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The Access to Personal Files and Medical Reports (Northern Ireland) Order 1991

Status:

This is the original version (as it was originally made).

PART IINTRODUCTORY

Title and commencement

1.—(1) This Order may be cited as the Access to Personal Files and Medical Reports (Northern Ireland) Order 1991.

(2) This Part shall come into operation on the expiration of 2 months from the day on which this Order is made, Part III shall come into operation on the expiration of 5 months from that day and Part II shall come into operation on such day or days as the chief executive member may by order appoint.

Interpretation

2.  The [1954 c. 33 (N.I.)] Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

PART IIACCESS TO PERSONAL FILES

Definition of accessible personal information

3.—(1) In this Part—

(a)“personal information” means information which relates to a living individua l who can be identified from that information (or from that and other information in the possession of the authority keeping the record) including any expression of opinion about the individual but not any indication of the intentions of the authority with respect to that individual;

(b)“accessible personal information” means, subject to paragraph (2), information which is held in a record kept by an authority specified in the first column of the Table in the Schedule and is information of a description specified in the second column of that Table in relation to that authority;

and any obligation to give access to information is an obligation to give access to the individual who is the subject of it or is, under that Schedule, to be treated as such.

(2) As respects any regulations under Article 5, information is not accessible personal information if recorded before—

(a)the date on which the regulations came into operation; or

(b)the first date on which regulations imposing a corresponding obligation came into operation,

except to the extent that access to it is required to make intelligible information recorded on or after that date.

(3) The Northern Ireland department which in accordance with paragraph (4) is the relevant department in relation to an authority for the time being specified in the first column of the Table in the Schedule may by order subject to affirmative resolution amend the description of information for the time being specified in the second column of that Table in relation to that authority or the provisions of paragraph 2 of that Schedule which apply for the interpretation of that description.

(4) In this Part “the relevant department” means—

(a)in relation to the Northern Ireland Housing Executive, the Department of the Environment;

(b)in relation to a Health and Social Services Board, the Department of Health and Social Services.

(5) The chief executive member may by order made subject to affirmative resolution amend the Table in the Schedule by adding to the list of authorities set out in the first column of that Table.

(6) An order under paragraph (5) shall, in relation to each authority added to the first column of the Table in the Schedule,—

(a)amend the second column of that Table (and, if necessary, paragraph 2 of the Schedule) so as to specify the information which is to be accessible personal information in relation to that authority; and

(b)amend paragraph (4) so as to specify the Northern Ireland department which is to be the relevant department in relation to that authority.

Obligation to give access, etc.

4.—(1) Subject to the provisions of this Part and regulations under Article 5, any authority keeping records containing personal information which is accessible personal information shall have such obligations as regards access to, and the accuracy of, that information as are imposed by the regulations.

(2) Where an individual is, or would but for any exemption be, entitled under section 21 of the [1984 c. 35] Data Protection Act 1984 to be supplied with information constituting personal data of which he is the subject no obligation arises under this Part to give him access to that information.

(3) Article 39(5) of the [1983 NI 15] Housing (Northern Ireland) Order 1983 (duty of landlord to give access to certain information) shall not apply in respect of any information recorded by the Northern Ireland Housing Executive in respect of which it is under an obligation to give access under this Part.

(4) The obligation to give access to information under this Part applies, subject to any exemptions or restrictions prescribed in the regulations, notwithstanding any statutory provision or rule of law prohibiting or restricting the disclosure, or authorising the withholding, of in formation.

Access regulations

5.—(1) The Northern Ireland department which is the relevant department in relation to an authority keeping records containing personal information which is accessible personal information may by regulations make such provision as it considers appropriate in relation to that authority for securing access by individuals to accessible personal information of which they are (or are treated as) the subjects and the rectification or erasure of inaccurate records containing such information.

(2) Regulations under this Article may, in particular, for those purposes—

(a)impose obligations on the authority to give access to accessible personal information in such manner as may be prescribed in the regulations;

(b)impose obligations on the authority to rectify or make erasures in records containing inaccurate information;

(c)provide for exemptions from or impose restrictions on access to informat ion or the rectification or erasure of inaccurate records;

(d)regulate the procedure for obtaining access to information or the rectification or erasure of inaccurate records;

(e)provide for decisions taken by the authority to be reconsidered or reviewed;

(f)authorise the authority to charge fees not exceeding the maximum prescribed in the regulations; and

(g)make incidental and supplementary provision including provision defining the corresponding obligation for the purposes of Article 3(2).

(3) The relevant department shall, before making regulations under this Article, consult such authorities or bodies representing authorities as it thinks appropriate.

(4) Regulations made under this Article shall be subject to affirmative resolution.

PART IIIACCESS TO MEDICAL REPORTS

Interpretation of Part III

6.—(1) In this Part—

“the applicant” means the person referred to in Article 8(1);

“care” includes examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment;

“employment purposes”, in the case of any individual, means the purposes in relation to the individual of any person by whom he is or has been, or is seeking to be, employed (whether under a contract of service or otherwise);

“health professional” has the same meaning as in the [S.I. 1987/1903] Data Protection (Subject Access Modification) (Health) Order 1987;

“insurance purposes”, in the case of any individual, means the purposes in relation to the individual of any person carrying on an insurance business with whom the individual has entered into, or is seeking to enter into, a contract of insurance, and “insurance business” and “contract of insurance” have the same meaning as in the [1982 c. 50] Insurance Companies Act 1982;

“medical practitioner” means a person registered under the [1983 c. 54] Medical Act 1983;

“medical report”, in the case of an individual, means a report relating to the physical or mental health of the individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual.

(2) Any reference in this Part to the supply of a medical report for employment or insurance purposes shall be construed—

(a)as a reference to the supply of such a report for employment or insurance purposes which are purposes of the person who is seeking to be supplied with it; or

(b)(in the case of a report that has already been supplied) as a reference to the supply of such a report for employment or insurance purposes which, at the time of its being supplied, were purposes of the person to whom it was supplied.

Right of access to certain medical reports

7.—(1) It shall be the right of an individual to have access, in accordance with the provisions of this Part, to any medi cal report relating to the individual which is to be, or has been, supplied by a medical practitioner for employment purposes or insurance purposes.

(2) Nothing in this Part applies to a medical report prepared before the coming into operation of this Part.

Consent to applications for medical reports for employment or insurance purposes

8.—(1) A person shall not apply to a medical practitioner for a medical report relating to any individual to be supplied to him for employment or insurance purposes unless—

(a)that person (“the applicant”) has notified the individual that he proposes to make the application; and

(b)the individual has notified the applicant that he consents to the making of the application.

(2) Any notification given under paragraph (1)(a) must inform the individual of his right to withhold his consent to the making of the application, and of the following rights under this Part , namely—

(a)the rights arising under Articles 9(1) to (3) and 11(2) with respect to access to the report before or after it is supplied;

(b)the right to withhold consent under Article 10(1); and

(c)the right to request the amendment of the report under Article 10(2),

as well as of the effect of Article 12.

Access to medical reports before they are supplied

9.—(1) An individual who gives his consent under Article 8 to the making of an application shall be entitled, when giving his consent, to state that he wishes to have access to the report to be supplied in response to the application before it is so supplied; and, if he does so, the applicant shall—

(a)notify the medical practitioner of that fact at the time when the application is made, and

(b)at the same time notify the individual of the making of the application;

and each such notification shall contain a statement of the effect of paragraph (2).

(2) Where a medical practitioner is notified by the applicant under paragraph (1) that the individual in question wishes to have access to the report before it is supplied, the practitioner shall not supply the report unless—

(a)he has given the individual access to it and any requirements of Article 10 have been complied with; or

(b)the period of 21 days beginning with the date of the making of the application has elapsed without his having received any communication from the individual concerning arrangements for the individual to have access to it.

(3) Where a medical practitioner—

(a)receives an application for a medical report to be supplied for employment or insurance purposes without being notified by the applicant as mentioned in paragraph (1); but

(b)before supplying the report receives a notification from the individual that he wishes to have access to the report before it is supplied,

the practitioner shall not supply the report unless—

(i)he has given the individual access to it and any requirements of Article 10 have been complied with; or

(ii)the period of 21 days beginning with the date of that notification has elapsed without his having received (either with that notification or otherwise) any communication from the individual concerning arrangements for the individual to have access to it.

(4) References in this Article and Article 10 to giving an individual access to a medical report are references to—

(a)making the report or a copy of it available for his inspection; or

(b)supplying him with a copy of it;

and where a copy is supplied at the request, or otherwise with the consent, of the individual the practitioner may charge a reasonable fee to cover the costs of supplying it.

Consent to supplying of medical report and correction of errors

10.—(1) Where an individual has been given access to a report under Article 9 the report shall not be supplied in response to the application in question unless the individual has notified the medical practitioner that he consents to its being so supplied.

(2) The individual shall be entitled, before giving his consent under paragraph (1), to request the medical practitioner to amend any part of the report which the individual considers to be incorrect or misleading; and, if the individual does so, the practitioner—

(a)if he is to any extent prepared to accede to the individual’s request, shall amend the report accordingly;

(b)if he is to any extent not prepared to accede to it but the individual requests him to attach to the report a statement of the individual’s views in respect of any part of the report which he is declining to amend, shall attach such a statement to the report.

(3) Any request made by an individual under paragraph (2) sh all be made in writing.

Retention of reports

11.—(1) A copy of any medical report which a medical practitioner has supplied for employment or insurance purposes shall be retained by him for at least 6 months from the date on which it was supplied.

(2) A medical practitioner shall, if so requested by an individual, give the individual access to any medical report relating to him which the practitioner has supplied for employment or insurance purposes in the previous 6 months.

(3) The reference in paragraph (2) to giving an individual access to a medical report is a reference to—

(a)making a copy of the report available for his inspection; or

(b)supplying him with a copy of it;

and where a copy is supplied at the request, or otherwise with the consent, of the individual the practitioner may charge a reasonable fee to cover the costs of supplying it.

Exemptions

12.—(1) A medical practitio ner shall not be obliged to give an individual access, in accordance with the provisions of Article 9(4) or 11(3), to any part of a medical report whose disclosure would in the opinion of the practitioner be likely to cause serious harm to the physical or mental health of the individual or others or would indicate the intentions of the practitioner in respect of the individual.

(2) A medical practitioner shall not be obliged to give an individual access, in accordance with those provisions, to any part of a medical report whose disclosure would be likely to reveal information about another person, or to reveal the identity of another person who has supplied information to the practitioner about the individual, unless—

(a)that person has consented; or

(b)that person is a health professional who has been involved in the care of the individual and the information relates to or has been provided by the professional in that capacity.

(3) Where it appears to a me dical practitioner that paragraph (1) or (2) is applicable to any part (but not the whole) of a medical report—

(a)he shall notify the individual of that fact; and

(b)references in the preceding Articles of this Part to the individual being given access to the report shall be construed as references to his being given access to the remainder of it;

and other references to the report in Articles 9(4), 10(2) and 11(3) shall similarly be construed as references to the remainder of the report.

(4) Where it appears to a medical practitioner that paragraph (1) or (2) is applicable to the whole of a medical report—

(a)he shall notify the individual of that fact; but

(b)he shall not supply the report unless he is notified by the individual that the individual consents to its being supplied;

and accordingly, if he is so notified by the individual, the restrictions imposed by Article 9(2) and (3) on the supply of the report sha ll not have effect in relation to it.

Application to the county court

13.  If a county court is satisfied on the application of an individual that any person, in connection with a medical report relating to that individual, has failed or is likely to fail to comply with any requirement of this Part, the court may order that person to comply with that requirement.

Notifications under Part III

14.—(1) Any notification required or authorised to be given under this Part—

(a)shall be given in writing; and

(b)may be given by post.

(2) In its application to paragraph (1)(b), section 24(1) of the [1954 c. 33 (N.I.)] Interpretation Act (Northern Ireland) 1954 shall have effect with the omission of the word “registering”.

G.I. de Deney

Clerk of the Privy Council

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