Lateral Flow Testing in Schools and Data Sharing

Last month, the government launched a testing programme for staff in primary, school-based nurseries and maintained nursery schools.

The guidance specifies that:

  • Testing is not mandatory for staff and staff do not need to provide proof of a negative test result to attend school or nursery in person, although participation in testing is strongly encouraged.
  • Staff must report their result to NHS Test and Trace as soon as the test is completed either online or by telephone as per the instructions in the home test kit.
  • Staff should also share their result with their school or nursery to help with contact tracing.

In line with the principle one of the GDPR, which states that processing of data should be lawful, fair and transparent,  schools should ensure that they inform staff that they might be required to share information about staff with a positive result with the NHS Test and Trace where required.

Responding to the Coronavirus advice from the Government is a legal obligation for all schools in England and data will be shared on the basis that this is a Public Duty and where health data is necessary for the public interest as defined below:

“The law on protecting personally identifiable information, known as the General Data Protection Regulation (GDPR), allows Public Health England to use the personal information collected by NHS Test and Trace. The section of the GDPR that applies is: Article 6(1)(e) ‘processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller’. As information about health is a special category of personal information, a further section of the GDPR applies: Article 9(2)(i) ‘processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of healthcare’ Public Health England also has special permission from the Secretary of State for Health and Social Care to use personally identifiable information without people’s consent where this is in the public interest. This is known as ‘Section 251’ approval and includes the use of the information collected by NHS Test and Trace to help protect the public from coronavirus. The part of the law that applies here is Section 251 of the National Health Service Act 2006 and the associated Health Service (Control of Patient Information) Regulations 2002.”

Further information on Lateral Flow testing can be found on  the Government website

Please remember to consult your DPO or EDPO if you buy into the local authority service for further guidance on lateral testing and data sharing.