A tragic story about the suicide of a young man, and the apparent ridiculous citing of the Data Protection Act to explain why his mother was not warned.
A few years ago, Richard Thomas, the then Information Commissioner (ICO) launched a campaign to counter what were called “Data Protection Duck Outs”. It got some media attention, but I’ve always thought it suffered from sounding like the kind of phrase a “hip” teacher, or my parents, would have come up with. The ICO said
The Data Protection Act does not impose a blanket ban on the release of personal information. It requires a common sense approach, and should not be used as an excuse by those reluctant to take a balanced decision.
The bad-practice examples cited to illustrate the campaign were mostly light-hearted
In September 2008, Marks and Spencer wrongly blamed the Data Protection Act when they told a mother they could not discuss the delivery of her seven year old son’s Superman suit because it would infringe his data protection rights.
ICO view: Organisations should be cautious about releasing details of an order or account to a third party. However, in this case M&S was not being asked to release any personal information (only to confirm that a part of the suit was missing, and send it), so M&S could have spoken to the boy’s mother without breaching the Data Protection Act.
or
In 2005 it was reported that Catholic priests were no longer allowed to pray out loud for an ill person by name because they might be breaking data protection rules.
ICO view: Unless this sort of information was formally held on file it would not be covered by the Act. Even if it were on file, there would only be a breach if the person had specifically asked not to be mentioned or the church had reason to believe they would object.
Well, if the following story from thisiscornwall.co.uk is true, I have a current-day example, and I wouldn’t call it a “duck out” but an obscenity.
A man with a history of drug abuse killed himself in Camborne after being released from police custody, where he was detained under the Mental Health Act, a coroner has heard….Because of the Data Protection Act [his mother] did not know that her son had been detained and said she was powerless to help him.
The “duck out” campaign was launched because of misconceptions about the Data Protection Act 1998 (DPA). The DPA certainly has faults, but you can bet your house that when you hear someone blaming the DPA for not doing something, it is either because they have made a mistake, and are trying to cover themselves, or because they are ignorant of what the Act does and does not permit. The Cornwall story is unclear as to who allegedly cited the DPA for not informing this poor man’s mother, but, just to be clear, Schedule 3 of the Act specifically permits disclosure of sensitive personal data where
The processing is necessary…in order to protect the vital interests of the data subject or another person, in a case where…consent cannot be given by or on behalf of the data subject, or…the data controller cannot reasonably be expected to obtain the consent of the data subject.
This is before we get to considering other factors – for instance whether an appropriate adult was a requirement in this instance, and the fact that under section 56 of the Police and Criminal Evidence Act a person detained has the right to have someone informed. In which case there would have certainly have been other conditions permitting disclosure (thanks to @MentalHealthCop on twitter, for pointing this out, and for alerting me to the story in the first place).
In 2004 the Bichard Inquiry report into the Soham Murders was highly critical about the misunderstandings and misinterpretations of the DPA which led to Humberside Police deleting information about Ian Huntley, and which subsequently meant that when Cambridgeshire Police ran checks on him, when he applied for a school-caretaker position, nothing came up.
The term “duck-out” doesn’t begin to describe the enormity of the mistaken decision to delete Huntley’s data, nor, if this Cornwall story is accurate, does it begin to describe the enormity of the decision – whoever might have taken it (and the story is unclear) – not to tell Daniel Carrick’s mother her son was detained. The current ICO is very keen to clamp down on serious breaches of the DPA, but these are almost exclusively concerned with the loss of, or inadvertent disclosure of, personal data. Perhaps he should also be alive to stories like this, which suggest potential tragic misconceptions and misuse of the DPA, and which really should carry the term Data Protection Fuck-Ups.
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