Data Protection (Subject Access Modification – Health) (Jersey) Regulations 2005

Revised Edition

15.240.60

Showing the law as at 1 January 2006

This is a revised edition of the law




Data Protection (Subject Access Modification – Health) (Jersey) Regulations 2005

THE STATES, in pursuance of Articles 30(1) and 67 of the Data Protection (Jersey) Law 2005[1], have made the following Regulations –

Commencement [see endnotes]

1        Interpretation

In these Regulations –

“appropriate health professional” means the health professional chosen in accordance with Regulation 2;

“care” includes examination, investigation, diagnosis and treatment;

“Law” means the Data Protection (Jersey) Law 2005[2].

2        Appropriate health care professional

(1)     For the purposes of these Regulations, the appropriate health professional shall, in relation to a request in respect of information comprised in personal data to which these Regulations apply, be chosen in accordance with this Article.

(2)     If the data controller is the Minister for Social Security and the personal data are processed in connection with the exercise of the functions conferred on him or her under the Health Insurance (Jersey) Law 1967[3] or the Social Security (Jersey) Law 1974[4] (or any other functions that he or she has in respect of health insurance or social security) the appropriate health professional shall be a health professional who appears to the data controller to have the necessary experience and qualifications to advise on the matters to which the information relates.

(3)     In other cases, the appropriate health professional shall be the health professional who appears to the data controller to be currently or to have been most recently responsible for the clinical care of the data subject in connection with the matters to which the information relates.

(4)     If, in the application of paragraph (3), more than one health professional would be chosen, the appropriate health professional shall be, of those that would be so chosen, the one who appears to the data controller to be the most suitable to advise on the matters to which the information relates.

(5)     If, in the application of paragraph (3), no health professional would be chosen, the appropriate health professional shall be a health professional who appears to the data controller to have the necessary experience and qualifications to advise on the matters to which the information relates.

3        Personal data to which Regulations do not apply

These Regulations do not apply to personal data exempted from Article 7 of the Law by Regulations under Article 38(1) of the Law.

4        Data processed by court exempt from subject information provisions

(1)     Subject to Regulation 3, personal data are exempt from the subject information provisions if the data are processed by a court and consist of information as to the physical or mental health or condition of the data subject, being information that –

(a)     is supplied in a report or other evidence given to the court in the course of proceedings relating to families or children; and

(b)     the court directs should be withheld from the data subject on the ground that it appears –

(i)      to be impracticable to disclose the report or other evidence having regard to the data subject’s age and understanding; or

(ii)      to be undesirable to disclose the report or other evidence having regard to the serious harm that might thereby be suffered by the data subject.

(2)     For the purposes of this Article, “proceedings relating to families or children” includes proceedings relating to adoption, matrimonial matters or guardianship.

5        Data exempt from Article 7 where harm likely

Subject to Regulation 3, personal data that consist of information as to the physical or mental health or condition of the data subject are exempt from Article 7 of the Law in any case to the extent to which the application of that Article would be likely to cause serious harm to the physical or mental health or condition of the data subject or any other person.

6        Exemption from Article 7 where person looks after data subject

(1)     Subject to Regulation 3, in a case where a defined person is enabled by or under any enactment or rule of law to make a request under Article 7 of the Law on behalf of a data subject and has made such a request, personal data that consist of information as to the physical or mental health or condition of the data subject are exempt from Article 7 of the Law to the extent to which the application of that Article would result in the disclosure of information –

(a)     provided by the data subject in the expectation that it would not be disclosed to the person making the request;

(b)     obtained as a result of any examination or investigation to which the data subject consented in the expectation that the information would not be so disclosed; or

(c)     that the data subject has expressly indicated should not be so disclosed.

(2)     Paragraph (1)(a) or (b) does not apply to the extent that the data subject has expressly indicated that he or she no longer has the expectation referred to in that sub-paragraph.

(3)     For the purposes of this Regulation, a defined person is a person who –

(a)     has parental responsibility for a child who is the data subject; or

(b)     has been appointed by a court to manage the affairs of a person who is the data subject and incapable of managing his or her own affairs.

7        Modifications of Article 7

Subject to Regulation 3, in relation to personal data that consist of information as to the physical or mental health or condition of the data subject –

(a)     Article 7(7) of the Law shall have effect as if the following word and sub-paragraph were inserted at the end of that paragraph –

“; or

(c)     the information is contained in a health record and the other individual is a health professional who has compiled or contributed to the health record or has been involved in the care of the data subject in the health professional’s capacity as a health professional.”;

(b)     Article 7 of the Law shall have effect as if for paragraph (12) of that Article there were substituted the following paragraphs –

“(12)  If a court is satisfied on the application of –

(a)     a person who has made a request under this Article; or

(b)     a person who would be likely to suffer serious harm to his or her physical or mental health or condition because of compliance with a request under this Article, being compliance that by virtue of an exemption is not required under this Article,

that the relevant data controller has failed to comply with or is about to comply with the request, being failure in contravention of this Article or compliance that by virtue of an exemption is not required under this Article, the court may order the data controller to comply or, as the case may be, not to comply with the request.

(13)    A data controller who is not a health professional shall not, on the ground of the exemption prescribed by Regulation 5 of the Regulations refuse a request under this Article for information unless –

(a)     after receiving the request, the data controller consults the appropriate health professional on the question whether the exemption applies and obtains in writing from the health professional an opinion that the exemption applies to the information; or

(b)     the following conditions are satisfied –

(i)      the data controller consulted a health professional before receiving the request,

(ii)      the health professional was the health professional who would, if the data controller had carried out the consultation under sub-paragraph (a), have been the appropriate health professional,

(iii)     the data controller obtained in writing from the health professional an opinion that the exemption applied to all of the information.

(14)    The conditions referred to in paragraph (13)(b) are taken not to be satisfied if –

(a)     the opinion was obtained before the start of the period of 6 months that ends on the day referred to in paragraph (11)(a) in respect of the request; or

(b)     the opinion was obtained within that period but it is reasonable in all the circumstances to consult the appropriate health professional again.

(15)    A data controller who is not a health professional shall not supply information in response to a request under this Article unless the data controller has first consulted the appropriate health professional on the question whether the exemption set out in Regulation 5 of the Regulations applies with respect to the information.

(16)    Paragraph (15) does not operate in relation to a request to the extent that the request relates to information that the data controller is satisfied has previously been supplied to the data subject or is already within the knowledge of the data subject.

(17)    Paragraph (15) does not operate in relation to a request if the following conditions are satisfied –

(a)     the data controller consulted a health professional before receiving the request;

(b)     the health professional was the health professional who would, if the data controller had carried out the consultation under paragraph (15), have been the appropriate health professional;

(c)     the data controller obtained in writing from the health professional an opinion that the exemption set out in Regulation 5 of the Regulations did not apply with respect to the information that is the subject of the request.

(18)    A reference in paragraph (12) to an exemption includes an exemption set out in the Regulations.

(19)    In this Article –

‘appropriate health professional’ means the health professional chosen in accordance with Regulation 2 of the Regulations;

‘Regulations’ means the Data Protection (Subject Access Modification – Health) (Jersey) Regulations 2005[5].”.

8        Citation

These Regulations may be cited as the Data Protection (Subject Access Modification – Health) (Jersey) Regulations 2005.

 


Endnotes

Table of Legislation History

Legislation

Year and No

Commencement

Data Protection (Subject Access Modification – Health) (Jersey) Regulations 2005

R&O.144/2005

1 December 2005 except –

9 December 2005 Regulation 8

Table of Renumbered Provisions

Original

Current

8

spent, omitted from this revised edition

9

8

Table of Endnote References



[1]                                    chapter 15.240

[2]                                    chapter 15.240

[3]                                    chapter 26.500

[4]                                    chapter 26.900

[5]                                    chapter 15.240.60


Page Last Updated: 03 Apr 2018