Data Protection Act

The data subjects have given their consent to the processing. The data are to be treated as obtained fairly if they consist of information obtained from a person who is authorised by or under any enactment to supply it. Unless that may be aware that the data is unlikely to be disclosed within a period for such person. The data processed if necessary for compliance with any legal obligation to which the data controller is subject. This is an order to protect the vital interests of the data subject.

 This introduces the requirements that as a requisite of fair and lawful processing, personal data shall not be processed unless at least one of the conditions in Schedule 2 of the Act ‘the conditions for processing’ is met and in case of the processing of sensitive personal data (see paragraph 1.1.2 below) at least one of the conditions in Schedule 3 of the Act’ the conditions of processing sensitive data’ is also met.

Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

Meeting a Schedule 2 and Schedule 3 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the conditions.

1.1.1 Conditions for processing (Schedule 2 of the Act)

At least one of the following conditions must be met in the case of all processing of personal data (except where a relevant exemption applies):-

• The data subject has given his consent to the processing
• The processing is necessary -

1. For the performance of a contract to which the data subject is a party; or
2. For the taking of steps at the request of the data subject with a view to entering into a contract.

• The processing is necessary to comply with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
• The processing is necessary in order to protect the vital interests of the data subject.

For example, the disclosure of a data subject’s medical history to a hospital casualty department treating the data subject after a serious road accident.

                 

2. Conditions of processing sensitive personal data ( Schedule 3 of the Act)

The act defines categories of sensitive data namely personal data consisting of information as to;-

• the racial or ethnic origin of the data subject
• his political opinions
• whether he is member of trade union

At least one of the following conditions must be satisfied in addition to at least one of the conditions for processing in Schedule 2 (which apply to the processing of all personal data) before processing of sensitive personal data can comply with the First Principle: -

The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment.

It is important that compliance with the fair processing requirements will not of itself ensure fair processing.

3. The fair processing requirements (Schedule 1 Part II paragraph 1 to 4) Paragraph 1

Paragraph 1 provides that in deciding whether or not processing is fair, the way in which personal data are obtained will be considered.

This includes particular reference to whether an any person from whom the personal data are obtained is deceived or misled as to the purpose or purposes for which the personal data are to be processed. It may have a bearing on the validity of any consent given by the data subject to the processing which in turn any may remove the basis for processing which was being relied upon by the data controller.

4. Paragraph 2 and 3 – information to be provided to data subjects

Paragraph 2 and 3 provide that personal data are not to be treated as processed fairly. It should be noted that observance of these requirements will not ensure fair processing unfair. There is a general duty of fairness, which consists in part of the fair processing requirements of the Act.

2.1 Second Principle

“Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes”

Personal data for any purpose should be used or disclosed in any manner incompatible with that purpose. For example, data is held for the purpose of safeguarding national security for prevention of crime and taxation purposes.

Compliance with the second Principle cannot be established simply by notification of the purposes for which personal data are processed.

The commissioner takes a strict view of the concept of compatibility of processing of personal data.

Part II of Schedule I of the Act provides guidance in interpreting the Second Principle.  There are two means by which a data controller may specify the purpose or purposes for which the personal data are obtained, namely

1. in notice given by the data controller to the data subject in accordance with the fair processing requirements or,
2. The notification to the commissioner alone will not satisfy the fairness element of the First Principle.

3.1 Third Principle

“Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”.

Data controller should seek to identify the minimum amount of information that is required in order properly to fulfil their purpose and this will be a question of fact in each case. To hold additional information about certain individuals, such information should only be collected and recorded in those cases.

It is not acceptable to hold information on the basis that it might possibly be useful in the future without a view of how it will be used.  This is to be distinguished from holding information in the case of particular foreseeable contingency which may never occur, for example where an employer holds details of blood groups of employees engaged in hazardous occupations.

 Data controller should continually monitor compliance with this principle which has obvious with the Fourth and Fifth Principles. Changes in circumstances or failure to keep the information up to date may mean that the information that was originally adequate becomes inadequate. Keeping the data longer than necessary then may be both irrelevant and excessive.

4.1 Fourth Principle

“Personal Data shall be accurate and, where necessary, kept up to date”.

A data subject who discovers that inaccurate data is being held on him may request that it is corrected or deleted. This act provides guidance in interpreting this principle as follows:

The Principle is not to be taken as being contravened because of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or third party in case where :-

1. Taking in account of he purpose or purposes for which the data were obtained and further processed the data controller has taken reasonable steps to ensure the accuracy of the data and

2. If the data subject has notified the data controller of the data subject’s view that there inaccurate the data indicate that fact.

The information obtained from either the data subject or a third party they had done all they could reasonably have done to ensure the accuracy of the data at the time.

The second part of the principle which refers to keeping data up to date is qualified. Updating is only qualified where necessary.

5.1 Fifth Principle

“Personal data processed for any purpose or purposes shall not kept for longer than is necessary for that purpose or those purposes”.

The data controller will need to review their personal data regularly and to delete the information which is no longer required for their purposes.

If personal data have been recorded because of a relationship between the data controller and the data subject the need to keep the information should be considered when the relationship ceases to exist.

The act provides that personal data processed only for historical, statistical or research purposes in compliance with the conditions set out in section 33 may be kept indefinitely,

6.1 Sixth Principle

“Personal data shall be processed in accordance with the rights of data subject under this Act”

The act provides guidance in interpreting this Principle. A person will contravene this principle if but only if

• Failing to supply or comply information with notices given under the following provision or act. The right to prevent processing likely to cause damage or distress or for processing for the purposes of direct marketing or rights in relation to automatic decision taking.
• Failing to comply with right to require data controller to rectify, block, erase or destroy inaccurate or incomplete data or cease holding such data in a way with incompatible with data controller’s legitimate purpose.

Personal data cannot be used or disclosed in any manner which is incompatible with the purpose of which it is held.

7.1 Seventh Principle

“Appropriate technical and organizational measures shall be taken against unauthorized or lawful processing of personal data and against accidental loss or destruction of or damage to ‘personal data’”

The act gives some further guidance on matters which should be taken into account in deciding whether security measures are ‘appropriate’. These are as follow

• Taking in account the state of technological development at any time and the cost of implementing any measures, the measures must ensure a level of security appropriate to: harm that might result from a breach of security and the nature of the data to be protected.
• The data controller must take reasonable steps to ensure the reliability of staff having access to the personal data.

It is encouraged to consider the use of privacy enhancing techniques as part of their obligations under Seventh Principle. The Principle relates to the security of the processing as a whole and the measures to be taken by data controllers to provide security against any breaches of the Act rather than just breaches of security.

Appropriate technical and organisation measures shall be taken against unauthorised access or lawful processing of personal data and against accidental loss, disclosure or destruction of, damage to personal data. Organisation holding personal data should consider physical factors, such as controlling access to the data banks and taking precautions against fire or natural disaster to the building or room. Also consider trustworthiness of staff and have measures of staff breaches including security measures and password on computer.

8.1 Eighth Principles

“Personal data shall not be transferred to a country or territory outside the European Economic Area, unless that country or territory ensures an adequate level of protection of the rights and freedoms of data subjects in relation to the processing of personal data”.

The commissioners suggest ‘good practice approach’ to assessing adequacy. This principle refers to the guidance entitled, ‘International Transfers of Personal Data’. It provides that a level of protection is one which is adequate in all the circumstances of the case having regard in particular to: - the nature of the personal data, law in force in the country or territory if final destination of that information. Schedule 4 of the Act provides for circumstances in which the Eighth Principle does not apply to a transfer.

Personal data shall not be transferred to a country or territory outside the European economic area, unless that the country or territory ensures as adequate level protection for the rights and freedom of data subjects in relation to the processing of personal data. 

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1.2                 Question 2: Freedom of Information Act 2000

The Freedom of Information Act 2000 received Royal Assent on 30 November 2000 and was force across the public sector from January 2005.The Vehicle Inspectorate of public bodies to come under Freedom of Information (FOI) requirements.  From the required to supply any recorded information, which we hold, to the public on request some information which is exempt from disclosure and in certain cases we will need whether public interest overrides withholding exempted information.

This act creates the post of the Information commissioner (former Data Protection Commissioner) who will responsible for promoting good practice amongst all requirements. The public can apply to the Information Commissioner of public authority’s decisions if they are unhappy the way they handled the information under the Freedom of Information.

Until this comes into force the Government departments and agencies are working to the terms of Code of Practice Government Information and second edition 1997 of Code of Practices on Access to Government Information will continue to apply. The Information Commissioner is responsible for regulating and enforcing both the Freedom of Information Act and the Data Protection Act. The Code is a non-statutory scheme that requires Governments and authorities to make certain information available to the public and to release information specific requests. The Freedom of Information covers a wider range of public authorities and allows the publish copies of documents as well as to the information in them. The Code of Practice will be revoke force.

It establishes a general right of access to all types of recorded information, sets out exemptions from right and places a number of obligations on public authorities.  Subject to any person who makes a request for information must be informed whether we, as a public body, hold that information and if so, be supplied with it. ‘Public authorities’ are defined in the Act and include universities, further education colleges, maintained schools and nurseries. The Freedom of Information Act promotes greater openness and accountability across the public sector. Firstly it achieves the public authorities to make information available pro actively through a publication scheme. Secondly it requires them to deal with specific requests and to release information unless they can justify withholding information because exemption in the Act applies.

The public authorities in two ways hold the information:

• To adopt and maintain publication schemes, which should have the effect of improving the quality and amount of information routinely made available to the public.
• By creating the right to make the request of information (is effective in January 2005). Anyone from abroad, non-UK citizens, journalists, commercial organisations will have the right to ask the public authorities for any information they hold.

The Environmental Information Regulations when brought into force will provide a similar right of access in respect of environmental information.

The Data Protection Act 1998 will continue to provide access to information held about you as individuals.

1.2.1 What is a publication scheme?

This is a guide to the information which the authority is committed itself to publishing. The authority must publish with, and from time to time review, its scheme. The purpose is to ensure that the public authorities make a significant amount of information available, proactively without the need for a specific request. The Information Commissioners must first approve all publications. An independent body set to oversee and enforce both the Freedom of Information and the Data Protection Act.

1.2.2 What new rights will the public have?

Individuals already have a ‘subject access right’ under the Data Protection Act 1998 to access their own information held on computer and in some paper files.

The Freedom of Information Act will extend this right to allow access to all types of information they hold, whether personal or non- personal. Anybody will be able to make a request and will not need to refer to the Freedom of Information or the Data Protection Act although request must be in permanent form.  Applicants will usually have the right:

• To be told whether the information exists – known as the duty to confirm or deny
• To receive the information (and where possible in the manner requested)
• To receive reasons for a decision to withhold information

The public authority will have to respond to requests within 20 working days and may charge a fee. They may be able to withhold information because an exemption in the Act applies. In most cases exemptions the authority will have to go on to consider the public interest in disclosure.

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1.3        Question 3:  Privacy and Electronic Communication Regulation 2003 (EC Directives)

Privacy and Electronic Communication Regulation 2003 came into force on 11th December 2003. The Privacy and Electronic Communication Regulation 2003 is responsible for both enforcing both the 2003 and the 1999 regulations. The Privacy and Electronic Communication Regulation 2003 supersedes the Telecommunication (Data Protection and Privacy) Regulation 1999. They have two new rules for email marketing. You can also see what the regulation covers, your rights and making a complaint.

The Telecommunications Regulation 1999 imposed rules on the use of telecommunication services and gave effect to EU Directive 97/66/EC. One of the main aims of this directive was to ensure the

“Protection of fundamental rights and freedoms and in particular the right to privacy with respect to the processing of personal data in the telecommunications sector”

What does the regulation cover?

Telecommunication networks and service providers and individuals:

• Use of publicly available electronic communications services for direct marketing purposes
• Unsolicited direct marketing activity by telephone, by fax, by electronic mail (it means text/ video/ picture messaging and email) and by automated calling systems. To make a request reguarding making a complaint about sending of unsolicited direct marketing e.g. telephone calls, fax etc. is covered under the Privacy and Electronic Communication Regulation.

Telecommunication networks and service provider only:

• Location data and billing data
• Directories of subscribers
• Processing of electronic communication traffic data
• The security of telecommunication services and the use of cookie type devices
• Calling or connected line identification

The information commissioner can consider complaint about a public authority scheme (for example, failure to adopt a scheme or failure to publish information in accordance with the classes of the scheme).

 From 1st January 2005 people will by entitled to make requests for specific information and public authorities will have a duty to handle the request in line with the provisions of the Act.

The information commissioner can consider complaints about any aspect of the way in which request for information have been handled.

Under 1999 and 2003 regulation everyone has the right to ask the commissioners to exercise his enforcement functions if you believe and effected contravention of those regulations.

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1.4                Question 4: Privacy/ Security of Medical Records

Medical records are increasingly being stored in computers databases that allow for efficiencies in providing treatment and in the processing of clinical and financial services. Patient’s privacy is diminishing because of computerization of medical records; in particular it has increased the potential for misuse. Organisation that use and store medical records have had to establish security measures before they have access.

       Medical records are not protected a number of abuses can and do take place including:

• unauthorised secondary use of medical records,
• inaccuracies that are not corrected,
• discovery and disclosure of records by hackers and commercial vendors
• use of medical records by employers for employment decision, and
• Revelation of medical records by employees of insurance companies, who may be among our neighbours and who not have training.

In many places invasion of privacy by the unreasonable publicity given to the private a fact of a person’s life is actionable.    

He debate regarding the privacy of medical records has been sharpened by several long-term trends. There is intense pressure to contain costs of medical treatment by patients, private insurers and employer health plans. Computerisation on medical records can significant savings but with this comes with increased opportunities for disturbing disclosures. Much of the current privacy protection was based on paper records which are now being replaced on to computer files; the laws that were adequate for papers records are often inadequate to provide protection for computerised files. Computerised records are much more amenable to abuse on a much larger scale. Snoopy employees and others with access to medical files is much less exposure detention through a computer. The general recognition the legal protection for the privacy of medical records is inadequate and disorganised.

 Many patients’ lives are ruined on the growing disregard for confidentiality. The records contain most exclusive intimate and embarrassing secrets and always being passed around without their consent. Many health authorities, local councils, universities, drug companies and medical schools being given access to confidential data.

Medical records are also sent to researchers to compile disease registers and widely distributed outside NHS groups who conduct financial and clinical audits.

Pharmaceutical companies and medical researchers are regularly given medical records including names. For example medical histories of everyone living in Oxford are used without their knowledge by Oxford University for research. Names are removed but patients groups claim individuals are identifiable through postcodes.

 Over 50 million people medical information will be put on a new national NHS database whether those affected give their consent or not. The design of the system is expected to cost £2.3 billion. The 600 page set is issued to IT suppliers and can be seen by computer weekly which is clear that no one can opt out of the system.

The benefit is instant access to everyone’s records on a single “data spine” will be huge. The department of health says it will eliminate the problems of lost or missing records. Some patients do not want records stored electronically even on the existing systems. The option will not be open when the new Integrated Care Record System comes into operation. It could lead to growing abuse and it is unethical for so many people to have access to this information.

Rights of access are individual rights and responses to request case, balancing the effect on the individual against the effort required on the part of the data controller.

The input of information contained is the data of patients and the process is when it is all stored and builds it contained the output of all patients’ information in a system.

Having all the personal information on a system it is easy to maintain. Section 68 Health and Social Act 2001 allows the authorities to pass medical records which identify individuals without their consent.

Information from your medical records may influence your credit, admission to educational institutions, and employment. It can affect health insurance. Giving access to all your personal details about your life may mean a loss of dignity and autonomy.

Patients should have full access to all their medical records. No record should be kept secret. I believe record keepers should be required to notify patients that they maintain records.  Patients should be able to correct or remove any inaccurate, irrelevant or out of date information. Medical records should be protected by the best available physical and electronic security and in storage or transit which is encrypted.  Audit trails should track each access to individual’s files.

Digital information is well popular to everyone these days.  Almost daily we hear about network computer break ins by putting personal information is also at a high risk of exposing highly private and sensitive information to outsiders and new threats can arise because of the technologies of digital information. Access to this information must be controlled because disclosure can harm us causing social embarrassment or prejudice or an affect our insurability or limit our ability to get and hold a job. Such damage can (and does) occur no matter whether our records are on paper or electronic form.

Privacy, Confidentiality and Security are three main concepts of protecting information.  Privacy is the right and desire of a person to disclosure of information. Confidentiality conditions and limits on who may use the information or released further. Security is a collection of policies, procedures and safeguards that help maintain systems and control access to their contents.

 The Sunday Times reported in Nov 1995 that the contents of anyone’s (electronic) medical records in Great Britain could be purchased on the street for £200. The table below shows three general classes of technological interventions to improve systems security: deterrents, obstacles, and systems management precautions.

Table 1: Summary of technologies applicable to information systems management

Table 2: Disclosure threats to security technologies

Table 2 above shows the disclosures of threats to available tools. The threats of medical records on information can cause.

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Security and privacy of medical records is a ‘people’s problem’. Technology can ensure that the personnel access information have a right and need to know, and that information gets from one place to another accurately and securely. Technology can do very little to ensure the person receiving the information will handle it according to confidentiality standards. It depends on ethics and an affective supervisory and legal structure that provide sanctions against detected misuse. In the real world information systems will always be vulnerable.

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Conclusion

Everybody should be entitled to keep their private business and information to themselves unless they give their consent.

Most major advances in technology also entail unintended consequences. Computerised records have enabled healthcare providers to efficiently gather and evaluate medical information via modern database and database enabled technologies the potential misuse of this information has also increased. The principle for fair use of information has been agreed upon for at least 25 years. The most fundamental principles of fair use of information are that no secondary use of medical information should take place unless authorised by the patient.1

Medical records on computers security art in various countries but of the complex interplay between human, political, technical aspects.

Technology can be a great help for professionals in the interest of their patients but several occasions absolute guarantees of confidentiality are difficult to assure once the information is in the system. All patients have a right to be treated justly.

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Bibliography

I used a variety of sources gathered from libraries, internet, current and previous newspapers and articles.

Question One:

Title:                                Personal Computing for Business; Financial Times 

Authors name:                        Knight, J

Year of Publication:                1995

Place of publication:                Pitman Publishing

Date of access:                10/03/2004 (Pages 241-243)

Title:                                Business information systems and strategies 

Authors name:                        Cashmore, C. & Lyall, R.,

Year of Publication:                1991

Place of publication:                Prentice Hall Europe

Date of access:                10/3/2004 (pages 172, 237)                        

                

Title:                                GNVQ Advanced Leisure and Tourism 

Authors name:                        Trigg, P

Year of Publication:                1996

Place of publication:                Butterworth - Heinemann

Date of access:                15/3/2004 (pages 293-4, 332-3)

Title:                                Business Studies GNVQ Advanced Level 

Authors name:                        Fardon, M

Year of Publication:                1993

Place of publication:                Osborne books

Date of access:                15/03/2004 (pages 73)

Title:                                Business Level 2 

Authors name:                        Carysforth, C & Rawlinson, M & Neild, and M

Year of Publication:                1993

Place of publication:                Heinemann

Date of access:                15/03/2004 (pages 461)

Title:                                Business Studies, 2nd Edition 

Authors name:                        Chambers, I & Gray D

Year of Publication:                1999

Place of publication:                Causeway Press Ltd

Date of access:                15/03/2004 (pages 697)

Title:                                Advanced Vocational Travel and Tourism 

Authors name:                        Outhart, T

Year of Publication:                2000

Place of publication:                Harper Collins

Date of access:                15/03/2004 (pages 306-7)

Title:        The Complete A-Z Business Studies Handbook, 3rd Edition 

Authors name:                        Line, Marcouse & Martin

Year of Publication:                2000

Place of publication:                Hodder & Stoughton

Date of access:                15/03/2004 (pages 63)

Title:                                A Glossary of Computing Terms, 9th Edition  

Authors name:                        The British Computer Society

Year of Publication:                1998

Place of publication:                Pearson Education Ltd

Date of access:                15/03/2004 (pages 100-1)

Title:                                Data Protection Act 1998

Date of access:                24/02/2004

Website:                      

Title:                                The Data Protection Act 1998 Principles

Date of access:                02/03/2004

Website:                      ...

Title:                                Schedule 2 

Date of access:                02/03/2004

Website:                      

Title:                                Data Protection Services

Date of access:                13/03/2004

Website:                       

Question Two:

Title:                                Your information rights

Date of access:                02/03/2004

Website:                       

Title:                                Freedom of Information Act 2000

Date of access:                02/03/2004

Website:                      

Title:                                Freedom of Information Act 2000

Date of access:                March 2003

Website:                             

Title:                                Freedom of Information Act 2000

Date of access:                02/03/2004

Website:                             

Title:                                Freedom of Information Act 2000

Date of access:                02/03/2004

Website:                             

Question Three:

Title:        The Directive on Privacy and Electronic Communication (2002/58/EC)

Authors name:        Phil Jones

Year of Publication:        June 2003

Date of access:                02/03/2004

Website:                             

Title:        The Directive on Privacy and Electronic Communication (2002/58/EC)

Date of access:                02/03/2004

Website:                            

Title:        Privacy and Electronic Communication 

Date of access:                02/03/2004

Website:                             

Title:        What the regulation covers

Date of access:                02/03/2004

Website:                             

Question Four:

Title:                                Privacy of Medical Records: it Implications of HIPAA

Authors name:                        Baumer, D

Year of Publication:                2000

Date of access:                19/4/2004 (pages 40-47)

Title:        The observer, ‘Lives ruined as NHS leaks patients notes’ 

Authors name:                        Anthony Browne

Year of Publication:                Sunday June 25 2000

Date of access:                19/4/2004

Title:                                Times online ‘Patient records go on database’

Authors name:                        Nigel Hawkes

Year of Publication:                July 21 2003

Date of access:                19/4/2004

Website:                         

Title:        ‘Subject Access and Medical records: fees for access’ Data Protection Act 1998

Authors name:                        Compliance advice

Date of access:                19/4/2004

Website:                        

 Title:                                Consumers Advice to safeguard your medical records,

Date of access:                19/4/2004

Website:                        

Title:                                ‘Privacy, information Technology, and Health Care’

Authors name:                        Thomas C.Rindfleisch

Year of Publication:                August 1997/Vol. 40, No.8

Date of access:                19/4/2004 (Includes Table 1& 2)

Website:                        

Title:                 Personal Medical Information, Security, Engineering and Ethics

Authors name:                        Computer Security Group

Year of Publication:                1995-99

Date of access:                19/4/2004

Website:                         

 Title:         The Nursing Specialist Group ‘Private worries: public concerns’

Authors name:                        Andrew Wall

Year of Publication:                March 1997

Date of access:                19/4/2004

Website:                           

Title:         CRS Report for Congress ‘A brief summary of the Medical Privacy Rule’

Authors name:                        Gina, Marie, Stevens

Year of Publication:                Feb 14th, 2003

Date of access:                19/4/2004

Title:         People in our Software

Authors name:        John Richards & Jim Christensen, IBM Thomas J. Watson Research Centre

Year of Publication:                Feb 2004 – Vol.1, No 10

Date of access:                19/4/2004

From:                                 Development

Title:        Social translucence: An approach to designing systems that mesh with social processes.

        Transactions on Computer-Human Interaction 7

Authors name:        Erickson, T and Kellogg W.A

Year of Publication:                March 2000

Date of access:                26/04/2004 Pages 59-83                         

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