Cameron Miranda
In the UK, patient data is protected by the Data Protection Act (DPA) 2018, which incorporates the EU General Data Protection Regulation (GDPR), and the Common Law Duty of Confidentiality (CLDC). The CLDC is underpinned by the notion that patients have the right to privacy and confidentiality and that their confidential information should be kept safe and secure. The DPA and GDPR establish guidelines for the collection and processing of personal data, emphasising the need for fairness, lawfulness, and transparency. While patients generally have the right to access their health records and expect privacy, there are exceptions, such as when sharing health records is mandated by law to ensure public safety or enhance healthcare service management. In such cases, health professionals may disclose information without patient consent, particularly when it is in the overriding public interest or when the patient lacks the capacity to consent. The UK's commitment to strengthening its cyber regulatory framework and improving data sharing within the NHS underscores the importance of safeguarding patient data and maintaining confidentiality.
| Characteristics | Values |
|---|---|
| Law | Data Protection Act (DPA) 2018, EU General Data Protection Regulation (GDPR), Common Law Duty of Confidentiality (CLDC), Children Act 1989, Health and Social Care Act 2012, Mental Health Act 1983, Cyber-security and Resilience Bill |
| Patient Rights | Privacy, confidentiality, access to health records, non-disclosure beyond treatment |
| Organisation Requirements | Data security, transparency, privacy notice, consent, valid lawful basis for data collection and processing |
| Exceptions | Overriding public interest, mandatory legal requirement, court order, patient incapacity, risk of harm, contagious diseases, abuse or neglect |
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What You'll Learn
Patients' right to privacy and confidentiality
In the UK, patients have a right to privacy and confidentiality, and to expect the NHS to keep their confidential information safe and secure. Patients also have the right to request that their confidential information is not used beyond their own treatment.
The legal frameworks covering how patient data must be handled and processed are the Data Protection Act (DPA) 2018, which brought the EU General Data Protection Regulation (GDPR) into law, and the Common Law Duty of Confidentiality (CLDC). The Data Security and Protection (DSP) Toolkit is an online self-assessment tool that allows organisations to measure their performance against the National Data Guardian's 10 data security standards. All organisations that access NHS patient data and systems must use this toolkit to ensure good data security and the correct handling of personal information.
Health and social care professionals involved in the direct care of a patient have a legal duty to share patient information where they consider it to be in the patient's best interests. Patient information should not be shared if a patient objects, unless it is in the "overriding public interest", such as if not sharing would put other staff members at risk of harm. There are certain circumstances in which a health professional is required by law to disclose medical information, regardless of a patient's consent. For example, a health professional must notify local authorities and the UK Health Security Agency about any person suspected of having certain contagious diseases.
In England and Wales, Section 251 of the NHS Act 2006 provides a temporary gateway to permit the use of patients' medical information without their consent. Such disclosures are permissive, not mandatory. In addition, there may be circumstances where consent cannot be obtained, and the common law duty of confidentiality may need to be set aside through a statutory basis or legal duty to disclose. For example, if a patient does not have the mental capacity to give or withhold consent, medical information may need to be shared with relatives, friends, and carers for health professionals to determine their best interests.
To meet the requirements of the CLDC, there must be a mandatory legal requirement or power that enables the CLDC to be set aside, such as a court order or an overriding public interest. Organisations must also be transparent about how they use and process data. This includes making sure patients know how their data is used and for what purposes it is shared.
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Data protection legislation
In the UK, the legal frameworks covering how patient data must be handled and processed are the Data Protection Act (DPA) 2018, the EU General Data Protection Regulation (GDPR), and the Common Law Duty of Confidentiality (CLDC). The DPA 2018 brought the EU GDPR into UK law.
The collection and processing of personal data must be fair, lawful, and transparent, with a valid lawful basis as defined under data protection legislation. The CLDC requirements must also be met. Under the GDPR, recording and processing health and care data must satisfy two conditions:
- The data subject must have given consent for their personal data to be processed.
- Processing is necessary for compliance with a legal obligation to which the controller is subject.
Consent must be voluntary and informed, with the individual needing to understand how their information is used and shared. The CLDC states that information about a person cannot be disclosed without their consent. However, there are exceptions, such as safeguarding concerns about a child. The UK GDPR sets out seven key rules, or data protection principles, that health and care professionals must follow.
The Information Commissioner's Office (ICO) regulates and enforces data protection laws. If the ICO identifies that an organisation has not complied with data protection legislation, it can impose fines of up to £17 million or 4% of global turnover for the most serious data breaches. The ICO provides guidance on data protection and workers' health information, including the need to ensure that workers are aware of what, why, and how much information is being collected when, for example, they are undergoing a medical test.
The ICO also provides an accountability framework to help organisations assess their accountability and compliance with data protection laws. Additionally, the Data Security and Protection (DSP) Toolkit is an online self-assessment tool that allows organisations to measure their performance against the National Data Guardian's ten data security standards. All organisations that access NHS patient data and systems must use this toolkit to ensure good data security and proper handling of personal information.
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Exceptions to confidentiality
Patients in the UK have a right to privacy and confidentiality and can expect the NHS to keep their information safe and secure. However, there are exceptions to confidentiality, and health and social care professionals have a legal duty to share patient information in certain circumstances.
One exception is when it is in the patient's best interests. For example, if a patient does not have the mental capacity to consent, medical information may be shared with relatives, friends, or carers to determine their best interests. Additionally, if a patient objects to their information being shared, it may still be disclosed if it is in the "overriding public interest". This includes situations where not sharing the information could put other staff members at risk of harm.
Another exception is when disclosure is required by law, such as reporting infectious diseases, providing health and social care services, preventing terrorism, or investigating road accidents. For instance, health professionals must notify local authorities and the UK Health Security Agency about suspected cases of contagious diseases. In some cases, information may be disclosed without patient consent to prevent or detect serious crimes, especially when there is a clear and imminent risk of harm.
In the context of medical research, confidentiality may be temporarily lifted if obtaining individual consent is impractical or would hinder the desired outcome. In such cases, researchers can apply through Section 251 of the National Health Service Act 2006 and its Regulations, The Health Service (Control of Patient Information) Regulation 2002.
It is important to note that the UK General Data Protection Regulation, Data Protection Act 2018, and the Crime and Disorder Act 1998 permit the disclosure of information to organisations like the police, local authorities, and social services in certain circumstances.
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Consent and confidentiality
In the UK, patients have a right to privacy and confidentiality and can expect the NHS to keep their information safe and secure. Patients also have the right to request that their confidential information is not used beyond their own treatment. Health and social care professionals have a legal duty to share patient information where they consider it to be in the patient's best interests. However, patient information should not be shared if a patient objects, unless it is in the "overriding public interest", such as if not sharing would put other staff members at risk of harm.
There are certain circumstances in which a health professional is required by law to disclose medical information, regardless of a patient's consent. For example, a health professional must notify local authorities and the UK Health Security Agency about any person suspected of having certain contagious diseases. In such cases, the common law duty of confidentiality may need to be set aside through a statutory basis or legal duty to disclose. This can be achieved through Section 251 of the National Health Service Act 2006 and its current regulations, The Health Service (Control of Patient Information) Regulation 2002.
Consent refers to the approval or agreement for something to happen after consideration. For consent to be legally valid, the individual must be informed, must have the capacity to make the decision in question, and must give consent voluntarily. This means individuals should know and understand how their information is used and shared, and they should be made aware of any changes in how their information is used and shared. When referring to consent in relation to individual care, the term "implied consent" is used, whereas "explicit consent" is used when referring to the use of confidential patient information for purposes beyond individual care, such as planning and research.
In England, Wales, and Northern Ireland, statutory arrangements are in place to consider whether disclosing personal information without consent for health and social care purposes would benefit patients or the public sufficiently to outweigh patients' right to privacy. This includes considering the potential harm or distress to the patient arising from the disclosure, the potential harm to trust in medical professionals, and the potential benefits to society arising from the release of the information.
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Cyber-security and the UK's regulatory framework
In the UK, patient data is protected by the Data Protection Act (DPA) 2018, which incorporates the EU General Data Protection Regulation (GDPR) into UK law, and the Common Law Duty of Confidentiality (CLDC). The CLDC is the legal principle that information shared in confidence cannot be disclosed without the data subject's consent. The UK government has committed to introducing a Cyber-security and Resilience Bill to strengthen the UK's existing cyber regulatory framework and enable more public sector organisations, including NHS trusts, to be included in the scope of regulations.
The UK's cyber regulatory framework includes the EU Cybersecurity Act, which establishes a framework for European cybersecurity certification of ICT products, services, and processes. The EU Cybersecurity Act is part of a broader strategy to enhance the financial system's overall cyber resilience against digital risks, including cybersecurity threats. The Digital Operational Resilience Act (DORA), another regulatory framework introduced by the European Union, aims to ensure that financial institutions and related entities can withstand, respond to, and recover from ICT-related disruptions and threats.
The UK Operational Resilience Framework, developed by the Bank of England, the Prudential Regulation Authority (PRA), and the Financial Conduct Authority (FCA), ensures that financial institutions and other regulated firms can withstand and recover from operational disruptions, including cyber incidents. The framework requires firms to identify critical business services, set impact tolerances, conduct regular scenario testing, integrate operational resilience into their overall risk management framework, develop robust internal and external communication strategies, and continuously improve their operational resilience strategies.
The UK government has also introduced new cyber laws to safeguard the UK economy and secure long-term growth. These laws aim to boost the protection of supply chains and critical national services, including IT service providers and suppliers, by requiring companies to report more incidents to help build a stronger picture of cyber threats and weaknesses in the country's online defences. The government has also created the Cyber Local programme to support the UK's rapidly growing cyber security industry, which has created 6,600 new jobs in the past year.
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Frequently asked questions
Yes, the UK has laws to protect patient data and ensure medical privacy. The legal frameworks covering how patient data is handled include the Data Protection Act (DPA) 2018, the EU General Data Protection Regulation (GDPR), and the Common Law Duty of Confidentiality (CLDC).
The Common Law Duty of Confidentiality is a legal principle that protects patient information and ensures that it is kept confidential and secure by healthcare professionals. It requires valid lawful consent for the collection and processing of patient data.
There are certain circumstances where medical professionals are legally required to disclose patient information without consent. This includes situations where not disclosing information would put others at risk of harm, such as in cases of infectious diseases, or when it is in the "'overriding public interest'".
Patients have the right to privacy and confidentiality under UK law. They can request that their information is not shared beyond their treatment and can access their health records. Patients should also be informed about how their data is used and shared, with transparent practices and privacy notices provided by healthcare organisations.
The Information Commissioner's Office (ICO) regulates and enforces data protection laws in the UK. If an organisation is found to be non-compliant, the ICO can impose fines of up to £17 million or 4% of global turnover for serious data breaches. The UK government is also committed to strengthening cyber regulatory frameworks to enhance data security.
