Get your act together

Misused, maligned and misunderstood, the Data Protection Act
1998 is in trouble. The bane of many social workers’ lives for
years, it has been hitting the headlines for all the wrong

Following the revelations about Soham murderer Ian Huntley’s
history with underage girls – the electronic records of which were
deleted by Humberside police – came the deaths of a couple in their
eighties after British Gas cut off their supply without notifying
social services.

Both Humberside police and British Gas pleaded innocence, arguing
that the act prevented them from passing on the pertinent
information. But the man charged with enforcing the act throughout
the UK, information commissioner Richard Thomas, has rejected the
claim in both cases.

He says in cases where the results of the act seem to “offend
common sense”, organisations should seek guidance and clarification
rather than “hide behind data protection as a smokescreen for
practices which no reasonable person would ever find acceptable”.
And he says: “the data protection principles are largely matters of
common sense and fairness.”

But common sense is anything but common. A law that relies on the
common sense and judgement of thousands of organisations and
individuals in different circumstances is simply asking for
trouble. And, although legislation is certainly necessary to
protect people from a Big Brother state where government and
commercial bodies know everything about everybody, the act is
widely acknowledged – most recently by Thomas himself – to be “a
cumbersome and inelegant piece of legislation”.

Social care has more problems with this piece of legislation than
most. Much of the information accessed by social care professionals
is sensitive, yet sharing it quickly and appropriately can save
lives. In 2000, aware of the difficulties, the Department of Health
published lengthy guidance for social services
departments.1 Yet, reading this complex and legally
phrased document, one would be forgiven for wondering whether it is
any clearer than the act itself.

More recently – and possibly in response to the difficulties many
of the government’s flagship identification, referral and tracking
pilots have encountered around information sharing – the Department
for Constitutional Affairs published a further 40-odd pages of
advice and guidance for public authorities on their
responsibilities.2 Unfortunately, like the DoH attempt
three years earlier, it is difficult to imagine anyone who is not a
lawyer coming away from this latest set of guidance feeling any the

This all leaves many social care staff confused by their data
protection responsibilities. They are uncertain where the
boundaries lie and anxious about stepping over a line they cannot
see. User-friendly, accessible guidance is badly needed.

Last week, the Information Commissioner’s Office (ICO) announced
its response to the recent furore over the act and its
interpretation. Thomas’s office is working on “more practical and
user-friendly” guidance for a range of sectors. It is asking again
for advice from practitioners about how to make data protection
simpler and will publicise and strengthen the helpline which offers
advice and assistance for organisations with data protection

As part of this, the ICO wants umbrella bodies and senior
organisations, including the Association of Directors of Social
Services and Association of Chief Police Officers, to come forward
with what they think will be workable guidance. The ICO will help
with the finishing touches.

ICO assistant commissioner David Smith says: “There are certainly
problems with the act – it’s a long and, in some places, difficult
piece of legislation. But I’m not sure whether scrapping it and
starting again would solve the problem, partly because it stems
from an EC directive that has to apply across the EU. Yes, if you
were to sit down with a blank sheet of paper you’d probably write
something much simpler and easier to follow. But that’s not going
to happen, so we have to make the best of the law that we have. And
it does contain some fairly simple messages – such as treating
people fairly, not keeping information longer than necessary and so

“The element of judgement is unavoidable. What’s easy for people is
to give them simple instructions, which they just follow. But in
many areas, including social services, you can’t reduce what people
have to do to a set of simple instructions. You can produce
guidance for people. It’s possible for us to sit down and produce
that, but we run the risk of missing out vital elements which those
who work within these organisations will know about.

“We’d like senior level organisations to come up with specific
guidance which reflects the complexity of what they have to
achieve, and we’d be extremely happy for them to come and talk to
us about it.”

The ICO is charged with advising and assisting on the act and
enforcing it. But, as Smith admits, there is little that can be
done under the act when people are harmed as a result of agencies
deleting information they hold or failing to share it. He says:
“The act is primarily about protecting people from having their
information used improperly. In Humberside the police authority had
deleted files, which may be negligent, and people may be able to
take action under other legislation. But it certainly isn’t a
breach of the act.”CC

– Data protection helpline is01625 545745. The Information
Commissioner’s Office can be contacted at

1 Department of Health, Data
Protection Act 1998, Guidance to Social Services, 2000

2 Department for Constitutional Affairs, Public Sector
Data Sharing. Guidance on the law, 2003

View on the ground 

Stuart Macpherson, is a duty officer for an independent
fostering agency  
“The act is a cruise liner where you need a speed boat.
It is heavy and huge, written in impenetrable jargon and
‘legalese’. For example, a person is a ‘data subject’. It ought to
be rewritten in simple language with common sense. But a first step
would be a simple guide to the main demands and the limitations
that those demands apply.” 

Deborah Badley is a youth offending social worker in

She says that, rather than protecting people, the act can have the
opposite effect. “Data protection becomes a real issue when seeking
accommodation for young people. Most hostel workers want to have
copies of the pre-sentence report, but this can’t be shared. The
response is often that they won’t progress the application any

Jacqueline Castles is an independent social care
She believes that the lack of clear in-house guidance is
the problem. “I would devise protocols in the light of
organisational understanding of the act, and then have them
‘legalled’. I see a failure to develop strategies and procedures,
followed by hiding behind allegedly restrictive legislation. Bodies
such as the Association of Directors of Social Services and
Association of Chief Police Officers should also take more of a
lead in anticipating problems thrown up by new legislation and
nudge their members to take a lead in their own organisations. You
don’t wait until a problem arises to start thinking about how to
solve it.”

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