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Ann R Coll Surg Engl (Suppl) 2013; 95: 238240

TRAiNEES fORUM

We welcome orgnal artcles for

the Tranees Forum on any suject

of nterest to surgcal tranees

(maxmum 1,500 words). We wll

also consder letters commentng on

artcles pulshed n the Tranees

Forum. Please emal sumssons to

ulletn@rcseng.ac.uk.

Mantanng a record of procedures performed s an essental component of surgcal

practce ut the rsks assocated wth handlng patent data are not always apprecated.

vesey et al prode clear gudance on the mplcatons that legslaton goernngsenste data hae for tranees. They outlne steps that the nddual can take to make

sure that they use resources such as the eLogook safely and comply wth wth the

Data Protecton Act.

Bjan Moara

Seres Edtor

The pan-specaty surgca

elogbook, mantane by The Roya

Coege o Surgeons o Enburgh

(RCSE) on beha o the our roya

surgca coeges, s now the de

facto too or a surgca tranees.The coeges ssue new terms an

contons at about the same tme

that genera surgca tranees were

obge to transer to the elogbook

rom the prevousy manate

intercoegate Surgca Currcuum

Programme ogbook. Some o

the causes wthn the terms an

contons gave rse to concern,

an severa tranees contacte the

Assocaton o Surgeons n Tranng

(ASiT) to seek clarifcation.

in ths artcle, we hae undertaken

to briey review the most pertinent

legslate ackground and to address the

concerns that arose. Data goernance

n medcne s a large, expandng and

complex ssue and ths monograph s

necessarly narrow n scope. A Jont

Surgcal Colleges Data Goernance

Commttee has recently conened and

s examnng the ssue, wth road terms

of reference on ehalf of all fellows and

memers of the surgcal colleges.

Backgroun

The expresson dgtal reoluton s not

hyperole. Our alty to use computers

to process and transfer ast quanttes of

nformaton almost nstantaneously has

had truly unfathomale consequences.

indeed, as n many domans, computng

has led to a paradgm shft n the world

of medcne; from electronc patent

records all the way to the affordale

and rapd sequencng of an nddualsentre genome (somethng that was

unmagnale 20 years ago). The lst of

examples s endless. These adances

have undoubtedly brought great benet,

ut as wth so many new dscoeres,

other consequences aound. in medcne,

two of the man concerns centre on

data securty and accuracy and the

implications for patient condentiality

and safety. These two concerns are at the

root of the prolem that legslators hae

to contend wth alancng the rghts of

the nddual to control access to ther

personal data aganst the socetal alue

of so-called g data and the rghts and

responsltes of those who hold and

control that data.

in an attempt to strke ths alance, much

legslaton has een drafted and enacted

n the EU and the UK durng the past

30 years. The most recent and germane

pece of UK legslaton s the Data

Protecton Act (DPA) of 1998.

The data Protecton Act 1998

Key Defnitions

> Data subject the identiable

nddual to whom personal

data pertan.

> Data controller any entty

(nddual or organsaton) that

determnes how personal data

are processed.

> Personal data any data that can

e lnked to a lng nddual.

This denition also applies topseudonymsed or lnked-anonymous

data when the data controller has the

means to decrypt such data.

> Senste personal data any

personal data relatng to race,

ethncty, poltcal opnon, relgon,

health, sexual lfe, actual or alleged

crmnal record.

Although complex, the DPA n essence

ensures that personal data s handled

correctly. it sets out to achee a

alance etween protectng the rghts

of the nddual to mantan control of

ther personal data and the rghts of

organsatons to use such data legtmately

wthout undue regulatory strcture.

It achieves this in two ways: rst, the

act places certan olgatons upon data

controllers and, second, t enshrnes

certan rghts for data sujects (that

manly relate to data access, qualty

and use). The whole act s ased upon

eght prncples:

1. Personal data shall e processed

farly and lawfully.

2. Personal data shall e otaned only

for lawful purposes.

data protecton an the elogbookAT Vesey brtsh Heart Foundaton Centre for Cardoascular Research, Unersty of Ednurgh

JEf ftzger a Royal College of Surgeons of England, Assocaton of Surgeons n Tranng

A lamb Royal College of Surgeons of Ednurgh

DOi: 10.1308/147363513X13690603820748

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THE ROYAL COLLEGE OF SURGEONS OF ENGLAND BUllETiN

3. Personal data shall be adequate,

relevant and not excessve.

4. Personal data shall be accurate and

up to date.

5. Personal data shall not be kept

for longer than s necessary.

6. Personal data shall be

processed n accordance wth

the rghts of data subjects.

7. Data shall be held and

processed securely.

8. Personal data shall not be

transferred to another countrywthout adequate protecton.

A key theme s consent. in most

cases, the consent of the data subject

should be sought before processng

personal data. in the case of senstve

personal data, obtanng explct

consent s nearly always mandated.

indvduals or organsatons actng as

data controllers must be regstered

as such wth the informaton

Commissioners Ofce (ICO).

The dPA an the elogbook

The eLogbook s a large database

holdng vast amounts of apparently

senstve personal data pertanng to

mllons of people. in order to ensure

full complance wth the DPA, a number

of measures were nsttuted ncludng

the release of the aforementoned

terms and condtons. it should be

noted at the outset that the actual

servers that host the eLogbook

(and iSCP databases) are housed

and mantaned by a company wth

the approprate expertse that has

a contract wth the colleges and the

Jont Commttee on Surgcal Tranng.

Here follow the clauses that gave

rse to concern, accompaned n each

case by a bref analyss and answer.

A lnk to full terms and condtons can be

found at the end of the artcle.

Clauses 1.8, 11.1, 12.1 and 12.7

These clauses relate to the colleges

and users oblgatons as stakeholders

n the eLogbook. The colleges,

as admnstrators of the logbook,

are clearly dened as data controllers

as specied by the DPA but it is

not necessarly clear whether

users should smlarly regster wth

the iCO as ndvdual data controllers.

Two points are relevant. The rst

relates to the ndvdual users employer.As an NHS employee or ndeed a

unversty-employed research fellow, an

ndvdual wll be requred to process

senstve personal data on a daly bass

and therefore wll qualfy as a data

controller. Strctly, n these nstances,

the employer will have notied the

iCO and therefore the employee s

n t heory automatcally covered. if,

however, any data s prvately collected

and processed then an ndvdual s not

covered by the employers notication.

The second pont relates to whether data

collected on the logbook actually count

as personal data. it could be argued

that they do not as no mmedately

identiable information elds are

completed. However, referrng to the

denition of personal data, if the data

controller n queston has the means

to lnk anonymous data back to an

ndvdual (easly done wth a Communty

Health index or hosptal number)then such data do ndeed qualfy as

personal data and a user should notfy

the iCO. Furthermore, n the case of

senstve personal data (e all the data

on the logbook), explct and nformed

consent should also be obtaned before

collectng such data. Gven that falure

to comply wth the oblgatons as set

out by the DPA consttutes a crmnal

offence, should all users of the eLogbook

therefore regster wth the iCO as data

controllers and obtan explct and

nformed consent for every patent

they operate on? is ths realstc?

The royal surgcal colleges legal team has

conrmed that those who record or use

personal data or senstve personal data

n a self-employed capacty (e outsde

of ther employment wth the NHS or

universities) will need to be notied with

the iCO as data controllers. Gven that

most tranees wll at some stage assst

ther consultant traners n the prvate

sector and that many wll tran wthn

ndependent sector treatment centres

(iSTCs) outsde the NHS, regsterng

wth the nformaton commssoner as

a data controller should be regarded as

mandatory. Furthermore, data collected,

processed and retaned by an ndvdual

durng a perod of transent employment

wth a unversty (e as a research

fellow) may also fall out of the remt of

the universities ICO notication once

such employment ends. Ths should be

regarded as another absolute ndcatonfor individual notication. It should,

however, be noted that personally

retanng non-anonymous

(e lnked-anonymous or pseudonymous)

personal research data on laptops or

personal computers s not advsable.

if strctly necessary, these data

should be properly encrypted.

Ganng wrtten, explct consent from

prvate or iSTC patents for collectng

logbook data s a must. Although t s thecase that ths s not strctly necessary

for NHS patents, there s a strong

deontologcal argument for dong so;

the standard should apply to all patents.

Ganng such consent s also consstent

wth the sprt of the DPA as well as

General Medcal Councl gudance on

the matter. A tranee should always

meet a patent before partcpatng n

ther surgery. Most consent forms

now have a eld relating to data

collecton and audt; a few extrawords about the need to mantan

a logbook for tranng shouldnt

represent a signicant burden.

Clause 6.3

To the fullest extent permitted by law, we

shall not be liable, including for any indirect,

special or consequential loss or economic

damage (such as without limitation loss of

bargain, prot, data, reputation, placement,

position, learning agreement, resultant

losses or otherwise), and whether in

contract, tort, or otherwise, arising out of

the use of the website or the reliance on

any of the information displayed on it.

Ths clause lmts the lablty of the

colleges for user actvtes. There had

been concern that ths was a way of

lmtng the colleges lablty n the

event of data loss (by the webste) and

the professional difculties for the user

that would arse as a consequence.

The royal surgcal colleges legal team

have gven assurances that ths does

not relate to data loss but rather the

qualty of the data on the webste.

As the colleges are not themselves

enterng patent data, data are ever-

changng and there s an ever-present

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THE ROYAL COLLEGE OF SURGEONS OF ENGLAND BUllETiN

rsk of llegtmate access, t s evdently

not possble to track and qualty control

all of the content all of the tme. The

colleges therefore cannot reasonably be

expected to assume lablty for llegal

or rresponsble use. Such dsclamersare standard practce for webstes.

Several tranees h ave therefore enqured

whether keepng a personal backup of

ther logbook would be advsable.

The ofcial legal advice is that this is

not advsable. A meanngful personally

controlled logbook could clearly not be

truly anonymous as recordng outcomes

would become mpossble and the rsk

to the ndvdual of losng data or t beng

accessed by a thrd party would not bensubstantal. Furthermore, the company

to whch the colleges sub-contract

the physcal runnng of the eLogbook

and iSCP data has robust securty

arrangements, sophstcated back-up

systems and a very clear nformaton

governance framework n place.

There are many examples of doctors

gettng nto serous trouble wth

respect to data loss, commonly as

a result of lost laptops or droppedash drives. However, if a trainee

is notied with the ICO, has adequately

encrypted the data and has ganed

consent, mantanng a prvate logbook

s entrely legal and many may

opt to do ths n addton to

mantanng ther eLogbook database.

Cauton s, of course, advsed.

A further queston that arose relatng to

ths clause concerned the lablty of the

ndvdual user n the event of data beng

accessed by a thrd party, ether by accdent

or malcous ntent. The surgcal colleges

legal team have emphassed that userlablty would only arse f such a breach

had occurred as a result of the users own

falure to take reasonable securty steps

(for example, not dsclosng passwords,

etc). indvduals would not be lable were

the colleges or some other entty at fault.

The team also noted that enforcement

actions and nes for breaches of the DPA

are unlkely to arse unless there has been

substantal damage and dstress caused as a

result (for example, loss of a large database

of personal data).

Clause 12.3

Special care must be used when

inputting data in any free elds, including

for other informationaccordingly.

Questons arose relatng to whch

data ths referred to. The formal

advce s to strctly avod nputtng

any data that mght lnk the entry

to an ndvdual (addresses, telephone

numbers, names). Further clncalor operatve detals are acceptable.

Notfyng the iCO of status as ata

controer

Ths can be done onlne by usng the

lnks quoted at the end of the artcle.

There s a self-assessment tool that

will recommend notication. The New

Notication icon then needs to be

selected and nstructons wll follow.

There is a specic template for junior

surgeons usng the eLogbook (N955) to

follow. The annual fee s 35.

Summary

The oblgatons placed upon ndvduals

by the DPA are strct and probably

not apprecated by many eLogbook

users. All tranees are strongly advsed

to notfy the iCO of ther status as

data controllers.

Ganng explct, nformed and wrtten

consent to collect data for the purposes

of logbook mantenance should now

be encouraged.

Mantanng a detaled personal logbook

of operatons wth outcomes wll

appeal to many tranees and s an am

that should be commended. Cauton s

advsed, however ndvduals should

ensure that they are notied with the

iCO, famlar wth the DPA and encrypt

the data adequately.

Usefu lnks

intercoegate elogbook Termsan Contons:

www.elogbook.org/ste/2903/default.aspx

How to notfy the informaton

Commissioners Ofce:

www.co.gov.uk/for_organsatons/data_

protection/notication.aspx

Assococaton of Surgeons webste:

www.asit.org and @ASiTOfcial on Twitter

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240

http://www.elogbook.org/site/2903/default.aspxhttp://www.ico.gov.uk/for_organisations/data_http://www.asit.org/http://www.bris.ac.uk/prospectus/postgraduate/2013http://www.bris.ac.uk/prospectus/postgraduate/2013http://www.asit.org/http://www.ico.gov.uk/for_organisations/data_http://www.elogbook.org/site/2903/default.aspx