Ombudsman; Council maladministration - Data Protection and mental health

(Later post 7th August; Friday's Herald - The Ombudsman's report)

Another complaint to the Ombudsman made against Carmarthenshire Council has been upheld. The complaint relates to Adult Social Care and the decision was issued in June.

In summary, the matter has been ongoing since October 2011 and is both complex and very sensitive. It is also of wider interest as it concerns Article 8 of the Human Rights Act (Right to a private life), Data Protection and the common law principle of confidentiality concerning a person suffering from mental health issues.

The Ombudsman summarises the case thus;

Summary 

Mr B made a complaint on behalf of his adult daughter Ms A, who lives in a supported housing project. He complained that the Council had copied, used and kept on file a copy of Ms A’s personal writings without her knowledge or permission. The Council had been asked to remove the copy of Ms A’s writings from her records but it did not agree to this. 

The Ombudsman found that Ms A’s writings had been copied from her personal notebook, left open in a communal area of the project, by project staff who were concerned by the nature of the content. They had shared it with Ms A’s then care coordinator. A decision was taken that the content did not indicate risk and the writings were not to be kept on file.  

It seems that an electronic copy was inadvertently kept, which over a year later appeared appended to a social services report to a mental health tribunal. The writings therefore remained permanently on Ms A’s file as part of this report.  

Ms A had requested that they were removed, but the Council stated that they were relevant to future care and they would remain on file. 

The Ombudsman upheld the complaint. Whilst the retention of the document was ultimately a decision for the Council, there were several reasons that the Ombudsman cited for concluding that retaining Ms A’s personal writings seemed to be disproportionate. These were that: 

1. The writings are Ms A’s own sensitive personal data; they were not intended to be seen or copied in the first instance; 

2. The initial decision was that the writings did not indicate risk and should not be kept on file; 

3. Ms A had requested their removal; 

4. They were not in the correct context in the social services report; 

5. They did not add any specific information relevant to Ms A’s current and future care and support needs. 

The Ombudsman recommended that the Council apologise to Ms A and review its service agreement with the supported housing provider. The Council also agreed to remove the copy of Ms A’s writings from her file. 

The Ombudsman records Ms A's progress and the succession of care coordinators but significantly the Mental Health Tribunal scheduled by her third care coordinator for December 2012 was in relation to the detention of Ms A under the Mental Health Act and the copy of her writing, typed out by staff at the home had been attached to her file, without her knowledge, in the Council's submission. In the event the Tribunal was not considered necessary but her writing remained on her file.

Mr B made several complaints to the council that Ms A's private writings were being used by Social Services without her knowledge nor consent. He also considered that the writings were irrelevant having reflected her condition several months before the Tribunal and that Ms A's Human Rights to the privacy of her personal writings had been breached

In September 2013 Ms A signed a statement;
“This is to confirm that I have not given permission for my private writings to be circulated and used by anyone and that I would like them removed from my files and an assurance that unless I am a genuine risk to myself or others, my privacy be respected at all times”.

The Council continued to refuse to remove the writings from her file. They contended that both it, and the care provider had acted correctly in attaching the copy to the file as it was pertinent to her mental care. They also argued that the writings had not been discussed with Ms A as she was not well. Data Protection exemptions to not seek consent had been used to 'protect the vital interests' of Ms A and the decision was, they claimed, in line with the Human Rights Act which qualifies that privacy may be breached “in accordance with the law and ...necessary... for the protection of health”

The Ombudsman's analysis and conclusion makes it clear that it is not within his power to determine a breach in the law, only whether the Council were guilty of maladministration. The issue was whether or not the council had acted reasonably and proportionately in striking the correct balance between the right to confidentiality and any appropriate disclosure.

The Ombudsman concludes that the records from the first care coordinator show that there was no intention of making or keeping a copy at all. The fact that the writings were 'inadvertently' copied and kept shows a failure to understand the meaning of 'not kept on file'. In such a case all copies should have been deleted or destroyed.

As it happened the writings were copied and kept and found their way onto the Tribunal file. The Ombudsman found that they were not placed in the context of Ms A's current mental health and were further misrepresented in that they incorrectly attribute the writings to the 'summer' 2012, rather than October 2011.

Whilst the Ombudsman believed that Ms A should have been told that her writings had been copied and used in this way, even as a matter of good practice - he points out that Tribunal reports are disclosed to the subject anyway so she would have then become aware of the contents eventually. Which is exactly what happened.

He states that even if concerns were raised over the writings it was not necessary to keep a verbatim copy, the issues raised could have been discussed verbally in general terms as part of the care plan. The Council could have noted any relevant concerns without keeping the whole copy - which shouldn't have been kept in the first place and;

No member of staff sought to inform or discuss with Ms A at any stage that her diary entries had been seen or subsequently been used in the report. This should have been discussed with her.

The Ombudsman disagreed with the council and found that in keeping the personal writings the first principle of Data  Protection had been breached; they had not been processed fairly. Neither did the retention of the writings add relevant or specific information to current or future care, her vulnerability was already demonstrated in her clinical and care history outlined in the Council's response..

The writings were not intended to be seen or copied by staff in the first place and the initial decision not to keep the writings on file should have been followed, and additionally the context and dates were incorrect.

In addition, Ms A herself was upset by the inclusion of her own personal and sensitive writings in her records and had requested their removal.

The Ombudsman states that the writings have now been removed and the Council have been ordered to apologise to Ms A. The Ombudsman also suggested that the care provider issue further training and guidance to its staff regarding issues of confidentiality and data protection.