Welfare Disclosures and Data Law

27th March 2020 Media Law

Many organisations and charities offer vital help to people facing difficult personal situations. 

People are prepared to seek help regarding hugely sensitive issues on the proviso that their circumstances will be kept confidential. But what happens if the information they disclose causes grave concerns about the individual’s welfare?

A recent legal case considered these very issues.

In 2016, the Manchester charity LGBT Foundation Ltd was providing counselling services to Mr Scott. Mr Scott completed a self-referral form disclosing information about a suicide attempt, self-harm and substance abuse. He also provided his GP’s details on the form. Importantly, the form clearly stated that the charity would break confidentiality without consent if they had serious concerns about an individual’s welfare.

Following assessment by a wellbeing officer, Mr Scott gave further details of substance use, self-harm and suicidal thoughts.

The LGBT Foundation assessed Mr Scott as “being a significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr Scott with the services he sought from the LGBT Foundation because of ongoing drug use.” This led to information being disclosed to Mr Scott’s GP, because of concerns for his welfare.

Mr Scott complained and issued a legal claim.

Mr Scott claimed that the disclosure made to his GP by LGBT Foundation Ltd was “in violation of the Data Protection Act 1998, that it amounted to a breach of confidence at common law, and that it was contrary to the Human Rights Act 1998.” He sought damages in excess of £1.8 million for distress and financial loss.

The Court rejected the claim. Mr Justice Saini made the decision to grant a summary judgment and strike out all legal causes of action.

In regards to the claim made under the Data Protection Act 1998 (DPA98), it was found that the disclosure made by LGBT Foundation to Mr Scott’s GP did not amount to processing or recording of “personal data” in either electronic or manual form. This is because the relevant information was provided to LGBT Foundation verbally only and the DPA98 did not apply “to purely verbal communications”. The Claimant’s claim that the information had been “stored” in the wellbeing officer’s mind for future recording or filing was rejected. It is important to note that the decision seemed to rely solely on the verbal communication provided by Mr Scott, rather than the information provided by way of the referral form.

Mr Scott’s breach of confidence claim was also struck out. Mr Justice Saini recalled that although a duty of confidence was owed to Mr Scott, there had always been conditions attached to it. The charity had made it clear from the outset that information would be disclosed to his GP if they felt this necessary in order to safeguard him. It was considered reasonable for the wellbeing officer to categorise Mr Scott as an imminent risk and therefore take this course of action.

Mr Justice Saini moved on to address the claim made under the Human Rights Act 1998. Mr Scott had argued that the disclosure was a violation of his Article 8 ECHR privacy rights and that, as a body carrying out a public function, LGBT Foundation should not have made the disclosure. However, it was found that Mr Scott had “no reasonable expectation of privacy that precluded LGBT Foundation from making the limited Disclosure, for similar reasons set out in the claim for breach of confidence.” The HRA 1998 claim was also brought outside the one year limitation period.

Scott v LGBT Foundation provides an authority for applying the DPA98 to verbal communications. It clarifies that the DPA98 cannot be applied to oral communications and also confirms that disclosure to third parties can be justified when safeguarding issues arise. It seems very likely that the same legal rationale would be applied under the Data Protection Act 2018 and GDPR.

JMW are experts in claims relating to breach of confidence, privacy and data protection issues. If you would like our help, please call us today on 0345 872 6666.

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Jemma Fleetwood is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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