Confidentiality of information relating to student disability and health

Confidentiality of information relating to student disability and health

1. Policy

1.1 Sheffield Hallam University is committed to the principle of inclusion. All reasonable steps are taken to ensure that students are not disadvantaged because of a disability as defined by the Disability Discrimination Act.

1.2 To meet this aim, students are encouraged to disclose relevant information relating to their disability so that the University is able to make reasonable adjustments as required by the Act.

1.3 The University recognises the right of students to choose not to disclose such information or to seek to limit its further disclosure. However, the health and safety of staff and students is paramount and there may be situations where an evaluation of potential risks would necessitate disclosure in order to make appropriate adjustments.

1.4 In such exceptional circumstances, as allowed by law, disclosures would be made to other members of staff or third parties, without the consent of the student concerned. These exemptions are included within the Data Protection Act. The most significant are those which relate to the health and safety of others or to the vital interests of the student concerned, including situations where the student is perceived to be at risk.

1.5 If a student wishes to make a disclosure, they are encouraged to do so as early as possible to the Disability Coordinator within their Faculty. However, it is accepted that they may prefer to make a disclosure to another member of staff they know.

1.6 The member of staff concerned should discuss with the student who else should be informed, what they should be told and who should pass on that information. The staff member should only make such disclosures as have been agreed with the student.

1.7 If the staff member is concerned that failure to pass on information puts either the student or others at risk, this concern, without divulging the identity of the student, should be raised with the Disabled Student Support Team Manager. The DSST Manager will then refer the matter to the University Secretary’s Office.

1.8 Only the University Secretary or nominee may give permission for a disclosure to be made without the consent of the student.

2. Legal background

  • 2.1 Relevant legislation
  • 2.1.1 Health and Safety at Work Act 1974
  • 2.1.2 Disability Discrimination Act 1995
  • 2.1.3 Disability Discrimination Act Part 4 2001
  • 2.1.4 Disability Discrimination Act (Amendment) Regulations 2003
  • 2.1.5 Disability Discrimination Act Part 2 (Employment Code) 2004
  • 2.1.6 Data Protection Act 1998
  • 2.1.7 Human Rights Act 1998

2.2 The Health and Safety at Work Act 1974 (HSAWA) makes provision for securing the health, safety and welfare of persons at work. The risk assessment process carried out to comply with health and safety legislation may provide an opportunity to consider adjustments required by the DDA.

2.3 The Disability Discrimination Act Part 4 2001 (DDA) requires universities to make reasonable adjustments for disabled persons and to take anticipatory action in doing so. The Act defines ‘disability’ as ‘a physical or mental impairment which has a substantial and long-term* adverse effect on his/her ability to carry out normal day-to-day activities’.
(* ‘substantial’ is defined as not minor or trivial; and ‘long-term’ means twelve months or more)

2.4 These legal requirements on the University as an employer must, however, be balanced against those which oblige organisations to respect the confidentiality and privacy of individuals. Under the Data Protection Act 1998 (DPA), data relating to an individual’s ‘physical or mental health or condition’ is included in the definition of ‘sensitive personal data’. This includes information about a physical or mental disability as defined by the DDA.

The DPA states that sensitive personal data cannot be disclosed, unless one of the following conditions applies:

  • explicit consent
  • employment law
  • vital interests of the data subject or another person
  • legal obligations
  • legal proceedings
  • administration of justice
  • medical purposes (normally applies to health professionals only)
  • the information has deliberately been made public by the individual.

Furthermore, Section 10 of the DPA gives individuals the right to ask the University (in writing) as the Data Controller 'to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he/she is the data subject' on the grounds that the processing may cause 'substantial damage or distress to him/her or to another and that damage or distress is or would be unwarranted'. This right is subject to certain exemptions where:

  • the data subject has previously given his/her consent to the processing
  • the processing is necessary for the performance of a contract to which the data subject is a party, or for the taking of steps at the request of the data subject with a view to entering into a contract
  • the processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract
  • the processing is necessary in order to protect the vital interests of the data subject.

This is reinforced by the DDA Section 28T(3) which requires educational institutions to take into account a 'confidentiality request' whereby a disabled person 'asks for the nature, or asks for the existence, of his disability to be treated as confidential'.

It is only in rare circumstances, therefore, that the University should disclose sensitive personal data about a student without the individual’s consent or where consent had been denied. The most likely situation would be one where a significant risk to the health or safety of the individual student, members of staff or other students was identified. Generally, the duty of confidentiality would outweigh any other legal obligations to disclose confidential data regarding a student’s disability.

In other words, if a student does not want his or her disability disclosed, that wish must be respected even if this means that reasonable adjustments cannot be made for that student and that they may be disadvantaged in some other way.

3. Further information and complaints

3.1 For further information about the support available to disabled students, disability issues and disability related legislation, please contact the Disabled Student Support Team

3.2 For further information and complaints relating to data protection issues please contact the Data Protection Officer, University Secretariat, tel 0114 225 3361

3.3 Student complaints policy and procedure [93kb PDF]

3.4 Further information is also available from:

Disability Rights Commission
Telephone 08457 622633
Textphone 08457 622644
Fax 08457 778878
Post: DRC Helpline, FREEPOST MID02164, Stratford upon Avon, CV37 9BR

Information Commissioner
Telephone 01625 545745
Fax 01625 524510
Post: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF