Access to records
Part II of the Data Protection (Bailiwick of Guernsey) Law 2001 allows a person to access information held about them subject to certain safeguards and exemptions.
Who is covered?
- Every individual has the right of access to personal information held about them.
- This includes individuals about whom a file is held (e.g. service user or staff member) or any other individual who is referred to directly in that file.
- An individual is not entitled to know what is recorded about another individual without that persons consent.
- A third party may act on behalf of the data subject in the circumstances below:-
- An adult acting on behalf of a child. e.g. parent or carer who has parental responsibility.
- An adult acting on behalf of an adult who is without capacity e.g. carer or person providing support to the person who is subject of the records.
- Where the person who is subject of the records is a previous service user such as person who has been formerly looked after by Services for Children and Young People's social care / work, additional support may be offered. This additional support may include the opportunity to discuss the information with a professional. This will be done without detriment to their statutory rights.
How can someone access their record?
All access to records requests to be made using Health and Social Services Application for Heath and Social Care Records (Form 1) and sent to:The Health Records Manager,Princess Elizabeth HospitalRue MignotSt Martin'sGuernseyGY4 6UU.
Please see Application for Access to Health and Social Care Records Form - this application form is necessary for any type of access to a record and not only a request from the subject, or from somebody acting on their behalf.When a request to access records is received this must be resolved within 60 calendar days of receipt of the request.
When will records not be shared?
There are considerations that need to be made when sharing records. These considerations are written within the Data Protection Laws. These considerations may lead to access to a record, or some part of the record being denied. This may occur due to:
- Information within the record needing a third parties consent for the information to be shared. When this consent is not given, and when this consent is necessary, the record may not be disclosed to the subject. If this happens the applicant will be advised in writing as soon as possible that the decision has been made to refuse access. The subject must be informed of the reason for this refusal.
- Within the Data Protection (Subject Access Modification Social Work Order) States of Guernsey 2002, detail is given to the need for consideration of personal data for the purposes of social work and that disclosure is exempt only when; disclosure to the individual would be likely to prejudice the carrying out of social work by causing serious harm to the physical or mental health, or condition of the individual or another person. "Another person" may be a child or a professional'. Therefore if the information contained on the record is deemed likely to cause serious harm to the subject or another person it will not be disclosed.
Within The Data Protection (Miscellaneous Subject Access Exemptions) Order States of Guernsey 2002 it states that 'where other legislation prevents disclosure, then a data subject cannot rely on the Data Protection Legislation to seek access'. Access to adoption records is an example of this.
Access can be refused where the Department has previously complied with an identical or similar request from the same subject unless a reasonable interval has elapsed between compliance with the previous request and receipt of the next. In deciding what a reasonable interval is, the following factors should be considered:-
- The nature of the information.
- The purpose for which the information is processed.
Subject Access to Adoption/Birth Records
The procedure to access adoption records requires consideration of appropriate legislation and guidance. In the first instance a subject can make a request to access their record through completion of the Application for Access to Health and Social Care Records Form (Form 1).
A request to access an adoption record is outside the scope of the Data Protection Law. This means that any request for access to adoption records needs to be considered alongside the relevant adoption legislation/guidance that is applicable from the place where the subject was born.The Services for Children and Young People's Access to Records Social Worker (social care/work) is available on telephone number: 256923.
This social worker will advise any person wishing to access their adoption records.
Records checks by other agencies
There are several agencies that have procedures in place to carry out appropriate agency checks when checking suitability of candidates who have applied for work with children. This includes the HSSD Under Fives, Childrens' Residential and Fostering and Adoption Services.In these cases the individual about whom the checks are being undertaken will be asked to complete an Application for Access to Health and Social Care Records (Form 1) and to return this form to the service who are processing the application.This form will then be sent to the Assessment and Intervention Social Work Team along with Form 2. The team manager will then delegate the checks of electronic records, hard records, index system and any relevant cross-referencing to a member of the team.If no record is found Form 2 will be completed by the Assessment and Intervention social work team, stating what record(s) has been checked and that no record has been found this will be sent back to the service who is processing the application.
If a record is found the Assessment and Intervention social work team will pass:
- Form 1 (or other relevant form)
- Form 2 (or other relevant form)
- the attached job description (where available)
- Form 3
- and the record that has been found onto the Access to Records Social Worker. This will be done through use of the HSSD internal mail system.
Once all of the relevant information has been received by the Access to Records social worker. Consideration will be made on the detail of the record and whether the consent given is valid to share the record with the potential employer.
If there is a question over whether the consent is valid then the Access to Records social worker may give the subject the opportunity to review the record that is being considered for sharing. This with the purpose of them giving valid consent.
The subject may decide to withdraw their consent. In this event the potential employer will receive written communication detailing that the subject has not given valid consent for HSSD to share information.
There may be times that the subject's withdrawal of consent will not prevent the record being shared with a potential employer/local authority/police. This would be if it is deemed that the nature of the record needs to be shared in order to prevent serious harm. In this scenario the subject will be told that information will be shared, if this is possible without causing risk to another.
Once the Access to Records social worker has concluded that there is valid consent to share the record with the potential employer they will complete Form 3 and return it to the person who has requested the information. This will include recommendations to be considered on a risk assessment. These recommendations will be based on the job description (where it is available) and identified parts of the record that may effect their employment or require further actions.
Information Sharing with Other Agencies
There are times when agencies and professionals will not need valid consent from the subject to request information from the social care/work record.
This is fully detailed in the Data Protection (Bailiwick of Guernsey) Law 2001, Schedule 3 to the Law. Broadly speaking, information may be disclosed without consent where required by Law, where required by a court or in the substantial public interest.
In cases where the Police are conducting an investigation into an allegation of a criminal offence, the valid consent of the subject is not necessary to share information in relation to the allegation. The attached 'Notice from the Police to Services for Children and Young People' needs to be completed.
Information in relation to the request then be released from the Services for Children and Young People's file.
In any event when any agency makes a request for information and there is a query whether this information should be shared, then the Access to Records social worker should be contacted (tel. 256923) to give advice
- Click here for form 2 - request for agency file check [link on intranet]
- Click here for form 3 - agency file check [link on intranet]
- Click here for notice from the police to Children's Services [link on intranet]
- Child protection
- Youth Offending
- Children with Disabilities