The Board was hit with a £70,000 penalty for sending a patient's medical report, featuring what is described as "explicit details" regarding that person’s health, to the wrong person in March 2011.
The error occurred when a consultant emailed a letter to a secretary for formatting, but failed to include sufficient information for the secretary to identify the correct patient. The doctor also misspelt the name of the patient at one point, which led to the report being sent to a former patient with a very similar name. The latter accordingly received a detailed psychological report about a mental health patient.
The Office concluded that neither of the two Health Board staff involved in the incident had received data protection training. It also concluded that the Health Board did not have adequate checks in place to ensure that personal information was sent to the correct person.
In discussing the breach, the Office publicly reminded the NHS that it “holds some of the most sensitive information available ... it is therefore vital that organisations across this sector make sure that their data protection practices are adequate". On to the next data breach report, as leaks aren't only found among the leeks.
The penalty contrasts with those in the US incidents, which amounted to around US$1 per person rather than the £70,000 per person.
In Hanna v Police [2012] NZHC 218; [2012] NZAR 129 the High Court states
[1] Clyde the pound dog dodged a bullet. But he could not dodge the council dog catcher when Mr Hanna let his registration expire. So back to the pound went Clyde. Mr Hanna went to look for Clyde. He found him at the pound. It was shut, but Clyde could be heard howling above the din of the other dogs. He was, Mr Hanna said, very upset. And Mr Hanna himself became distressed. As he said in evidence: “My dog is up, up the pound. He is howling. He‟s away from home.”
[2] Mr Hanna‟s objections were not merely emotional. They also had an intellectual dimension. Based on his reading of some legal tracts of a fringe nature, he believed the council had no legal right to detain Clyde. It had in effect stolen Clyde. His counsel endeavoured to explain these legal theories to me. It is no criticism of Mr Holdaway, and perhaps a commendation, that this exercise rather defeated him. In the end I allowed Mr Hanna to explain them himself.
[3] Mr Hanna believes that as a result of maritime law a distinction exists in civil law between the artificial or corporate person (recognised by such law) and the natural person. He understands that the natural person has an option whether to contract with the state or not. And that to make the distinction clear in dealings with the state, the natural person should apparently make clear that he is not representing the artificial person. This is what Mr Hanna believes. Its upshot, apparently, was that he need not register his dog. These views, genuinely held no doubt, have no proper foundation in law. In the first place, Clyde the pound dog is neither ship (subject to maritime law) nor person (natural or artificial). Secondly, nothing could be much clearer than s 5(1)(a) of the Dog Control Act 1996 (which requires a dog owner to ensure the dog‟s registration) or s 52(3) of the same Act (which authorises the impounding of an uncontrolled dog).
[4] Mr Hanna‟s views on the state of the law made little better impression on the council dog catcher than they did on me. After what he described as an “unsatisfactory meeting” with that official, Mr Hanna went down to the police station to lay a complaint that his dog had been stolen.
[5] His first contact was with the watchhouse receptionist. After listening to his complaint, she told Mr Hanna that it was not a police matter but “an animal control issue or a Marlborough District Council issue”. This she had to do repeatedly, as Mr Hanna was unconvinced. The discussion became loud. It interrupted an interview by a constable of some complainants at the other end of the room. So the constable came over and had what he described as a “very brief” discussion with Mr Hanna: I ended up intervening, um, intervened and discussed the issue with him, um, very briefly, um, once again repeating what the female staff members had told him, that, um, one, it was – if it‟s – his unregistered dog that had been taken away by animal control was not a police matter, it‟s a animal control matter. Um, then he brought on the fact that, “Oh, then who gives the animal control their power?” I said, “You could speak to the Marlborough District Council as they fall under them.” Um, but he was unwilling to accept that as he believed that it was unlawfully taken as though it was stolen.
[6] Mr Hanna cross-examined the constable: Q If someone commits an unlawful act, officer, is it your job to respond to it? A Yes, absolutely, yeah. Q It is? A Absolutely. Q Well, then, can you answer me why, when I went in to lay a complaint about the Council being unlawful and committing an unlawful act, you were not willing to listen to me? A Because it wasn‟t an unlawful act. The constable could not say how the council had the power to detain Clyde. He just knew it could.
[7] Mr Hanna showed no inclination to accept the advice. He said something like, “This is an unlawful arrest ... I am a human being, I choose not to represent the person (sic)”. He was probably saying “artificial person”, but the distinction (such as it is) was lost on the constable. The constable considered his conduct was disruptive and disorderly, although there was a dispute on the evidence about that.
[8] There was no dispute about what happened next. The constable asked Mr Hanna to leave the station. He gave him due warning that if he came back he would be arrested under the Trespass Act 1980. He escorted Mr Hanna from the station. Mr Hanna left quietly. But after having a smoke and thinking about Clyde‟s continued incarceration and distress, Mr Hanna returned to the police station. He said in evidence he returned “out of an act of conscience” to “further his case with the policeman”. He was warned he could be arrested. He replied that the constable “would have to arrest [him] then”. Which is precisely what then happened.
District Court judgment
[9] Mr Hanna was convicted on a single charge of trespass after being warned to leave, pursuant to s 3 of the Trespass Act 1980, in the Blenheim District Court on 15 December 2011.
[10] Mr Hanna acted for himself at trial. The Judge noted his defence was that his actions were “an act of conscience” in relation to his dog. However, the Judge was satisfied beyond reasonable doubt that Mr Hanna was trespassed, that the constable acted fairly in that he was trying to deal with some other complainants, and the way the defendant was conducting himself was interfering with that. He did not consider Mr Hanna was acting maliciously or outrageously. But he was certainly “impacting” on the constable‟s ability to take a complaint from other people. The Judge considered no statutory defence could be made out on the balance of probabilities that it was necessary for Mr Hanna to remain in the police station.
[11] The Judge convicted Mr Hanna. He ordered him to come up for sentence, if called upon, within the next 12 months.
Appeal
[12] Mr Hanna appeals that conviction on the basis the Judge erred in failing to consider the possibility of there being a common law defence of honest belief that he had a right to remain in the police station.
[13] Mr Holdaway submits that Mr Hanna had an honest belief that he had a right to remain in the police station while the police dealt with his complaint. In evidence he stated he “went to the police to lay... a complaint, which – whether I was right or wrong, I thought under the laws of this country, I was allowed to do.” He submits this establishes an evidentiary foundation for honest belief. And that it is for the prosecution to prove beyond reasonable doubt that Mr Hanna did not hold such a belief.4 It is submitted, also, that an honest belief need not be reasonable.
Crown submissions
[14] The Crown relies on the analogous decision of Heke v Police and submits there was no evidential foundation for an honest belief. It is accepted the appellant had the right to go to the police station to make a complaint. The appellant exercised that right by speaking to two members of the staff there. They both listened to his complaint but, contrary to his views, advised him it was not a police matter. Rather, it needed to be raised with the council. The appellant was dissatisfied with how his complaint was handled. His return to the station, well aware of the consequences, was a protest, rather than being based on any honest belief that he was allowed to remain there. He made a deliberate choice to ignore the warnings given him. ... [
22] Heke v Police is the most relevant precedent. It is a decision of French J. In January 2008 a busking festival was being held in Cathedral Square, Christchurch. Mr Heke was an amateur street busker. He performed a “wizard act”. That describes its subject matter rather than its quality: Mr Heke said it was more “begging than busking”, so presumably its quality was not up to much. However it was enough to incense other buskers. They had had to pay for their busking permits and they objected to the presence of an unlicensed competitor. Even a bad one. One of them told Mr Heke to be off, or the police would be called. Mr Heke would not go. The police were called. A constable told him to stop what he was doing or he would be removed. He challenged the power of the police to remove him. The constable wandered off after that, distracted either by more egregious conduct elsewhere or better busking. Mr Heke then went to the police kiosk in the Square to make a complaint. It concerned his treatment by both the other busker and the constable.
[23] The police considered there was no substance in Mr Heke‟s complaint and asked him to leave. Mr Heke refused to do so and was subsequently charged with trespass. It will be seen that these facts are directly analogous to the facts in the present appeal. Before French J it was alleged that the District Court Judge had failed to have regard (or sufficient regard) to the possibility of a defence of honest belief. For Mr Heke it was submitted that he honestly believed he was entitled to stay at the kiosk until his complaint was dealt with appropriately.
[24] French J found however that:
... the appellant stayed not because he believed in a state of affairs or fact which if correct would have meant he was entitled to stay, but because he was dissatisfied with the way the officer had dealt with his complaint. It was a protest.
[25] It is clear that the fact that the continuing presence is a protest does not of itself exclude the defence. But what is required is a genuine belief in facts or circumstances that would make that presence lawful, despite the warning off. In Police v Cunard, for instance, the pubgoer had a genuine belief that he was not so intoxicated that his implied licence to remain on licensed premises was determinable by the publican. It was primarily a factual belief.
[26] But the defence does not enable an accused to set up an honest belief defence where the only relevant belief is one of law, on which the accused is in error. This is made clear in the decision in Police v Shadbolt. That was a decision of Wilson J under s 3 of the 1968 Act (which included the word “wilful”). The circumstances were somewhat similar to those in the present case. The appellant had called at the offices of the St John Ambulance Association in Auckland. He wanted to know the names of the ambulance driver and nurse who had attended an incident in which his wife had been injured. The St John policy was not to disclose such information except to the police or a solicitor. Mr Shadbolt was politely refused the information he sought. He nonetheless insisted he had the right to the information. The St John superintendant was summoned. He inquired into the issue and eventually required the appellant to leave the premises. This he refused to do. He claimed an entitlement to the information and a right to stay until it was supplied. The police were called and Mr Shadbolt eventually was arrested. After referring to the English Court of Appeal decision in R v Collins Wilson J said: In the instant case, the appellant believed he had the legal right to remain in the Association‟s office until he had been given the information that had been denied him. He was under no genuine mistake about the factual situation, only about his legal rights in that situation. His trespass was, therefore, wilful, and he was rightfully convicted.
[27] That was the position in Heke also. The accused there believed that he had a right as a matter of law to remain at the kiosk until his complaint was processed. As a matter of law he did not.
[28] In my view, a similar result must follow in this case. Mr Hanna‟s views are unquestionably genuine. But he is no master of the law. He was not entitled to leave his dog unregistered. The council were entitled to impound Clyde. It had not stolen him. There was nothing done by the council Mr Hanna could complain about to the police. The watchhouse receptionist told him that. So did the constable. They were entirely correct in what they said to Mr Hanna, even if they were unable to cite, impromptu, the relevant provisions of the Dog Control Act 1996. There was no basis in law for Mr Hanna to be entitled to return to the police station after he had been given his s 3 warning off.
[29] The appellant did not return because he believed in a state of affairs which, if correct, meant he was entitled to stay. Rather, he was dissatisfied with the reception of his complaint. I agree with the Crown‟s submission that this is more characterised as a protest - although, as I have said, that alone would not displace the defence. What is missing altogether is any factual premise on which Mr Hanna was in error. His errors were that the council had “stolen” his dog (it had not) and that he had a right to remain at a police station to persist in that mispremised complaint despite being warned off under the Trespass Act 1980 (he did not). Both are essentially errors of law.
