Section 3: The Data Protection Act 1998

The Data Protection Act 1998 (DPA) implements the provisions of the EU Data Protection Directive (95/46/EC) and aims to “protect individuals with regard to the processing of personal data and on the free movement of such data”.

Schedule 1 of the Data Protection Act lists the data protection principles in the following terms

1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.

3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.

4. Personal data shall be accurate and, where necessary, kept up to date.

5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.

6. Personal data shall be processed in accordance with the rights of data subjects under this Act.

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

The DPA provides a framework that governs the processing of information that identifies living individuals. Processing includes holding, obtaining, recording, using and disclosing of information and the Act applies to all forms of media, including paper and images. It applies to confidential patient information but is far wider in its scope, e.g. it also covers personnel records. The Act also includes other requirements including requirements of notification (formerly registration) with the Information Commissioner, commitment to data quality, effective information security and the extension of a range of rights to service users and patients.

Guidance on the Data Protection Act 1998 is available from the Information Commissioner’s Office.

The first data protection principle in the Act requires that information is processed lawfully which extends the Act to cover all other legal requirements and restrictions. Guidance on the interaction between the common law duty of confidentiality and the Data Protection Act is provided in the Department of Health publication Confidentiality: NHS Code of Practice. 

The Data Protection Act 1998 requires, as far as is practicable, that individuals are informed about who has access to information that might identify them and for what purposes.

The right to object to confidential information being shared for purposes beyond an individual’s care and treatment should be followed through by actual processes to ensure individuals fully understand what they can object to and how to initiate that process, otherwise it could be considered unfair processing.

More information about fair processing is available in the Information Commissioner’s Data Sharing Code of Practice and the Information Commissioner’s Privacy Notice Code of Practice.