General Data Protection Regulation (GDPR)
1.1 Policy statement
The UK General Data Protection Regulation (UK GDPR herein) came into force on 1 January 2021 and is incorporated in the Data Protection Act 2018 (DPA18) at part 2.
The UK GDPR applies to all organisations in the UK (with the exception of law enforcement and intelligence agencies) and Wells Park Practice must be able to demonstrate compliance at all times. Understanding the requirements of the UK GDPR will ensure that the personal data of both staff and patients is protected accordingly.
The Practice aims to design and implement policies and procedures that meet the diverse needs of our service and workforce, ensuring that none are placed at a disadvantage over others, in accordance with the Equality Act 2010. Consideration has been given to the impact this policy might have regarding individual protected characteristics of those to whom it applies.
This document and any procedures contained within it are non-contractual and may be modified or withdrawn at any time. For the avoidance of doubt, it does not form part of your contract of employment.
1.3 Training and support
The Practice will provide guidance and support to help those to whom it applies to understand their rights and responsibilities under this policy. Additional support will be provided to managers and supervisors to enable them to deal more effectively with matters arising from this policy.
2.1 Who it applies to
This document applies to all employees, partners and directors of the organisation. Other individuals performing functions in relation to the organisation, such as agency workers, locums and contractors, are encouraged to use it.
Furthermore, it also applies to clinicians who may or may not be employed by the Practice but who are working under the Additional Roles Reimbursement Scheme (ARRS).1
2.2 Why and how it applies to them
All personnel at Wells Park Practice have a responsibility to protect the information they process. This document has been produced to enable all staff to understand their individual and collective responsibilities in relation to the UK GDPR.
3. Definition of terms
Consent of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.2
3.2 Data Protection Act 2018
The Data Protection Act 2018 (DPA 2018) sets out the framework for data protection law in the UK. It sits alongside and supplements the UK General Data Protection Regulation (UK GDPR). 3
3.3 Data protection by design and default
Data protection by design and default means putting in place appropriate technical and organisational measures to implement the data protection principles effectively and safeguard individual rights.4
3.4 Data Protection Officer
An expert on data privacy, working independently to ensure compliance with policies and procedure
3.5 Data controller
The natural or legal person, public authority, agency or other body that, alone or jointly with others, determines the purposes and means of the processing of personal data 5
3.6 Data processor
A natural or legal person, public authority, agency or other body that processes personal data on behalf of the controller.2
3.7 Data subject
The identified or identifiable living individual to who personal data relates6
3.8 UK General Data Protection Regulation (UK GDPR)
The UK GDPR sets out the key principles, rights and obligations for most processing of personal data in the UK.3
3.9 Personal data
Information that relates to an identified or identifiable individual6
3.10 Personal data breach
A personal data breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.2
Any operation or set of operations that is performed on personal data or on sets of personal data whether or not by automated means such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction
Pseudonymisation is a technique that replaces or removes information in a data set that identifies an individual. 7
The entity to which personal data is disclosed
3.14 Third party
A third party means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data2
4. Introduction of the UK GDPR
The UK GDPR was introduced on 1 January 2021 and is largely based on the EU GDPR which had applied in the UK since 25 May 2018.
4.2 UK GDPR and DPA18
The UK GDPR is incorporated in the DPA18 at Part 2.
5. Data protection by design and default
5.1 Data protection by design
Data protection by design is ultimately an approach that ensures that privacy and data protection issues are considered at the design phase of any system, service, product or process and then throughout the lifecycle.3
Wells Park Practice will demonstrate data protection by design by:
- Conducting a data protection impact assessment (DPIA)
- Ensuring there are privacy notices on the website and in the waiting rooms which are written in simple, easy-to-understand language
- Adhering to Articles 25(1) and 25(2) of the UK GDPR8
- Adhering to Section 6.1 of this policy
Data protection by design is a legal requirement.
5.2 Data protection by default
Data protection by default is an approach that ensures that data is processed only for the achievement of a specific purpose.3
Wells Park Practice will demonstrate data protection by default by:
- Processing data only for the purpose(s) intended
- Ensuring consent is obtained from the data subject prior to data being processed
- Providing patients access to their data on request (Subject Access Requests)
- Ensuring patients consent to access of their data by third parties
- Processing data in a manner that prevents data subjects being identified unless additional information is provided (using a reference number as opposed to names – pseudonymisation)
- Processing data in accordance with section 6.2 of this policy
Through effective data protection, Wells Park Practice will remain compliant with the UK GDPR.
6. Roles of data controllers and processors
6.1 Data controller
At Wells Park Practice,the role of the data controller is to ensure that data is processed in accordance with Article 5 of the UK GDPR. He/she should be able to demonstrate compliance and is responsible for making sure that data is:9
- Processed lawfully, fairly and in a transparent manner in relation to the data subject
- Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes
- Adequate, relevant and limited to what is necessary in relation to the purposes for which the data is processed
- Accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data, which is inaccurate, having regard to the purposes for which it is processed, is erased or rectified without delay
- Kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data is processed
- Processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures
The data controller at Wells Park Practice is Antonia Makinde. They are responsible for ensuring that all data processors comply with this policy and the UK GDPR.
6.2 Data processor
Data processors are responsible for the processing of personal data on behalf of the data controller. Processors must ensure that processing is lawful and that at least one of the following applies:10
- The data subject has given consent to the processing of his/her personal data for one or more specific purposes
- Processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract
- Processing is necessary for compliance with a legal obligation to which the data controller is subject
- Processing is necessary in order to protect the vital interests of the data subject or another natural person
- Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller
- Processing is necessary for the purposes of the legitimate interests pursued by the data controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child
At Wells Park Practice, all staff are classed as data processors as their individual roles will require them to access and process personal data.
7. Data subjects’ rights
All data subjects have the following rights: 11
- The right to be informed
- The right of access
- The right to rectification
- The right to erasure
- The right to restrict processing
- The right to data portability
- The right to object
- Rights in relation to automated decision making and profiling
7.2 Right to be informed
In accordance with Articles 13 and 14 of the UK GDPR, Wells Park Practice is obliged to advise data subjects of the purposes for processing their data, the retention periods for the data and who this data will be shared with. This is referred to as privacy information.
7.3 Right of access
Wells Park Practice ensures that all patients are aware of their right to access their data and has privacy notices displayed in the following locations:
- Waiting room
- Practice website
- Practice information leaflet
To comply with the UK GDPR, all organisation privacy notices are written in a language that is understandable to all patients and meet the criteria detailed in Articles 12, 13 and 14 of the UK GDPR.
The reason for granting access to data subjects is to enable them to verify the lawfulness of the processing of data held about them. In addition, data subjects can authorise third party access, e.g., for solicitors and insurers, under the UK GDPR.
7.4 Right to rectification
In accordance with Article 16 of the UK GDPR, data subjects have the right to have inaccurate personal data rectified and/or incomplete personal data completed. At Wells Park Practice, should a clinician enter a diagnosis that is later proved incorrect, the medical record should retain both the initial diagnosis and the subsequent accurate diagnosis with text to make it clear that the diagnosis has been updated.
Patients can exercise their right to challenge the accuracy of their data and request that this is corrected. Should a request be received, the request should state the following:
- What is believed to be inaccurate or incomplete
- How this organisation should correct it
- If able to, provide evidence of the inaccuracies
A request can be verbal or in writing and the Information Commissioner’s Office (ICO) recommends that any request is followed up in writing as this will allow the requestor to explain their concerns, give evidence and state the desired solution. Additionally, this will also provide clear proof of the requestor’s actions, should they decide to challenge this organisation’s initial response.
7.5 Right to erasure
In accordance with Article 17 of the UK GDPR, data subjects have the right to have personal data erased (this is also referred to as the right to be forgotten). This right permits a data subject to request personal data is deleted in situations where there is no compelling reason to retain the data.
The BMA states: “Whilst it will be extremely rare for information to be deleted from medical records, it is established practice that corrections or amendments can be made; however, the original information, along with an explanation as to why information has been corrected or amended, must remain as an audit trail.”
Where Wells Park Practice has shared information with a third party, there is an obligation to inform the third party about the data subject’s request to erase their data providing it is achievable and reasonably practical to do so. Detailed guidance can be accessed here.
7.6 Right to restrict processing
In accordance with Article 18 of the UK GDPR, individuals have the right to restrict the processing of their personal data. This applies in certain circumstances, with the aim being to enable the individual to limit the way an organisation processes (uses) their data. This right can be used as an alternative to the right to erasure.
7.7 Right to data portability
The right to data portability permits data subjects to receive and reuse their personal data for their own purposes and across different services.
7.8 Right to object
In accordance with Article 21 of the UK GDPR, individuals have the right to object to the processing of their personal data at any time.
At Wells Park Practice, individuals are requested to provide specific reasons why they object to the processing of their data. If the reasons are not an absolute right, this organisation can refuse to comply.
7.9 Rights in relation to automated decision making and profiling
In accordance with Article 22 of the UK GDPR, Wells Park Practice, is not permitted to make solely automated decision making. This includes profiling.
8. Subject access requests
8.1 Recognising subject access requests
“An individual can make a SAR verbally or in writing, including on social media. A request is valid if it is clear that the individual is asking for their own personal data.”
Any requests not using the SAR form, must be processed.
8.2 Responding to a subject access request
In accordance with the UK GDPR, data controllers must respond to all data subject access requests within one month of receiving the request. It is the guidance of the ICO that a universal approach is applied and a 28-day response time implemented. 12
At Wells Park Practice, the 28-day response time applies.
In the case of complex or multiple requests, the data controller may extend the response time by a period of two months. In such instances, the data subject must be informed and the reasons for the delay explained.
Should the request involve a large amount of information, the data controller will ask the data subject to specify what data they require before responding to the request. Data controllers are permitted to ‘stop the clock’ in relation to the response time until clarification is received.
Under the UK GDPR, Wells Park Practice is not permitted to charge data subjects for initial access; this must be done free of charge. In instances where requests for copies of the same information are received or requests are deemed “unfounded, excessive or repetitive”, a reasonable fee may be charged. However, this does not permit the organisation to charge for all subsequent access requests.13
The fee is to be based on the administrative costs associated with providing the requested information.
8.4 Verifying the subject access request
It is the responsibility of the data controller to verify all requests from data subjects using reasonable measures.
The use of the organisation’s Subject Access Request (SAR) form supports the data controller in verifying the request. In addition, the data controller is permitted to ask for evidence to identify the data subject, usually by using photographic identification, i.e., driving licence or passport.
8.5 Supplying the requested information
The decision on what format to provide the requested information in should take into consideration the circumstances of the request and whether the individual can access the data in the format provided.
Should an individual submit a SAR electronically, Wells Park Practice will reply in the same format (unless the data subject states otherwise).
8.6 Third party requests
At this organisation, the data controller must be able to satisfy themselves that the person requesting the data has the authority of the data subject.
The responsibility for providing the required authority rests with the third party and is usually in the form of a written statement or consent form, signed by the data subject. A standard consent form has been issued by the BMA and Law Society of England and Wales and Wells Park Practice will request that third parties complete this form.
8.7 Requests from solicitors
At Wells Park Practice requests are received from third parties such as solicitors. It is the responsibility of the third party to provide evidence that they are permitted to make a SAR on behalf of their client. If concern or doubt arises, this organisation will contact the patient to explain the extent of disclosure sought by the third party.
Wells Park Practice can then provide the patient with the data as opposed to directly disclosing it to the third party. The patient is then given the opportunity to review their data and decide whether they are content to share the information with the third party.
8.8 Requests from insurers
SARs are not appropriate should an insurance company require health data to assess a claim. The correct process for this at Wells Park Practice is for the insurer to use the Access to Medical Reports Act 1988 (AMRA) when requesting a GP report.
The following fees are applicable:14
- GP report for insurance applicants £104.00
- GP supplementary report £27.00
8.9 Refusing to comply with a SAR
This organisation will only refuse to comply with a SAR where exemption applies or when the request is manifestly unfounded or manifestly excessive. In such situations, the data controller will inform the individual of:
- The reasons why the SAR was refused
- Their right to submit a complaint to the ICO
- Their ability to seek enforcement of this right through the courts
Each request must be given careful consideration and should Wells Park Practice refuse to comply, this must be recorded and the reasons for refusal justifiable.
9. Data breaches
9.1 Data breach definition
A data breach is defined as a security incident that has affected the confidentiality, integrity or availability of personal data. 15
Examples of data breaches include:
- Access by an unauthorised third party
- Deliberate or accidental action (or inaction) by a data controller or processor
- Sending personal data to an incorrect recipient
- Loss or theft of computer devices containing personal data
- Alteration of personal data without permission
- Loss of availability of personal data
9.2 Reporting a data breach
At Wells Park Practice, should any member of staff become aware of a data breach, they are, where possible, to contain the breach and advise the Practice Manager immediately.
When determining whether this organisation needs to report the data breach to the ICO, this decision is to be based on whether or not the breach is a high risk to an individual’s rights and freedoms. If this is deemed to be the case, then the ICO will need to be notified.
Whatever decision is made, this organisation must be able to justify the decision.
Breaches are to be reported to the ICO without undue delay or within 72 hours of becoming aware of the breach. Wells Park Practice will report the breach using the Data Security and Protection Incident Reporting Tool.
Failure to report a breach can result in a fine of up to £8.7m. It is therefore imperative that there are effective processes in place at this organisation to detect, investigate and report breaches accordingly.
The data controller is to ensure that all breaches at Wells Park Practice are recorded. Article 33 of the UK GDPR outlines the requirements which include:
- Recording the facts pertaining to the breach
- The effects the breach has had on individuals or organisations
- Any remedial action(s) that have been completed
- The cause of the breach i.e., system or human error
- Considering what system or process changes may be required to prevent future incidences
9.3 Notifying a data subject of a breach
The data controller must notify a data subject of a breach that has affected their personal data without undue delay. If the breach is high risk (i.e., a breach that is likely to have an adverse effect on an individual’s rights or freedoms), then the data controller is to notify the individual before they notify the ICO.
The primary reason for notifying a data subject of a breach is to afford them the opportunity to take the necessary steps in order to protect themselves from the effects of a breach.
When the decision has been made to notify a data subject of a breach, the data controller at this organisation is to provide the data subject with the following information in a clear, comprehensible manner:
- The circumstances surrounding the breach
- The details of the person who will be managing the breach
- Any actions taken to contain and manage the breach
- Any other pertinent information to support the data subject
The UK GDPR states that consent must be unambiguous and requires a positive action to “opt in” and it must be freely given. Data subjects have the right to withdraw consent at any time.
10.2 Obtaining consent
Consent is one of the lawful bases of processing and is appropriate if data processors are in a position to “offer people real choice and control over how their data is used”. If it is deemed appropriate to obtain consent, the following must be explained to the data subject:
- Why the organisation wants the data
- How the data will be used by the organisation
- The names of any third party data controllers with whom the data will be shared
- Their right to withdraw consent at any time
All requests for consent are to be recorded, with the record showing:
- The details of the data subject consenting
- When they consented
- How they consented
- What information the data subject was told
Consent is to be clearly identifiable and separate from other comments entered into the healthcare record. At this organisation, it is the responsibility of the data controller, Antonia Makinde to demonstrate that consent has been obtained. Furthermore, the data controller must ensure that data subjects (patients) are fully aware of their right to withdraw consent and must facilitate withdrawal as and when it is requested.
10.3 Parental consent
The DPA 2018 states that parental consent (in relation to personal data) is required for a child under the age of 13. Additionally, the principle of Gillick competence remains unaffected and parental consent is not necessary when a child is receiving counselling or preventative care.
11. Data mapping and Data Protection Impact Assessments
11.1 Data mapping
Data mapping is a means of determining the information flow throughout an organisation. Understanding the why, who, what, when and where of the information pathway will enable Wells Park Practice to undertake a thorough assessment of the risks associated with current data processes.
Effective data mapping will identify what data is being processed, the format of the data, how it is being transferred, if the data is being shared and where it is stored (including off-site storage if applicable).
The Data Flow Mapping Register details the process of data mapping at this organisation.
11.2 Data mapping and the Data Protection Impact Assessment
Data mapping is linked to the Data Protection Impact Assessment (DPIA) and, when the risk analysis element of the DPIA process is undertaken, the information ascertained during the mapping process can be used.
Data mapping is not a one-person task. All staff at Wells Park Practice will be involved in the mapping process thus enabling the wider gathering of accurate information.
11.3 Data Protection Impact Assessment
The DPIA is the most efficient way for this organisation to meet its data protection obligations and the expectations of its data subjects. DPIAs are also commonly referred to as Privacy Impact Assessments or PIAs.
In accordance with Article 35 of the UK GDPR, a DPIA should be undertaken where:
- A type of processing, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks
- Extensive processing activities are undertaken, including large scale processing of personal and/or special data
DPIAs are to include the following:
- A description of the processing operations, including the purpose of processing
- An evaluation of the need for the processing in relation to the purpose
- An assessment of the associated risks to the data subjects
- Existing measures to mitigate and control the risk(s)
- Evidence of compliance in relation to risk control
It is considered best practice to undertake DPIAs for existing processing procedures to ensure that Wells Park Practice meets its data protection obligations. DPIAs are classed as “live documents” and processes should be reviewed continually. As a minimum, a DPIA should be reviewed every three years or whenever there is a change in a process that involves personal data.
11.4 Data Protection Impact Assessment process
12. Information asset register
An information asset register (IAR) is a repository for similar or specific types or information and these repositories can be either physical or virtual. They include records management, cloud storage or backup systems, email services or even manual filing cabinets. Any repository where data is stored or processed is deemed to be an information asset.
In terms of information governance, the IAR reflects the risks and potential outcomes that are possible should that asset become lost or compromised. An IAR is a simple way to help understand and manage the organisation’s information assets – i.e., what the organisation has, where they are, how they are secured and who has access to them.
Data has both value and risk so, from a commercial point of view and a governance point of view, having an IAR really is essential. It should state who is specifically responsible for each information asset, i.e., the information asset owner. For larger organisations, the various assets could have different owners which should be recorded on the register.
The register must note whether the asset contains personally identifiable information and whether that information includes any ‘sensitive’ or ‘special category’ personal data.
The organisation will ensure appropriate procedures are in place for effective information risk management and provide the structural means to identify, prioritise and manage the risks involved in all information activities. Measures will be taken to ensure that each system is secured to an appropriate level and that data protection principles are maintained.
Maintaining an accurate asset register supports the process of effectively managing assets within the organisation, minimises risk and always encourages staff to work securely.
Given the complexity of the UK GDPR, all staff at Wells Park Practice must ensure that they fully understand the requirements within the regulation.
Understanding the regulation will ensure that personal data at this organisation remains protected and the processes associated with this data are effective and correct.
- Network DES specification 2022/23
- Article 4 UK GDPR
- ICO About the DPA 2018
- ICO Guide to the UK General Data Protection Regulation
- ICO Definitions
- ICO What Is Personal Data
- Article 25 UK GDPR
- Article 5 Principles relating to processing of personal data
- Article 6 Lawfulness of processing
- ICO Individual Rights
- ICO Right of access
- BMA Guidance – Access to health records
- BMA Guidance – Fees for insurance reports and certificates
- ICO – Personal data breaches
- 1CO Consent
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