UK: Health Organisations Risk Painful Penalties If Patient Confidentiality Is Not Prioritised

Last Updated: 23 January 2012
Article by Erika Hayes

Healthcare organisations should view breaches of data protection principles as they do illness - prevention is better than cure! Prevention is especially desirable in relation to accidental loss or disclosure of data. Such breaches are, in effect, incurable and heavy monetary penalties or other enforcement measures could be administered by the authorities.

Data privacy is a major issue in the health sector. David Cameron's recent proposals to open up anonymised NHS patient data to the private life sciences industry for research purposes highlights the point. Many people are concerned that patient confidentiality will be compromised due to anonymity not being watertight where patient identities can be pieced together.

Others do not trust the Government or organisations involved to maintain adequate procedures to protect their data, particularly in light of breaches such as those described in this article.

In 2011, a number of healthcare organisations have been disciplined by the Information Commissioner's Office (ICO) due to accidental loss or disclosure of patient records, in breach of the Data Protection Act 1998 (DPA). The ICO is the UK authority responsible for enforcing compliance with the DPA, a statute designed to protect the personal data of individuals.

Security of personal information should be a core concern for those in the healthcare sector, which handles an abundance of sensitive personal data. Civil monetary penalties of up to £500,000 may be issued by the ICO for breaches of the DPA where security of personal data is compromised. The ICO continues to exert its power by issuing large penalties. In December 2011, Powys County Council was fined £130,000, the highest yet, for accidentally disclosing child protection case details to an unintended recipient. This follows penalties of, for example, £60,000, £80,000, £100,000 and £120,000 being levied on various public authorities (even for single breaches involving an element of human error) in the past 18 months.

Regulator spotlight on data security breaches in the Healthcare Sector

The ICO has indicated its desire to have powers to conduct compulsory audits in the health service which would give it further capability to clamp down on non-compliant organisations.
Data security has been described by the ICO as a "systemic problem" in the health service, where more needs to be done to keep patients' personal information secure. Last year alone, the ICO found multiple health organisations, including a large number of NHS organisations, to be in breach of the DPA.

Breaches included the following:

  • discharge letters about two patients' operations being faxed to the wrong recipient after the fax number was incorrectly entered;
  • a medical student on placement copying 87 hospital patients' data onto a personal, unencrypted memory stick for research purposes and subsequently losing it. The hospital had not provided data protection training, assuming the student received it at medical school;
  • patient medical information being found in public waste bins on two occasions, including where a staff member took records home and accidentally disposed of them;
  • loss of patient records, including sensitive personal data relating to operations, after a staff member took them home to update a training log;
  • a personal laptop being stolen from an ambulance service contractor's home, which contained contact details and transport requirements relating to over 2,500 patients;
  • accidental destruction of 10,000 archived records; and
  • diaries containing details of the care of over 200 midwifery patients being stolen from a nurse's car.

A hospital cleaner was recently charged after allegedly obtaining a patient's name from an electronic floor plan and contacting her through Facebook.

What you need to do
Taking steps to ensure your organisation is compliant with the eight principles of data protection in the DPA is a legal requirement where personal data is held. In particular, the seventh principle requires "appropriate technical and organisational measures" to be taken "against unauthorised or unlawful" use and "accidental loss or destruction of...personal data". The DPA also requires that in implementing these measures, the nature of the data to be protected and the harm that might result from a breach should be considered. As personal health information is recognised as "sensitive personal data" under the DPA, a higher risk of being fined arises where such information is not adequately protected.

Every organisation that handles patient information should be readily able to demonstrate that it has appropriate measures in place, such as staff training, laptop encryption, appropriate password protection, limited staff access to sensitive records, routine monitoring of compliance and a prohibition on staff accessing or storing work information on unsecured personal laptops or devices.

While the ICO often only requires a legal undertaking from an organisation to implement more effective DPA compliance measures instead of issuing a fine, it will look very unfavourably upon organisations that fall short in relation to data protection policies, systems, training and staff compliance. Failure to take appropriate steps to keep sensitive personal information secure appears to be a major factor in its attitude to enforcement. Human error may be forgiven in instances where best efforts have been made to implement processes and encourage compliance. However, where repeated breaches arise and lessons have not been learned, this has been demonstrated to lead to fines.

The ICO encourages a "built in" approach to data protection in healthcare, by training staff early on so that awareness and compliance becomes "second nature" so that policies and procedures are adhered to "on the ground".

In times when purse strings are tightened, risking valuable resources on monetary penalties is something any sensible organisation should seek to avoid. Being proactive will demonstrate to the ICO that data security is taken seriously.

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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