LAST UPDATE | 19 May 2020

THE HSE HAS suspended the practice of notifying some employers of test results before the individual employees have been informed.

The Data Protection Commission has confirmed that it has received a number of complaints and queries from people who received the result of a Covid-19 test from managers. 

Such a practice, chief medical Dr Tony Holohan said, was “a breach of someone’s confidentiality. Full stop”.

RTÉ News first reported that where mass screenings of employees have been carried out, the HSE will issue the result to managers – sometimes before staff themselves are informed. 

The HSE said this evening that it would now seek guidance from the Data Protection Commissioner.

In a statement, the HSE said: “The HSE is aware of reports in the media today concerning complaints received by the Data Protection Commissioner in relation to Covid-19 test results notified to employers prior to individuals in certain circumstances.

“The HSE recognises that in normal circumstances employees should receive their test results prior to their employer receiving them. It is only in the most exceptional circumstances that HSE would consider informing an employer of an employee’s test result prior to informing the employee.

“This course of action would only be considered where it was considered essential for the public health good in all the circumstances. This also would be a decision made by Public Health if it was considered in the best interest of the employee or a group of employees at the time, usually in the context of the investigation of an outbreak and limiting onward transmission of infection.”

Data protection issues

Earlier, Dr Tony Holohan said that it would be a “breach of confidentiality” for an individual’s employer to receive a Covid-19 test result before they do. 

Holohan was answering questions from the Oireachtas Special Committee on the Covid-19 response. 

At the same Oireachtas committee today, Chief Executive of the HSE Paul Reid said that ideally, individuals would receive test results first. 

“There may have been a case, and probably one case that we know of, where it was notified, the employer, of a significant number of positive cases.”

“That discretion is for the public health officials to make and the judgement they make,” he said. 

“There are exceptional cases where public health officials have a responsibility and have a derogation in terms of managing a major outbreak and that will be the responsibility that they take in extremely exceptional cases such as in a pandemic,” Reid said in response to questioning. 

“The vast, ultimate majority of all the cases we’ve tested, the result is communicated back through the GP to the individual.”

Graham Doyle, Deputy Commissioner at the Data Protection Commission, said that it “cannot see how it can be legitimised that medical test results of this nature would not be communicated in the first instance directly to each individual staff member whether by SMS text or phone call”. 

The commission, he said, “is in receipt of queries and complaints from individuals who have expressed shock and upset at receiving results via their manager in aggregate settings”. 

“It appears to be the case that at a minimum communication has been unclear to the affected staff members in terms of how the process is being managed,” Doyle said. 

“Given that public health authorities clearly want to maintain the trust of the public in the testing and tracing system and keep people engaging with that system, it is important these issues are clarified and rectified,” he added. 

Testing of staff and residents has been carried out by the HSE in nursing homes across the country in a bid to curb the spread of Covid-19. 

Some large-scale testing has also been carried out at some meat processing plants in response to clusters of cases. 

“It is unclear whether aggregate setting employers assert an obligation to mandatorily test staff based on their own obligations under Health and Safety legislation and employment law,” Doyle said.

“Further, it is not known how the HSE is communicating about testing to such employers and management and consequently what information is being provided in advance of testing to staff members.”

This afternoon, TD Denis Naughten also criticised the practice and said that data protection rights were being ignored by the HSE. 

“The suggestion has been that this was done to overcome a language barrier, but in all instances that I furnished to Minister Harris these were Irish people because most of the foreign employees are afraid to speak up,” he said. 

“The key question here is why did the HSE blatantly disregard very basic data protection laws regarding medical test results?”

“I believe it is because those with responsibility for the management of Covid-19 are left in the invidious position of either waiting weeks for the contact tracing system to inform staff of their results or trying to get the information out quickly in order to reduce the spread of the infection,” Naughten said.