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Concerns raised about health records under Data Protection Act

BY ALPHEA SAUNDERS
Senior staff reporter
saundersa@jamaicaobserver.com

Thursday, November 14, 2019

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THE joint select committee (JSC) which is reviewing the 2017 Data Protection Act, the Ministry of Science Energy and Technology (MSET), and the Ministry of Justice are mulling over provision in the legislation which makes it unlawful for employers to ask employees to supply health records as part of the terms of their contract.

Legislators expressed discomfort with the provision at yesterday's meeting of the JSC. They noted that for some jobs, it may be critical for employees to disclose their health status in situations where others may be put at risk.

Member of Parliament for St Andrew South Mark Golding questioned whether the provision should exclude some persons in particular jobs: “Should there be an exception... for example [for] a pilot or anybody who is handling sensitive equipment? Should the (data) commission be able to say this shouldn't apply in that instance. There are certain sensitive posts that really require disclosure of your health status to the employer [but] it's only where it's not relevant it shouldn't be allowed.”

Golding also pointed out that whilst the provision makes it unlawful for the data to be required as part of a person's employment contract, it does not address any requirement for the information as a condition for employment.

He said this could, therefore, mean that persons would be barred from job opportunities if they do not comply with the request, for insurance purposes, for example.

“It wouldn't be a term of the contract so in a way you can get around it by simply having that as a policy, so these conditions that are precedent to getting through the door, wouldn't be caught by this. If the idea is that you want to stop employers from requiring people to disclose private medical information (as part of their contract) then this would have to be broadened to say that a prospective employer should not require that information (as a condition of employment),” he pointed out.

Jamaica Aids Support for Life, in its comments on the provision, has also expressed its own misgivings, pointing out that there is widespread practice in the insurance industry for persons to disclose their HIV status as a condition of coverage.

The support group is proposing that the provision should include specific reference to insurance companies, barring them from requesting that medical information.

Golding argued, however, that as part of the pricing mechanism for insurance premiums insurers need to be able to assess the risk being underwritten.

Chief technical director at the Ministry of Science Energy and Technology Wahkeen Murray, argued that without the provision the work of the data commissioner could be hampered by several existing pieces of legislation that have secrecy provisions.

But director of legal reform in the justice ministry, Maurice Bailey, said there was some cause for concern, arguing that the provision was too sweeping.

“As this stands, it would affect even the Official Secrets Act although that is overdue for review. Until the Parliament takes serious a look at it, if it is that the commissioner seeks to enforce powers under what is proposed in this Bill, then the commissioner has powers to do so. If an entity refuses to turn over information that the commissioner has powers to request the courts are available to the commissioner to pursue that,” Bailey stated.

The veteran attorney also cautioned against importing legislation from other jurisdictions and applying them here without contemplating the legislative framework in those jurisdictions.

“This (provision) follows a provision which is found in the UK Data Protection Act. When we have legislation where we use a template from another jurisdiction we have to be careful we don't run the risk of taking something out of an entire (legal) regime that may exist in that jurisdiction,” he said.

The JSC and MSET are contemplating whether Clause 66, along with Clause 65 of the Bill, should be combined to create a broader, more effective provision.


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