TL;DR – just because they ask (nicely) doesn’t mean it’s GDPR consent.
First, clinical consent is not GDPR/data consent
Clinical consent is informed consent for a clinical course of action, such as “Yes, you can amputate my arm”. If doctors don’t get clinical consent from a conscious patient, it’s GBH.
Sharing the medical records required for direct care is implicit from the clinically-consented decision, but that isn’t a GDPR consent – though it is part of the public task of the NHS body providing that surgery.
Both of these situations use the ‘consent’ word, but they actually mean very different things. (We agree that’s not entirely helpful.)
Consent, GDPR, and public bodies
GDPR provides six different legal bases for data use. Consent is the one most often used in the private sector – you technically consent to Facebook’s abuse as part of Facebook’s terms of service.
But GDPR requires consent to be a “freely given”. And, with government bodies providing public services, the power imbalance between a citizen in need and the state is so great that those bodies cannot get meaningful consent. A problem amply demonstrated by #metoo in different arenas
(Given what many experience as social obligation to be on Facebook, whether or not the consent there is meaningful and freely given is an interesting question for others, but outside the scope of this consideration.
The Information Commissioner’s guidance is clear – except in a few highly specific circumstances – public bodies shouldn’t use consent as their legal basis for their public task. Indeed, doing so is probably invalid.
A public body can always ask if you wish to go through a data sharing process that will make your life easier – that’s politeness, not GDPR – but that is not the same as asking you to consent to it processing your data in order to receive a service or benefit. In the most benign of cases, the two may be virtually indistinguishable – but while the first is a meaningful choice that has no effect on the outcome, the other is a requirement of accessing the service and so consent cannot be freely given.
“Give us your data or you don’t get your benefit” isn’t consent. It’s coercion.
Under GDPR, both the process itself and the legal basis for how your data will be used must be clear – even if the organisation processing your data doesn’t ask you whether you want it to or not. Most public bodies will have a lawful basis for processing your data under what is called their ‘public task’ (the private sector version of public task is ‘legitimate interest’). Critically, the process cannot offer you a different outcome if you hand over or allow it to access more personal data – though it is allowed for this to make that same process faster.
It is worth being aware that a public body can ask about your consent, and then ignore your answer and process your data anyway – so long as it has documented that that is what it was going to do, and made sure that the information wasn’t (too) opaque. As some have discovered there are, however, large political and process burdens to doing that…
Why is there confusion?
The same word being used in two different contexts doesn’t help, but another cause is the fundamental lack of clarity on how data is used, and the inaccuracy that comes from the process.
Every bit of data processed by digital government ultimately comes down to someone typing something in via a keyboard and, as anyone who reads Twitter will know, such input may not always make complete sense. Officials are trained to believe that the data is perfect and ignore reality – and it’s the citizen who pays the price, and the most digitally excluded pay first and pay the most.
Every use of personal data by a public body must have a lawful basis, which can be known by the data subject. Those uses can be listed, and should be listed (including, around data sharing, in registers of data sharing agreements). A UK resident should be able to know how their data will be used in advance of dealing with that public service – in practice, in the public services, existing law, process, and safeguards mean that it is not often necessary to do so, as one person’s data should be treated the same as another.
No citizen is expected to sign ‘terms and conditions’ or an ‘acceptable use policy’ when dealing with Government – nor should they be. The private sector uses such mechanisms because their acts are not based in public policy and law (as Facebook has recently shown).
When things go wrong, many of the frustrations representatives and support services feel in handling ‘casework’ are simply hurdles within smokescreens thrown up by those who do not wish informed scrutiny of decisions. We go into such issues further in our recent evidence to the Science and Technology Committee Inquiry on Digital Government
A public body may, as a matter of policy and in politeness to the people it serves, ask whether a citizen is willing for data to be shared with another body; this is not ‘consent’ in the Data Protection terminology – though, if asked and declined, the data sharing must not occur anyway (in which case the ‘consent’ choice would be unfair). Asking the citizen is an offer, and can also be a mandate for the policy, but it is not a basis for legal consent.