Fitness to Practise: Confidentiality and Data Protection

Health and care professionals have a statutory and regulatory duty to treat information about service users as confidential and failure may result in impaired fitness to practise.

What is Fit to Practise?

Generally speaking, a health and care professional is fit to practise if they have the training, skills, knowledge, character and health to do their job safely and effectively. Where a regulator has concerns about a health and care professional’s fitness to practise, they can take action, including suspending or removing the health and care professional from practice.

Confidentiality and Data Protection

Health and care professionals have a statutory and regulatory duty to treat information about service users as confidential.  Individual health and care regulators have their own set of particular regulatory requirements, but in essence, Health and care professional must:

  • treat information about service users as confidential; and
  • keep records secure by protecting them from loss, damage or inappropriate access.

Data Protection – Regulatory

Health and care professionals must adhere to their regulator’s guidance and standards.  These standards, generally, require health and care professionals to treat information about service users as confidential, obtain consent and be open and honest when things go wrong.

Whilst standards may differ between individual regulators, generally speaking Health and care professionals should:

  • take all reasonable steps to keep information about service users safe;
  • make sure you have the service user’s consent if you are passing on their information (unless
    there are good reasons not to, for example, it is necessary to protect public safety or prevent
    harm to other people);
  • get express consent, in writing, if you are using identifiable information for reasons which are
    not related to providing care, treatment or other services for them;
  • only disclose identifiable information if it is necessary, and, when it is, only disclose the minimum amount necessary;
  • tell service users when you have disclosed their information (if this is practical and possible);
  • keep appropriate records of disclosure;
  • keep up to date with relevant law and good practice;
  • if appropriate, ask for advice from colleagues, professional bodies, unions, legal professionals
    or us; and
  • make your own informed decisions about disclosure and be able to justify them.

Data Protection – Statutory

The relevant legislation is the Data Protection Act 2018 and the General Data Protection Regulation (GDPR).  These set clear legal duties and responsibilities to protect the personal data of patients and service users.

Broadly speaking, there is a legal responsibility set by law, which state that professionals have a duty to protect the confidentiality of the people they have a professional relationship with. The law also impose duties with regard to how you should keep, handle and disclose information.

Health and care professionals may find it useful to refer to the Information Commissioner’s website.

Fitness to Practise

Failure to treat personal information about patients and service users with the required level of protection and sensitivity is likely lead to a fitness to practise investigation and possible action by your regulator.

Recently, for example, the General Chiropractic Council published details of regulatory action it took in relation to data protection and confidentiality as part of its fitness to practise learning series.

In these cases, a patient complained that they had been able to see another patient’s confidential information on a computer screen and in another case, a patient complained to the GCC that upon a Subject Access Request for their records, a registrant did not provide the requested documents in a complete and timely manner and failed to communicate information accurately to the patient when issues arose.

Fitness to Practise Barristers

Expert legal advice and representation will ensure your response and evidence are clear, relevant and submitted in a timely manner.  Expert legal advice will also help you set the right strategy to ensure you are well-placed to respond to your regulator, for example, remediation training or coaching to help you understand the process, the importance of insight and remediation and how to present this effectively.

Kings View Chambers have a proven track record of success, acting for a range of health and care professionals facing fitness to practise issues.  You can read more about our case success, our excellent reviews and contact us for a free, no obligation case assessment.

Further Reading

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.

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