Select Committee on Delegated Powers and Regulatory Reform Twenty-Sixth Report

Annex 4


Letter from John Hutton MP, Minister of State at the Department of Health, to the Chairman


Disclosure of Information

I am writing to give a fuller explanation of the intended use of the disclosure of information powers in clause 113 and the new sections 26ZA(4) and 26ZB(4) of the Children Act 1989 (inserted by clause 114).

Under the Data Protection Act 1998, personal information about a data subject may be disclosed where the data subject has consented, or without consent where processing is necessary for the exercise of any functions conferred under any enactment. Disclosure of information would therefore be permissible under the 1998 Act in order to discharge the complaints procedures.

The Data Protection Act does not, however, override the common law obligation of confidence which provides that where information is conveyed on the understanding that it is confidential, anybody disclosing the information without authorisation may be liable to pay damages. There is an exception to this where information is disclosed in the public interest, and those persons considering disclosure of information would therefore have to conduct a balancing exercise to assess whether the public benefit outweighs the negative effect on the individual were the information to be disclosed. The purpose of overriding this common law obligation is to avoid the need for such a balancing exercise in relation to each piece of information that is disclosed to those who have a role in considering complaints, such as CHAI or CSCI, ensuring their access to all relevant information.

Take, for example, a situation where a local authority employee is accused of being abusive to an elderly person. The subject of the complaint denies the abuse and there are no witnesses. The local authority consider all of the information on their files, including the employee's personnel files which reveal that he had been disciplined for similar behaviour, and a report from a psychiatrist which states that, although the complainant presents as plausible, his evidence is extremely unreliable because he has mental health problems. The local authority decide to take no further action because they consider the complainant's version of events to be unreliable. The complainant wishes the complaint to be referred to the CSCI for consideration. It would be lawful for the local authority to pass the personnel file and the psychiatric report to CSCI under the Data Protection Act 1998 because processing would be necessary for the exercise of the function of considering the complaint. But, under the common law the consent of the employee and the complainant to disclosure would be necessary, or it would have to be shown that disclosure would be in the public interest. The local authority seek consent. The employee agrees for his personnel file to be disclosed, but the complainant refuses to allow the psychiatric report to be disclosed. Clearly this is information relevant to the determination of the complaint.

It would be difficult for local authority employees responsible for passing information to CSCI to conduct a balancing exercise for every piece of information relevant to a complaint to assess whether it should be disclosed, and given the time and resources involved this would inevitably delay the handling of complaints. In some cases the delay would cause additional frustration and distress for the complainant. These concerns would apply equally to complaints about the NHS and social services.

Furthermore, requesting consent to disclose information may, in some circumstances, alert the subject of the complaint to the fact that the complaint was being made before all the necessary information had been gathered, which may lead to destruction of, or tampering with, evidence. This links in to the modification of the subject information provisions of the Data Protection Act at clause 117 of the Bill.

6 October 2003

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