LGA said its key messages included:
- Its strong support for the increased public health role for local government
- The need to create strong and focused health and wellbeing boards to provide effective local leadership and coordination of services for everyone. “These must be given a statutory footing and be seen as equal to GP consortia and the National Commissioning Board”
- The scrutiny of the National Commissioning Board, health and wellbeing boards and GP consortia was very important, as was the need for them to be locally accountable
- The need for urgent clarification on funding of patient and public involvement in 2011. Funding for Local Involvement Networks runs out in March, but the replacement Health Watch does not go live until April 2012, it pointed out.
Cllr David Rogers, chairman of the LGA’s community wellbeing board, said the government’s shake-up was an opportunity which – if handled properly with a clear allocation of roles and good communication between councils, GPs and NHS bodies – could be “a real shot in the arm for health”.
But he warned: “Councils need to be at the heart of commissioning, especially in the areas they have experience and expertise in like so-called ‘Cinderella services’ for the vulnerable. GPs are inexperienced here and there’s a real risk they may not see the incentive of commissioning services where success isn’t easy to measure, or might outsource commissioning for these groups, breaking a vital link between an individual’s health and social care services.
“Decisions on where to spend money and commission services need to be taken locally. Councils know their residents’ needs best and using available funding as they see fit will keep people healthier and reduce the burden on the health service.”
Rogers added that health and wellbeing is “much more than just doctors and nurses”. He said: “The foundations of local government in the 19th Century were in the need to beat typhoid, cholera, poverty and poor housing. The challenges may have changed but councils are still best placed to improve their residents’ health in many ways, whether it be promoting nutritious food and exercise, or helping people quit smoking or excessive drinking."
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Public bodies must take the Equality Act into account when making budget cuts, writes Stephen Hocking
After more than five years in the making, the Equality Act will finally come into force on Friday 1 October. However, in addition to the impact that the Act will have on public bodies as employers, it could easily have an even greater impact on the public sector when it comes to budget cuts.
Public bodies are under a lot of pressure to make significant cuts and to make them quickly. They might be thinking about the equalities impact on the workforce, but they need to get to grips with their public service obligations as set out in the Equality Act if they are to avoid legal challenges from the public. The Act requires public bodies to take account of equalities considerations in performing their public functions. They must consider any disproportionate impact on protected groups when making decisions, such as budget cuts.
While many of the provisions are essentially consolidations of existing obligations in separate pieces of legislation, such as the Race Relations Act, Sex Discrimination Act and Disability Discrimination Act, there are significant differences in terms of new definitions and enhanced protection for disabled people.
There is also the new Public Sector Equality Duty which is the expanded "due regard" duty which now applies to discrimination on the grounds of age, sexual orientation and religion and belief, as well as race, gender and disability. This extended duty will probably come into force in April 2011. Although this is six months away, this is the legal duty already most successfully used to challenge public bodies on equalities. It requires equalities considerations to be factored into policy-making and key decisions about budgets and services, as an integral part of business planning and management rather than an add-on or silo activity. Bodies will need to be factoring the expanded equalities considerations into their thinking well in advance of April, so that any decision or activity taking place after that date can be defended.
We have already seen some examples of the type of challenges we can expect - the Fawcett Society has demanded a Judicial Review of the whole budget as they believe that the budget impacts disproportionately on women; and the Equality and Human Rights Commission (EHRC) has written to all government departments, including the Treasury, asking for reassurance that they will comply with equality legislation when making decisions such as budget cuts.
The Equality Act is not something which can be put on the back burner for 6-12 months while public bodies deal with the other pressing issues which they face. Unions and others have already indicated that they will use these equality obligations to challenge decisions by public authorities to cut jobs, budgets and services where they feel that these cuts will impact particularly on groups protected by the legislation. The Equality Act provides many possibilities for challenging spending decisions which impact particularly on women, people with disabilities, particular ethnic groups or age groups.
Difficult decisions for public bodies have the potential to arouse strong feelings and claims could be brought as much for the publicity and political embarrassment factor as for any real prospect of intervention or enforcement. These legal challenges should be preventable though if public bodies ensure that they are fully informed and prepared.
Any cuts that are made will require careful analysis of the precise nature of any legal obligations and careful management of service users’ expectations.
Stephen Hocking is public law partner at Beachcroft