Data protection and access to care records
This page takes you through Data Protection Legislation, and explains how and why it may impact upon locating and obtaining records about your time in care.
Your right to access your records is contained in Data Protection legislation, rather than in legislation about care or leaving care.
Data Protection legislation applies to everyone and is designed to keep safe the personal ‘data’ and information that organisations hold about you. Since 1998 it has applied to every care provider, including the voluntary and private sectors. It sets the rules for how information about you can be collected, stored and managed, and how you can access it. It establishes your access rights as the ‘subject’ of the data and the responsibilities of the organisation who is acting as a ‘data controller’.
A new Data Protection Act was passed in 2018, based on the EU General Data Protection Regulation (GDPR). This gave people new rights over their data, including the right to amend it when it’s incorrect and the right to request that it be erased. The Information Commissioner Office’s Guide to Data Protection outlines these rights, as well as the standards that organisations have to meet.
However, social work records are treated as a ‘special category of data’ by the law. This means that some records may be exempt from the data protection requirements, especially where they relate to an ‘open case’ (e.g. if a person is still in care). Schedule 3 of the Data Protection Act 2018 sets out these exemptions and when they can be used.
The most relevant exemptions are:
- The ‘serious harm’ exemption – This says that your right to access your records doesn’t apply if seeing them ‘would be likely to prejudice carrying out social work, because it would be likely to cause serious harm to the physical or mental health of the data subject or another individual’ (Schedule 3, Part III, paragraph 7(2)) This is most often used where someone is still in care, but it can be used with adults too.
- The ‘confidentiality’ exemption – This says that you do not have the right to access information that has been provided with an expectation of confidentiality or where someone expressly specified you shouldn’t be told. (Schedule 3, Part III, paragraph 10 (2))
As records are required by law, and organisations are required to keep them for 75 years, the current consensus is that the right to erasure does not apply to social care records. However, this hasn’t yet been tested in the courts.
However, you still have the right to request your records be amended if they are incorrect, or to ask that a correction be stored along with them if a change cannot be made to the record itself.