Information Governance & Data Protection Policy

Date of issue: September 2014

Contents

1. Introduction
2. Purpose and Principles of Data Protection
3. Scope
4. Definitions
5. GDPR – What has changed?
6. Duties and Responsibilities
7. Procedures for Maintaining Effective Information Governance
8. Process for maintaining confidentiality under the requirements of the Data Protection Act 2018 and GDPR 2018
9. Process for Monitoring Compliance with this policy
10. Related Policies and Procedures and references

Introduction

Clinical Partners Ltd. (the Company) recognises the importance of reliable information and the contribution it makes to the objective of the company which is to provide access to the highest quality mental health outpatient care. Clinical Partners is committed to operating robust arrangements for information governance to ensure that it uses data in a secure and effective way. The organisation is always mindful of the clients right to be assured of confidentiality and in a way that seeks always to minimise the risk of loss or misuse of personal identifiable data.

The Board of Clinical Partners recognises its responsibilities under the Data Protection Act 2018 and the GDPR, to maintain the security and confidentiality of all person identifiable data that it handles and has developed procedures to ensure that this occurs. Clinical Partners seeks to work in a transparent and accountable manner when handling information relating to individuals.

Purpose and Principles of Data Protection

The Information Governance (IG) Policy sets out the how the Company will ensure that information is used effectively, efficiently, securely and legally, and the steps that it will take to minimise loss/ breach of confidential data that it manages. The principles of GDPR are based on accountability. The organisation will ensure that all information relates to the following principles:

• It is lawful, fair and transparent
• It is collected and retained for a specific purpose
• The information is relevant and accurate
• Information is held securely
• Individuals’ rights are observed

Scope

This policy covers the use and management of information in all formats, (e.g. paper, electronic) including the security, availability, collection, processing, storage, communication and disposal of information.

The introduction of GDPR 2018 applies across the whole of the EU and affects any non-EU business offering services to EU citizens.

The policy applies to all employees and contractors working for or supplying services to or for the Company.

Definitions

The following terms will be used in this policy:

• Information Governance
  Relates to the way the organisation processes or handles information in a legal and secure manner
• Personal Data
  Information held by the organisation on individuals accessing their services
• Data Subject
  This is an individual who can be identified from information recorded about them and to whom the information relates
• Data Controller
  This is how the organisation controls and manages the information they hold
• Data Processor
  This is a third-party organisation that manages, processes and stores data on behalf of the organisation. An example would be outsourced payroll

Under GDPR there are new responsibilities for Processors which will include the Data Controller ensuring the Processor is compliant with GDPR in terms of diligence and data protection and if necessary auditing their processes.

GDPR – What has changed?

In May 2018 GDPR came into force and affects all European Countries or those countries who provide services to European citizens. The changes will affect:

• Consent
• Scope
• Accountability
• Children
• Rights
• Processors
• Breaches
• Fines

Consent

This involves organisations having clear messaging and a positive opt – in tick box rather than an assumption of opt in. Consent for information must be recorded without detriment and an individual can withdraw consent at any time.

Scope

As above

Accountability

The organisation must demonstrate compliance and record all processing activities. All actions should be documented both by the Data Controller and Processor.

Children

All communication with children must have child friendly messaging. There must be Guardian consent where applicable with age verification.

Rights

This relates to the individual’s right to be informed and have access requests. Individuals will have the right to have data erased (unless required by law) and the right to move or transfer data. No charges can be levied for providing personal data to that individual.

Data Processors

The Data Controller must ensure that any Data Processor is compliant with GDPR and this should be documented in any contractual agreement or terms along with specific responsibilities. Under GDPR there are new responsibilities for Processors.

The Data Processor must carry out GDPR diligence and data protection. The following should be considered when reviewing the lawfulness of processing:

• the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
• processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
• processing is necessary for compliance with a legal obligation to which the controller is subject;
• processing is necessary in order to protect the vital interests of the data subject or of another natural person;
• processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
• processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

The basis for the processing referred to in point (5.8.3) and (5.8.5) of paragraph 5.8 shall be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

Breaches and Fines

Any breaches need to be notified to the data subject and recorded as a minimum. There needs to be a notification to the regulatory body. Examples of notification requirement are accidental deletion or a lack of privacy where an individual’s data has been deliberately or otherwise seen by an unauthorised individual. Other breaches include errors in Data retention and Processing. 

Fines for any breach can be up to 4% of global turnover or €20m.

Duties and Responsibilities

Chief Executive Officer

The CEO has ultimate responsibility for all elements of governance, including information governance within the Company. The CEO will work with staff and the Governance and Risk Adviser, together with externally contracted experts to ensure that Clinical Partners takes all reasonable steps to develop and implement systems and processes that effectively protect confidential data about patients, staff and clinicians engaged by the Company.

Data Protection Officer

The CEO is the Data Protection Officer and can be contacted at Clinical Partners, Unit 6 Chaldicott Barns, Tokes Lane, Semley, SP7 9AW. Where necessary they will seek guidance from experts in Data Protection to ensure compliance with GDPR. As part of the compliance process there should be a programme of audit of data systems and policies.

This policy documents Clinical Partners’ approach to Data Protection and this provides internal guidance for staff. New staff will receive training in their Induction regarding compliance and Data Protection.

All Staff and Partners supplying clinical services via the Company

All staff working for the company and Partners engaged to provide patient services via the Company must work within this policy by remaining vigilant to information risks; actively risk assessing elements that they are responsible for, and for identifying and escalating any risks that are (via assessment or because of an incident) outside of their control to allow mitigation to an acceptable level.

Procedures for Maintaining Effective Information Governance

Meeting Legal Compliance

• The Company is registered for holding personal data as required under the Data Protection Act 2018 and GDPR 2018. Requirements for legal compliance are referred to above
• The Privacy Policy for Clinical Partners has been reviewed and rewritten considering the GDPR changes 2018. This can be accessed on the Clinical Partners website and all prospective users of Clinical Partners services are encouraged to read the Privacy policy and accept its terms
• All clinical staff and Clinical Partner employees have been informed of the data changes made by Clinical Partners in relation to the GDPR and how they may change, if at all, the way we communicate with clients
• The Company will ensure Digital compliance by undertaking regular analysis of data, documenting and actioning system changes
• Where Data Processors are involved the Company will ensure compliance through audit and contractual terms
• The Company regards all identifiable personal information relating to clients, partners, staff and contractors as confidential, and will ensure data is held in secure ways (e.g. locked filing cabinets for paper data and on secure servers (not on hard drives) of company computers)
• When data subject identifiable data is held by the company this will be treated as confidential and will only accessed on a ‘needs to know basis’ for the delivery of the services of the company or to undertake administrative processes necessary for the delivery of those services
• The Company will fully co-operate with any official audit[1] of its practices in relation to information security if required to by statutory agencies and/or purchasers of the Company’s services
• The Company regards all identifiable personal information relating to staff/contractors as confidential except where national policy on accountability and openness requires otherwise or where required for fraud investigation.
• Data subjects, for whom data is recorded, or held in paper format by the Company are entitled, in law, to request details of information held about them, have the information erased or transferred. The Company must respond under arrangements in the Data Protection Act and GDPR 2018

Information Security

The Company will maintain effective security arrangements for the access to and management of confidential information through

• Full HR checks prior to appointment of staff to the Company
• Privacy Policy for employees outlining the use and retention of their data by the Company
• a requirement for all staff and contracted clinicians working for the Company to be issued with and accept in writing a statement of personal responsibility in relation to confidentiality.
• rigid enforcement of systems for the use of individual access passwords to all electronic data/ materials held by the Company, with disciplinary action/loss of contractual rights (Clinical Partners) being taken in the event of a wilful breach of data security
• Clinical Partners uses an industry standard data management product Clinic Office version 5[2] which provides industry level security of personal information
• All records will be held electronically on an externally hosted web accessed, password controlled server, and no paper records will be made of personal details/financial details of our patients
• Financial management of patients invoices is handled via an externally hosted web based secure provider; ‘World Pay’
• When paper records are held e.g. complaints correspondence this will always be held in a locked filing cabinet and access will be limited on a ‘needs to know’ basis
• The Company will ensure all Data Processors used by them are compliant to GDPR 2018 through compliance audits.

References

1. In the case of an official audit e.g. by the Information Commissioner full co-operation will always be given. In the event of a potential supplier wishing to conduct their own Information Governance Audit this will be limited to an audit of systems and processes and no confidential data (data subject or financial data) will be subject to external inspection
2. www.pioneersoftware.co.uk
3. www.online.worldpay.com 

Rights of the data subject

You have the right to request:

• Access to the personal data we hold about you, free of charge; however we hold the right to refuse requests that are unfounded or excessive. (See 7.4)
• The correction of your personal data when incorrect, out of date or incomplete
• That we stop holding your personal data for direct marketing purposes
• That we stop any consent-based processing of your personal data after you withdraw consent

If you would like us to stop holding your data, have concerns about the data we hold, or would like it transferred to another medical practitioner – please email: patientexperience@clinical-partners.co.uk or call 0203 326 9160.

If we choose not to action your request we will explain the reasons for our refusal. You have the right to complain about this refusal to the supervisory authority (ICO).

To protect the confidentiality of your information, we will ask you to verify your identity before proceeding with any request you make. If you have asked someone else to submit a request on your behalf, we will ask them to prove they have your permission to act.

Right of access by data subject

The Data Protection Act 2018 (DPA) governs access to the health records of living people. The DPA is not confined to health records held by NHS bodies. It applies equally to the private health sector and to health professionals’ private practice records. It also applies to employers who hold information relating to the physical or mental health of their employees if the record has been made by, or on behalf of, a health professional in connection with the care of the employee. The Act applies to all of the UK. Subject to the conditions explained in this guidance, individuals have a right to apply for access to health records irrespective of when they were compiled.

These include:

• Competent adult patients
• Children and young people
  Legally, there is no automatic presumption of capacity for people under 16 in England, Wales and Northern Ireland, and those under that age must demonstrate they have sufficient understanding of what is proposed. However, children who are aged 12 or over are generally expected to have the capacity to give or withhold their consent to the release of information from their health records. Where, in the view of the appropriate health professional, the child is not capable of understanding the nature of the application for access, Clinical Partners as the holder of the record is entitled to refuse access
• Parents
  Parents may have access to their children’s records if this is not contrary to a competent child’s wishes. Where more than one person has parental responsibility, each may independently exercise rights of access. For a child who lives with his or her mother and whose father applies for access to the child’s records, there is no obligation to inform the child’s mother that access has been sought. Where a child has been formally adopted, the adoptive parents are the child’s legal parents and automatically acquire parental responsibility. In some circumstances people other than parents acquire parental responsibility, for example by the appointment of a guardian or on the order of a court. A local authority acquires parental responsibility (shared with the parents) while the child is the subject of a care or supervision order. If there is doubt about whether the person giving or withholding consent to access has parental responsibility, legal advice should be sought
• Individuals on behalf of adults who lack capacity
  When patients lack mental capacity, Clinical Partners are likely to need to share information with any individual authorised to make proxy decisions. Both the Mental Capacity Act in England and Wales and the Adults with Incapacity (Scotland) Act contain powers to nominate individuals to make health and welfare decisions on behalf of incapacitated adults. The Court of Protection in England and Wales, and the Sheriff’s Court in Scotland, can also appoint deputies to do so. This may entail giving access to relevant parts of the incapacitated person’s medical record, unless Clinical Partners can demonstrate that it would not be in the patient’s best interests. These individuals can also be asked to consent to requests for access to records from third parties. Where there are no nominated individuals, requests for access to information relating to incapacitated adults should be granted if it is in the best interests of the patient. In all cases, only relevant information will be provided
• Police
  If the police do not have a court order or warrant they may request voluntary disclosure of a patient’s health records under section 29 of the DPA. However, while Clinical Partners have the power to disclose the records to the police, there is no obligation to do so. In such cases Clinical Partners may only disclose information where the patient has given consent, or there is an overriding public interest. Disclosures in the public interest based on the common law are made where disclosure is essential to prevent a serious threat to public health, national security, the life of the individual or a third party, or to prevent or detect serious crime. This includes crimes such as murder, manslaughter, rape, treason, kidnapping and abuse of children or other vulnerable people. Serious harm to the security of the state or to public order and serious fraud will also fall into this category
• Solicitors
  Clinical Partners releasing information to solicitors acting for their patients will ensure that they have the patient’s written consent to disclosure and, where there is any doubt, confirm that the patient understands the nature and extent of the information disclosed.

Any data subject, or person authorised by the data subject may request copies of any personal data held about them and this will be supplied. Since GDPR 2018 no fee will be required. (See Appendix 1. 2 and 3 for procedures and templates).

The only exceptions to supplying documents is:

• if the holder of the record believes that disclosure could do harm to the individual or another person
• if the controller demonstrates that they are not able to identify the data subject.

In the case of dispute about disclosure the company will seek legal advice.

The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning them is being processed, and, where that is the case, access to the personal data and the following information:

• the purposes of the processing;
• the categories of personal data concerned;
• the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
• where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
• the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;
• the right to lodge a complaint with a supervisory authority;
• where the personal data is not collected from the data subject, any available information as to their source;
• the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

No personal data held by Clinical Partners is transferred outside United Kingdom.

Any client seeking access to clinical records not held by Clinical Partners will be asked to direct their request in writing to their clinician who will be responsible for responding to the request.

Right to erasure (right to be forgotten)

The data subject shall have the right to obtain from the controller the erasure of personal data concerning them without undue delay and the controller shall have the obligation to erase personal data without undue delay, unless required to be kept by other legislation, where one of the following grounds applies:

• the personal data is no longer necessary in relation to the purposes for which they were collected or otherwise processed;
• the data subject withdraws consent and where there is no other legal ground for the processing;
• the data subject objects to the processing and there are no overriding legitimate grounds for the processing;
• the personal data has been unlawfully processed;
• the personal data has to be erased for compliance with a legal obligation;
• the personal data has been collected in relation to the offer of information society services referred to in Article 8(1).

Responding to data related incidents

If an actual or potential breach of confidential information occurs the person identifying the incident must report it to the CEO via the Incident Reporting Procedure. The CEO will then be responsible for investigation and will call on experts as required to assist this investigation.

In the unlikely event that the Company suffers a security breach (data loss through theft, hacking or other means) the CEO will report the breach to the Information Commissioner as required under the Data Protection Act 2018 and GDPR 2018.

Process for maintaining confidentiality under the requirements of the Data Protection Act 2018 and GDPR 2018

Data Security and Disclosure

All staff/contractors working for the Company are responsible for ensuring that:

• They avoid holding person identifiable data as far as possible
• Any personal data which they hold is kept securely either electronically in a password protected system or in a locked cabinet
• Personal data is not disclosed either orally or in writing or otherwise to any unauthorised third party
• That they will take all reasonable efforts to ensure data is not disclosed accidentally

Retention of data

As the Company is concerned with the delivery of clinical services the Company will adopt data retention recommendations set out by the Department of Health, in accord with advisory times required to deal with legal disclosure.

• Person identifiable data held on clients will be held for a minimum of 8 years following the last contact (or lifetime in relation to cases related to adoption)
• Person identifiable data on staff (e.g. related to employment etc.) 5 years from termination of employment
• Person identifiable information on clinician’s engaged to provide services via contract (clinical partners) 21 years from the end of the contractual arrangement (in light of the clinical work being in mental health, the recommended retention period for all mental health records is 21 years)
• Person identifiable information on potential contractors/contractors professional information to be held for as long as there is a professional relationship between person/organisation and the Company. If a contractual agreement is entered into the information will be retained for 8 years after the conclusion of business
• Where data relates to adoption cases, client information needs to be kept for a lifetime. Clinicians are asked to send client records, via recorded delivery, to Clinical Partners Head Office as and when they stop working with Clinical Partners

Process for Monitoring Compliance with this policy

When considering compliance, the following need to be considered:

• Users Rights
• Security
• Training
• Policies
• Review

A rolling programme of audits will be established to ensure the robustness of local systems for the storage and access of confidential data. Results of these audits and any action plans will be included in the CEO’s report to the Board.

In the event there is an actual breach of confidentiality the CEO will report on the results of the investigation (if any) and the steps taken to minimise risk of recurrence. The effect of any changes will be monitored by analysis/ audits.

Effectively managing GDPR compliance will install trust and confidence in Clinical Partners clients and future clients.

The data subject has the right to lodge a complaint with Information Commissioners Office if the data subject considers that the processing of personal data relating to him or her infringes this Regulation.

Managing compliance will start with:

• Single point of contact – Data Protection Officer
• Audit data, systems and policies
• Document approach to data protection and ensure policies are in place
• Internal documentation and guidance for staff
• Training staff
• Maintain compliance and keep up to date

Related Policies and Procedures and references

• Clinical Partners Risk Management Strategy and Policy
• GDPR 2018
• Information Commissioners website: www.ico.org.uk
• Incident Reporting Policy

References

1. Data Protection Act 2018 and General Data Protection Regulations (GDPR)