[reposted from my LinkedIn account]
[Edited to add: the day following the upload of this post NHS England did an about turn, and published the report in full, saying “The NHS has taken the decision to publish the report in full in line with the wishes of the families and given the level of detail already in the public domain”]
NHS England is reported to be refusing, partly on data protection grounds, to publish the full independent review report into the care and treatment of Valdo Calocane prior to his manslaughter of three people in Nottingham in 2023.
The report is said to be over 200 pages long, and although a summary will be published, families of the victims are calling for the full report (which they only saw after pressure from their lawyers) to be published on public interest grounds, saying “we have grave concerns about the conduct of the NHS”.
So does data protection law prevent disclosure?
The report will clearly contain details of Calocane’s health, and as such it constitutes a special category of personal data, requiring a condition for processing from Article 9 of the UK GDPR. The most likely candidate would be Article 9(2)(g):
processing is necessary for reasons of substantial public interest, on the basis of domestic law….
The domestic law provisions referred to are contained in schedule 1 to the Data Protection Act 2018. And at first glance, it is not straightforward to identify a provision which would permit disclosure.
However, paragraph 11 potentially does. It deals with processing which is necessary for a “protective function”, must be carried without the consent of the data subject so as not to prejudice that protective function and which is necessary for reasons of substantial public interest. A “protective function” includes a function which is intended to protect members of the public against failures in services provided by a body or association.
Reports into homicides by patients in receipt of mental health care are commissioned by NHS England under the Serious Incident Framework “Supporting learning to prevent recurrence”, and this says that “publication of serious incident investigation reports and action plans is considered best practice”, although “reports should not contain confidential personal information unless…there is an overriding public interest”.
I’m not saying it’s a straightforward legal question, as to whether the report can be published, but an argument can be made that there is a substantial, overriding, public interest in disclosure in order that the public can be aware of any failings and understand what actions are being taken to address them. No doubt though that NHS England’s argument would be that this is achieved by publication of the summary report.
I imagine, in any case, that freedom of information requests will be made for the full report, so ultimately we may see the Information Commissioner’s Office, and maybe the courts, rule on this.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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