In this article, we examine a recent Hong Kong High Court
decision on Cathay Pacific's policy requiring consent by cabin
crew to disclosure of their medical records.
On 28 August 2008, the High Court in Hong Kong found for Cathay
in quashing decisions of (i) the Privacy Commissioner of Personal
Data and (ii) the Administrative Appeals Board in respect of
Cathay's policy requiring cabin crew to consent to disclosure
of private medical records.
In November 2005, Cathay instituted an Attendance Monitoring
Programme ("AMP"), to investigate why a small minority of
cabin crew members had levels or patterns of absence from work,
purportedly due to illness. Cathay sought medical and other
information as part of its obligation to ensure that cabin crew
members remain medically fit to discharge their duties (Directive
360 of the Civil Aviation Directive). The AMP stated that any cabin
crew member who did not co-operate and participate in the program
could be subject to disciplinary action.
The office of the privacy Commissioner for personal data (PCPD)
is an independent statutory body set up to oversee the enforcement
of the personal data (privacy) ordinance (cap. 486) (the
ordinance). In January 2007, as a result of anonymous complaints,
the PCPD carried out an investigation to determine whether
Cathay's requirements under its AMP contrived the requirements
of the ordinance, in particular requirements that the collection of
the personal data be necessary, adequate, but not excessive and
that the means of collection be lawful and fair in the
circumstances of the case.
The Commissioner, reporting in January 2007, accepted that
Cathay had not breached any of the data protection principles set
out in the ordinance, but found that the manner in which Cathay set
about collecting the data was not fair, though lawful. Cabin crew
were made to give consent under the threat, or for fear of a
disciplinary process for failure to co-operate. Cathay was ordered
to cease the practice and to destroy all the medical records it had
collected from employees under the AMP.
Cathay appealed to the administrative appeals Board (AAB)
against the Commissioner's decision. On 2 May 2008, the AAB
dismissed Cathay's appeal. In late May 2008, Cathay instituted
judicial review proceedings of both decisions before the High
Court. In judgment handed down on 28 August, the High Court quashed
the decisions both of the Commissioner and of the Board. The High
Court accepted that a data subject must be provided with all
necessary information in order to make an informed choice but the
Court was unable to accept that, in terms of the ordinance, a data
subject must have "complete freedom" of choice whether to
consent or not. The data protection principles themselves recognise
that there may be circumstances in which the disclosure of data may
properly be made compulsory. It has been provided that, if the
collection of data is obligatory, the person from whom the data is
to be collected must be informed of the consequences of a refusal
to supply the data. The judges found that Cathay, in informing all
cabin crew members of the possible consequence of failure to
disclose relevant medical records, was doing no more than meeting
the requirements of the ordinance and that such advice does not
thereby, of itself, constitute a threat or the exertion of undue
influence. The application for judicial review was accordingly
allowed, and the decisions of the Commissioner and the Board
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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