UK: ICO Sounds Further Warning In Relation To DPA Compliance In The NHS

Last Updated: 7 March 2013
Article by James Cassidy

The Information Commissioner’s Office (ICO) has released the findings of its Data Protection audits which took place between February 2010 and July 2012. The audit outcomes have been published on a sector by sector basis, and the findings in relation to compliance within the NHS make interesting reading.

The ICO sets out examples of good and poor practice identified in the audit of 15 NHS Hospitals and Trusts. ICO audits are currently not compulsory and accordingly all NHS organisations may wish to review the Audit Report findings to determine the types of issues which the ICO considers important in terms of Data Protection Act (DPA) compliance.

Whilst there is an acknowledgement from the ICO that compliance with the DPA is improving, the NHS has been singled out as a cause for concern. The outcome of the audits, together with the increased enforcement powers under the DPA, give a clear indication that further work is required across the NHS to take steps to protect and safeguard personal data.

The NHS has, of course, recently been the focus of ICO enforcement action following data protection breaches:

  • The Central London Community Healthcare NHS Trust was fined £90,000 following a serious breach of the DPA. The breach first occurred in March 2011, after patient lists from the Pembridge Palliative Care Unit, intended for St John’s Hospice, were faxed to the wrong recipient. The individual informed the Trust in June that they had been receiving the patient lists – around 45 faxes over a three month period – but had shredded them. The patient lists contained sensitive personal data relating to 59 individuals, including medical diagnoses, information relating to their domestic situations and resuscitation instructions. It was found that the Trust failed to have sufficient checks in place to ensure that sensitive information sent by fax was delivered to the correct recipient. The Trust also failed to provide sufficient data protection guidance and training to the member of staff concerned.

  • The Brighton and Sussex University Hospitals NHS Trust was served with a Civil Monetary Penalty (CMP) of £325,000 following a serious breach of the DPA; the largest fine issued by the ICO since it was granted the power to issue CMPs in April 2010. It followed the discovery of highly sensitive personal data belonging to tens of thousands of patients and staff, including HIV and Genito Urinary Medicine patients, home addresses of staff, children’s reports and details of patients’ diagnoses and treatments held on hard drives sold on an internet auction site in October and November 2010. The breach occurred when an individual, tasked to destroy approximately 1,000 hard drives, removed at least 252 of them from secure storage.

The good…

The Audit Report confirms that there was evidence of good practice in relation to governance, training and awareness within NHS organisations. The ICO identified some very specific areas of good practice:

  • Transferable training logs for junior doctors working over various sites which gave DPA assurances

  • Security Incident Management systems

  • Overall accountability for incident management through the information governance framework

  • Relevant policies and procedures in place and available to staff

The bad…

Unsurprisingly, the ICO identified that the common weaknesses within the NHS relate to the security of personal data and the management of Subject Access Requests. The ICO identifies a number of steps which the NHS should take to further improve their DPA compliance:

  • Security encryption on all removable media and mobile devices

  • Key performance indicator results relating to DPA compliance communicated at board level

  • Password security procedures for all systems

  • Reviewing manual record and transportation policies

  • Strengthening Subject Access processes

The future…

Only one Trust out of the 15 was deemed to have a High Assurance rating. Trusts should therefore take the opportunity to review the findings of the Audit Report and consider whether any further steps or safeguards can be put in place. The Audit Report provides helpful guidance as to where Trusts should be in terms of complying with the DPA and highlights specific areas of both good and bad practice that Trusts may benchmark against.

The issues raised by the ICO provide practical steps which may incrementally improve the level of DPA compliance. The NHS will never be able to operate in a world where data is always secure, but given that the vast majority of information created on a daily basis by the NHS is personal data or sensitive personal data, the ICO expects that sophisticated safeguards will be in place to uphold data rights.

The ICO does not currently have the power to conduct a compulsory audit of an NHS organisation but has indicated previously they consider they should have this ability. In a press release last year, the ICO stated “something is clearly wrong when the regulator has to ask permission from the organisations causing us concern before we can audit their data protection practices. Helping the healthcare sector, local government and businesses to handle personal data better are top priorities, and yet we are powerless to get in there and find out what is really going on.”

The NHS is however able to request an audit from the ICO, and Trusts may wish to take this opportunity to rigorously examine and test its data protection safeguards to locate shortfalls and potential weaknesses in the systems. It is clear that the ICO will continue to levy fines for serious breaches of the DPA, and any steps that can be taken by Trusts to identify and respond to potential DPA weaknesses will be beneficial in reducing risk.

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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