Ethics Guidance for Occupational Health Practice 9th Edition - Book - Page 48
The Information Commissioner has indicated that the employment relationship
is one where there may be an imbalance of power. All data controllers must find
a lawful basis for processing in Article 6.
3.54. In addition to compliance with Article 6, Article 9 of the GDPR provides that
special category data, formerly known as sensitive data, which includes health
data, cannot be lawfully processed unless one of the paragraphs in Article 9 (2)
applies. Article 9(2)(h) states that a lawful basis for processing special category
data is where:
“Processing is necessary for the purposes of preventive or occupational medicine,
for the assessment of the working capacity of the employee, medical diagnosis,
the provision of health or social care or treatment or the management of health
or social care systems and on the basis of UK law or pursuant to contract with a
health professional and subject to the conditions and safeguards referred to in
paragraph 3.”
3.55. Paragraph 3 provides that this justification applies when data are:
“Processed by or under the responsibility of a professional subject to the obligation
of professional secrecy under UK law or rules established by national competent
bodies or by another person also subject to an obligation of secrecy under UK law
or rules established by national competent bodies”.
3.56. Occupational health professionals are advised to rely on these provisions as a
lawful basis when giving confidential information to employers and other third
parties, but they must also continue to obtain consent as before where that
is indicated by the common law and the ethics of their professions.
Capacity
3.57. Under the Mental Capacity Act 2005 27, a person is assumed to have capacity
unless proven otherwise. Professional guidance, including from HCPC NMC
and GMC, advises that, when obtaining consent, consideration should be given
to whether an individual has the capacity to give consent: are they able to
understand, retain and weigh up information, and communicate a decision?
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