Earlier this week Christopher Fincken, the chairman of the UK Council of Caldicott Guardians, said that the money NHS bodies were using to pay fines levied on them by the Information Commissioner's Office for serious breaches of the Data Protection Act "effectively come[s] out of funding patient care," according to a report by the Public Service website.
Caldicott guardians are members of NHS staff who have a responsibility to ensure patient data is kept secure and shared appropriately.
Fincken, who was speaking as an individual, said it was "quite wrong" that "the innocent patient" could suffer if NHS bodies were cutting funding to patient services in order to pay data breach fines. He said that "there needs to be a different mechanism, a fairer way" to punish data breach offenders, adding that "relevant officers" in the NHS had to be held "responsible and accountable" over the cases.
Whilst he said that the ICO should impose fines where "necessary", it was questionable if this was the correct approach "if it means that somebody isn't going to get their operation, or somebody isn't going to have the access that they should have to health services," according to the Public Service report.
In response a spokesperson for the ICO told Out-Law.com that NHS bodies can avoid wasting public money by better protecting personal data.
"The monetary penalties we issue are a very important way to discourage others from making the same data protection mistakes," the spokesperson said. "The best way a public authority can protect taxpayers’ money is by not being lax in the way it looks after personal information in the first place."
"The [Information] Commissioner will take into account the factors set out in the statutory guidance on a case by case basis to determine an appropriate penalty. The sector, size, financial and other resources of the data controller and the nature and impact of the breach will all be considered before determining the amount of a monetary penalty. The nature of a civil monetary penalty against an NHS body is that the fine does come from taxpayers’ money, but it is important to realise that the money stays in the public purse, and is paid into the Treasury’s Consolidated Fund. Nothing is kept by the Information Commissioner’s Office," they added.
In June the ICO levied its highest ever fine on an NHS Trust in England, and soon after issued its second highest ever fine on a health body in Northern Ireland for breaches of data protection rules.
The ICO fined Brighton and Sussex University Hospitals NHS Foundation Trust (BSUH) £325,000 after "highly sensitive personal data" was stolen from a hospital under its control and sold on eBay. BSUH has appealed the decision to an Information Tribunal, claiming that it cannot afford to pay the fine despite the ICO concluding that the body has "sufficient financial resources" to do so.
The ICO then served Belfast Health and Social Care (BHSC) Trust with a £225,000 fine after patient and staff records left at an abandoned hospital site were photographed by trespassers and posted on the internet.
At the beginning of this year the ICO outlined its strategic intention to give "particular regulatory attention" to health organisations in a bid to focus on areas most likely to result in damage to people's information rights. So far this year the watchdog has issued civil monetary penalty penalties to six NHS bodies totaling £945,000.
The ICO has issued guidance on the procedures it follows when determining whether and how much to fine organisations. The guidance states that the watchdog will only impose a monetary penalty if it is "appropriate" to do so and at a level that is "reasonable and proportionate, given the particular facts of the case and the underlying objective in imposing the penalty".
Whether a penalty is reasonable and proportionate or even appropriate at all depends on "the particular facts and circumstances" of individual cases and the "representations" that organisations are permitted to make to explain the incident.
The ICO is obliged to write a notice of intent detailing the amount it proposes to fine organisations or individuals for serious breaches of the DPA and the reasons why. The notice must also set out the right of the body or person to make their representations in response. The ICO's guidance states that the representations can include "comment on the facts and views" of the Commissioner, "general remarks on the case" or details of their financial situation. The ability to pay is one of several factors that the ICO has said it considers when evaluating the level of penalty organisations should have to pay for breaching the DPA.
Following this stage the ICO reassesses the individual cases and serves a finalised monetary penalty notice, if it chooses to issue one, on the organisation or individual.
Earlier this year Out-Law.com sent a freedom of information request to the ICO answers to which revealed that the watchdog had revised down the level of fines it had served to organisations from the amount it had initially proposed to levy in 50% of cases.