GDPR and Subject Access Requests

GDPR and Subject Access Requests

Our fifth blog from Karen Heaton of Data Protection 4 Business covers how to handle a request from a patient or customer for details of the information that you hold on them.

In our blog today, we look at a data subject’s right to access, a powerful tool for individuals who have concerns about what information organisations hold about them.  Unfortunately, it can also be used for litigious purposes and such a request should be taken very seriously within your organisation, so please read on!

A data subject, in other words, you or I, can request a free copy of all personal data relating to us that an organisation holds – in any format – paper files, digital, videos or voice records.  Ok, do I have your attention now?  Even for a small organisation, that can amount to a lot of data.

Oh, and you have one calendar month to respond.

So, what must you provide and what is exempt?  Well, let’s see…

What information must I provide?

You must provide the following long list of information in relation to the personal data being processed as well as the data itself:

  • the purposes of your processing
  • the categories of personal data concerned
  • the recipients or categories of recipient you disclose the personal data to
  • your retention period for storing the personal data or, where this is not possible, your criteria for determining how long you will store it
  • the existence of their right to request rectification, erasure or restriction or to object to such processing
  • information about the source of the data, where it was not obtained directly from the individual
  • the existence of automated decision-making (including profiling)
  • the safeguards you provide if you transfer personal data to a third country or international organisation
  • the right to lodge a complaint with the ICO or another supervisory authority

I have a question or two:  would you know where to find the data? Would you be able to respond to the other information points above regarding the data you hold?  This is not a simple task and can amount to an operational headache for many organisations.

What information can I withhold?

The most common type of data that should be withheld is data mentioning third parties (unless they have given consent for their data to be shared or it is reasonable not to require such consent – confused?).  For example, an email chain where people other than the data subject are mentioned would need to be considered for redacting.  How easily can your organisation find, review and redact third party information?

Other examples of exempted information:

Specific information regarding medical organisations

Often, my clients have concerns that some law firms may use SARs to obtain medical data for free that was previously chargeable.

Subject Access Request (free) vs Access to Medical Records Act 1988 (chargeable):
Requests from Solicitors acting on behalf of a Patient

The British Medical Association advises that a patient can authorise their solicitor, or another third party, to make a SAR on their behalf. There are very few circumstances when a medical practice will be able to lawfully decline such requests. In this instance, you should ask the person acting on their behalf if there is specific data that they require, for example, are they requesting data covering a specific time period or illness or operation?  This is a valid question for you to ask if the patient data file is substantial.

Tip:  Don’t forget to get valid consent from the patient to disclose their personal and sensitive data to the Solicitor or third party. 

If, however, the request is asking for a report to be written or it is asking for an interpretation of information within the record, this request goes beyond a SAR. It is likely that such requests will fall under the Access to Medical Reports Act 1988, for which a fee may be charged.

Requests from an Insurance company

The British Medical Association, ICO and Association of British Insurers currently advise that Insurance companies should use the provisions of the Access to Medical Reports Act 1988 to seek access to medical records and that the use of SARs to obtain medical information for life assurance purposes is an abuse of subject access rights.

So, that scenario is a bit more clear cut.

The bottom line is….

Your organisation or medical practice must take the time to consider and plan how to respond to a Subject Access Request from an operational perspective.   Don’t wait until you receive one to work out how it should be done.  The clock starts ticking from the day you receive the request.

 

Today’s fact.   Access to your data is a basic Right under GDPR and Data Protection Act 2018.   A data subject can make a complaint to the ICO if an organisation fails to respond to a Subject Access Request. Further failures to respond to requests from the ICO and any Enforcement Notice they serve, is a criminal offence.

=>   This is worst case scenario and easily avoided.  Ensure you have a robust operating procedure to handle Subject Access Requests and train your staff in how to respond, when to respond and what information to provide.

See you next week!

Karen Heaton Data Protection 4 Business

 

Karen

Karen Heaton, CIPP/E, CIPM
Certified Information Privacy Professional
Data Protection 4 Business Limited

Previous blogs in the series:

GDPR and data processing

GDPR and data processing

In the third in our GDPR for healthcare blog series, Karen Heaton of Data Protection for Business discusses how to ensure that you are processing data lawfully and the necessity to track the data subjects’ consent.

How many emails did you receive in the run up to 25th May this year about ‘opt-ins’ to receive marketing? I, for one, enjoyed a clear out of my junk mail. Now, only products and services I am actually interested in arrive in my Inbox. Not only that, but now organisations have to take my unsubscribe request seriously. This was clearly not the case in the past.

But were all these emails necessary? Well, that depends on the lawful basis you have for processing an individual’s data and also how you received an individual’s data.

So, to answer this question, you need first to understand a) your data and b) your lawful basis for using that data.

Understanding your data

This is the crux of data protection compliance. Without properly mapping out your data, you will struggle to be compliant with all aspects of data protection. Why? Because if you cannot answer the basic questions of….

  • What type of data you have – personal data, or Special Category data – Sensitive / Child
  • Where did you source the data
  • Who has access to that data
  • Which processing activities do you undertake on that data – sending marketing messages, sharing with third parties, analysing data for demographics or other profiling types of activities
  • Lawful basis for processing
  • Which country is it stored in

….then you may be asking for consent unnecessarily, or not asking for consent when you should be. As well as a raft of other non-compliant activities, by the way (and it’s a long list!).

In short, you are risking a breach of the core Principles of data protection which, as we learned in last week’s blog, attract: higher level fines; risk of prosecution; audits by the ICO and restriction of business activities. For medical practices, in particular, and client facing businesses in general, there is the potential for non-trivial reputational damage from any of these actions.

 

lawful processing

Lawful basis for processing data

Once you have itemised the personal data within your organisation, then ask yourself which of the following lawful reasons apply to each of the processing activities undertaken on the data. If none of numbers 1-5 apply, then you must seek consent. Medical data and other Special Category data requires explicit consent.

1. Performance of a contract entered into with the data subject

2. Legal Obligation which the Controller must comply with

3. Legitimate Interest of the Controller

4. Vital Interests of the data subject

5. Performance of a task carried out in the Public Interest

6. Consent – the organisation must be able to obtain, maintain and validate lawful consent received from the individual

Example:

A small business selling products has a database of around 3,000 contacts and wants to send those contacts a monthly newsletter with their new product information and special offers. Do they need to send all contacts an ‘opt-in’ to marketing email?

If the company can validate that all their contacts are or were customers or had previously asked for information on their products, and the company had an unsubscribe option in place, then probably not (as data was received from customer for either performance of contract, consent or legitimate interest). However, they must ensure that all new customers ‘opt-in’ to marketing emails and that the unsubscribe option is clear and easy to use.

If the company is not sure where some of its contacts came from, then those will require consent to receive marketing emails. In particular, if contact data were purchased from a third party, the third party has the duty to ensure that consent to sell or transfer their contact details was received from the data subject. If this cannot be confirmed, then consent to marketing is required.

Tracking consent

Where consent is required to process data, your systems must be set up to track and manage that consent, preferably with a description of how consent was given (e.g. during customer registration process or during a consultation). That way, an audit trail of consent is maintained which will assist in demonstrating your organisation’s compliance with data protection, if questioned.

Today’s fact:

In the ICO quarterly statistics from Q1 2018, out of 23 industry sectors, the Health sector had the highest numbers of data breaches for any sector – 677 out of a total 3146 reported incidents – 22% of the total.

Medical data is a Special Category of data and a therefore a higher standard for processing and seeking consent is in place. Individuals are much more aware and inquisitive about how their medical information is used.

=>You must understand your all responsibilities as a Data Controller. For Controllers processing Special Category data, your operational risk is increased. Regular internal reviews of procedures and compliance audits is highly recommended.

See you next week!

Karen Heaton Data Protection 4 Business

Karen Heaton, CIPP/E, CIPM
Certified Information Privacy Professional
Data Protection 4 Business Limited

 

Previous blogs in this series:
GDPR for Healthcare – an introduction
Data Protection Operational Risks and Penalties

 

Data Protection Operational Risks & Penalties

Data Protection Operational Risks & Penalties

In the second in our series of blogs from Karen Heaton of Data Protection 4 Business, she looks at the potential risks involved in GDPR and Data Protection Act (2018) non-compliance.

Operational Risks and Penalties

We all know about the potential for huge fines from the new EU General Data Protection Regulation (GDPR) and now the UK Data Protection Act 2018. These have been grabbing headlines for over a year in the lead up to Implementation-Day of 26th May 2018.

Most headline penalties are based on the highest maximum level of fines 4% of global annual turnover or Euro 20m, whichever is highest. But there is also a standard maximum level, which is 2% of global annual turnover or Euro 10m. Yes, both are hefty penalties – as they apply to turnover, not profits.

Higher level penalties can apply to any failure relating to: the data protection Principles; rights of the individual and data transfers to third countries.

Standard maximum level penalties can apply to infringement of administrative requirements of the regulations. So, breaches of controller or processor obligations, for example.

The size of the penalty will depend on a number of factors: the behaviour of the organisation; what steps have been taken to be compliant; how this can be demonstrated to the ICO and whether the organisational culture takes data protection seriously.

Information Commissioners Office

Data breach penalties

So, let’s look at some recent data breach penalties:

Heathrow Airport data breach loss of a USB stick in Oct 2017 – penalty of £120k was levied under the previous Data Protection Act 1998. The investigation by the ICO found:

  •  only 2% of the 6,500 strong workforce had been trained in Data Protection
  • there was widespread use of removable media (eg USB sticks, CDs) which contravened the company’s guidance
  •  ineffective controls were in place to prevent personal data from being downloaded onto unauthorised or unencrypted (removable) media

Bayswater Medical Centre – left sensitive data in an empty building in July 2015 – penalty of £35k levied under the previous Data Protection Act 1998. The investigation by the ICO found:

The data was left from July 2015 – February 2017 during which time access to the building was granted to other organisations. Emails to the medical centre about the unsecured data had not been actioned.

  • Examples of how poorly the data was secured in the empty building:
  • Patient identifiable data was lying on a desk and in a bin in one of the consultation rooms
  • Medical records stored in 2 unlocked cabinets with the keys left in the locks
  • Boxes of prescribed medication containing patient identifiable information left throughout the premises

The ICO found that the Centre had:

  • Failed to adhere to its own policies regarding security of medical records, patient confidentiality and confidential waste disposal
  • Failed to take adequate physical measures to secure the building
  • Failed to take any or any sufficient measures to secure the physical security of patient identifiable data in the building

Former hospital worker prosecuted for inappropriately accessing patient records in March 16 – January 17

  • She inappropriately accessed the records of 12 patients outside of her role as receptionist/general
  • She was prosecuted for unlawfully accessing personal data and unlawfully disclosing personal data under the Data Protection Act 1998 and additionally fined £230

What does this mean for your practice or organisation?

Well, a number of risk reduction steps should be taken: staff training in data protection; data handling guidelines; security procedures – physical and electronic; encryption of removable devices; restriction of data downloads; understanding your role – Controller/Processor; Data breach procedures; being able to demonstrate compliance with data protection regulations; building a culture of taking data protection seriously. There’s more. See our checklist!

Today’s fact. The ICO quarterly statistics on reported data security incidents found that in Q4 2017, four of the five leading causes (cases where the ICO took action) involved human errors and process (control) failures.

=> Employee training and data handling guidelines are ‘must haves’ for organisations processing Sensitive (ie Medical) Data.

See you next week!

Karen Heaton Data Protection 4 Business

Karen Heaton, CIPP/E, CIPM
Certified Information Privacy Professional
Data Protection 4 Business Limited

Our new GDPR for healthcare blog series

Our new GDPR for healthcare blog series

Earlier in the year our blog outlined some changes to expect in the EU General Data Protection Regulation (GDPR) which came into force on 26th May 2018.

What else happened? Well, on the same day, the UK introduced the UK Data Protection Act 2018 (DPA) which replaced the previous Data Protection Act 1998, and you will be assured to know that the core of the EU GDPR remains within our new 2018 Act (together with other UK specific provisions).

But have you done everything to ensure that you are compliant with the new data protection regulations? Here at Designated Medical, we aim to support you in all areas of your administration, so we’re delighted to introduce a new series of guest blogs from Karen Heaton, founder of Data Protection 4 Business, to guide you through the recent changes and what these mean in pragmatic terms, for your organisation or private medical practice.

GDPR and data protection for healthcare – Karen Heaton, Data Protection 4 Business

Sitting comfortably? Good. Then let’s begin.

Key changes

  • Increased penalties
    2 – 4% of global annual turnover, cessation of processing or, in severe cases, instigation of criminal proceedings. But you knew that already, right? We will take a look at the key risks which may give rise to high penalties.
  • Consent
    Additional conditions for obtaining and maintaining consent are now law. We all received sackfuls of emails from companies requesting our permission to remain on their marketing distribution list in the first half of 2018. But was this necessary? Well, that depends on your organisation and what data processing you undertake. We will look at examples of where consent is obviously required and where possibly not.
  • Data Breach notifications
    In certain instances, the relevant authority must be informed (in the UK, this is the Information Commissioners Office (ICO)). And within 72 hours of becoming aware. But what exactly constitutes a data breach that must be reported? Whose responsibility is it to report it? We will look at examples of breaches and discuss how to assess them.
  • Right to access (SAR)
    Data subject can request a free copy of personal data relating to them that your practice or organisation holds. For private medical practices, how does this compare with the Access to Medical Records Act 1988? For other organisations, what can or can’t I disclose? We will look at examples for both of these.
  • Accountability
    There is now a requirement to be able to demonstrate how your organisation or practice is compliant with GDPR and the DPA. This sounds simple, but what does it really mean? If ever audited or investigated, what would you show them? We will look at essential examples of what you should have in place to meet this requirement.
  • Data Protection Officers (DPO)
    Are you legally required to have a DPO? Probably not, unless you regularly and systematically monitor data subjects on a large scale. Or you are a local authority. But you do still need someone in your practice or organisation who is responsible for ensuring your business is compliant with GDPR and DPA. We will look at the various activities and tasks your nominated person needs to take care of.
  • No-deal Brexit?
    We are tracking the implications of No Deal on the Brexit negotiations and will round off 2018 with our best guidance on how you may need to prepare for this, still unlikely, scenario.

Today’s fact: The ICO reported that there was a 31% increase in the number of Cyber security incidents reported in Jan – Mar 2018 compared to previous year. => Make sure your internet security is up to date!

See you next week!

Karen Heaton Data Protection 4 Business

Karen Heaton, CIPP/E, CIPM
Certified Information Privacy Professional
Data Protection 4 Business Limited

 

 

Further blogs in the series:
Data Protection Operational Risks and Penalties

GDPR – is your practice ready for May 2018? 

GDPR – is your practice ready for May 2018? 

UPDATED OCTOBER/NOVEMBER 2018

We are currently publishing an up-to-date series of blogs related to GDPR, data protection and private medical practices, written by Karen Heaton of Data Protection 4 Business. Click here to start the series:  GDPR for Healthcare – Introduction

UPDATED: JUNE 2018 – This blog was originally published in November 2017 in order to help private medical practices prepare for the implementation of the new General Data Protection Regulation (GDPR).

Whilst the deadline for compliance with the GDPR officially passed on 25th May, it is not too late to ensure that you have implemented the correct procedures in order to protect your patients and employees’ data.

Please read the blog for more information and useful links.

ORIGINAL BLOG:

Next May sees the implementation of a new piece of EU regulation – the General Data Protection Regulation (GDPR).  

Any business, including private medical practices, should be working in accordance with the Data Protection Act 1998 where any personal data is used or collected. There are similarities between the GDPR and the DPA, but this new regulation has some additional requirements that will need to be addressed. So, what are these requirements and what does your practice need to do to ensure you’re ready for May 2018? 

New requirements for data controllers and processors 

This new data regulation is applicable to data controllers and data processors. In the context of a private medical practice, a data controller could be the principal consultant and the data processor could be the practice manager, medical secretary, IT consultant, or anyone who acts on the processor’s behalf.  

Data processed within a medical environment will include names, addresses, email addresses and medical information. For self-pay patients, bank details will also need to be processed in line with the regulations. Medical photography will also be considered personal data, as will any social media interactions you may have with patients (although any communications made in this way will also be subject to additional guidance set out by the GMC).  

Key changes

Although the main principles of the new regulations are still the same as those set out in the previous directive, some of the key changes are: 

  • Penalties Breaches of the GDPR can result in a fine of up to €20 million or 4% of annual turnover, whichever is the larger amount. This amount is in relation to the most serious violations. A company can also be fined up to 2% for less serious breaches. 
  • Consent Terms and conditions relating to consent need to be accessible and clear, using plain language. Companies can no longer use lengthy and ineligible terms and conditions, and must make it easy for subjects and clients to withdraw their consent.  
  • Breach notifications The relevant regulatory authority will need to be notified of any breaches within 72 hours of the data processors and controllers becoming aware of the breach. This is a mandatory step where a breach is likely to put at risk the “rights and freedoms of individuals”. 
  • Right to access – Data subjects (patients, in the case of private medical practices) have the right to request and obtain from the data controller information relating to whether or not their data has been processed and for what purpose. The controller is obliged to provide a free electronic copy of any personal data being held. 
  • Data portability This relates to a subject or patient’s right to request and receive their data, and the right to transfer that data to another company. 
  • Data protection officers The new regulation requires a DPO to be appointed only in situations where the company’s activities include the “regular and systematic monitoring of data subjects on a large scale”, or if the company is a public authority. 

More information on all changes and requirements, including the full criteria for DPO appointments, can be found HERE. 

What about Brexit – do I still need to prepare for the GDPR? 

The GDPR applies to all companies located within the EU that process and hold personal data. Companies located outside of the EU will also need to comply with the regulation if they provide services to people residing in the EU. In the international arena of private healthcare, there is a strong likelihood that services will be offered to EU residents. As a result, it would be sensible for practices to ensure they are working within the regulatory framework of the GDPR, so they are compliant even after the UK leaves the EU. 

How do I assess my practice for compliance? 

For business managers or principal consultants who are unsure how compliant their practices are, the ICO has a useful self-assessment toolkit. 

What happens if my practice does not comply? 

The GDPR came into effect last year, but will be enforced in May 2018. Non-compliance could result in a fine of up to 4%, so it is crucial to take a look at your data management policies and procedures to ensure that you comply with the regulations. 

Data protection at Designated Medical 

Designated Group, including Designated Medical, is committed to protecting client’s privacy and conducts all work in line with the Data Protection Act 1998. We work closely with clients to ensure that data protection laws are adhered to, and all data is stored securely and is encrypted when necessary.  

For more information on our services please call 020 7952 1008, or visit our website at designatedmedical.com