Health and Care Bill — House of Lords, 2022-01-26
Topic: Health
Sarah Virginia Brinton (Liberal Democrats, Centre to centre-left): My Lords, this probing amendment from the noble Lord, Lord Hunt, is essential, because it protects confidential patient data from being given out by an ICB in contravention of the ethics rules of the General Medical Council and other regulatory bodies When the Police, Crime, Sentencing and Courts Bill arrived in your Lordships’ House in the autumn, it had clauses in it that gave the police, probation and prison services access to a patient’s confidential medical data as part of their role to reduce and prevent serious violence. As originally drafted, that Bill would have required GPs, CCGs and their staff to hand over that data. This was not just about those under suspicion; it could have been anybody involved in serious violence I had extreme concerns about this, and I tabled an amendment not dissimilar to Amendment 145. I was grateful for the support of the noble Lords, Lord Patel and Lord Ribeiro, the General Medical Council, the BMA and others in Committee on that Bill. We had meetings between Committee and Report with officials from the Department of Health and the Home Office, meaning that by the time we got to Report the Government had laid amendments to ensure that a patient’s personal data could not be demanded by the police, probation and prison services. It is now recognised that the medical regulators—the GMC, the Nursing and Midwifery Council and other bodies—actually have the responsibility and the excellent ethical standards by which their members are expected to judge what they should do if they are asked for personal data The amendment from the noble Lord, Lord Hunt, would address what data an ICB may disclose by adding a subsection to protect the Government in the same way as happened in the police Bill, so that the personal data of patients should not be disclosed. This is a vital amendment. The Government have already accepted in this Parliament that a patient’s personal data must not be accessible by those other than clinical and clerical staff dealing with it, who must abide by the confidentiality rules of their regulatory body or by their employment contract This is even more necessary, because the Bill says in new Section 14Z61(1)(g), on permitted disclosures of information, that "the disclosure is made in connection with the investigation of a criminal offence" That is even broader than in the original police Bill. Patient confidentiality is a fundamental ethical duty. It is crucial to upholding the trust that lies at the heart of the doctor-patient relationship. The new section will give the ICB the right to override that New paragraph (e) is also more far-reaching than the investigation of any crime. It says that "the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have the information for the purpose of exercising functions of that person under any enactment" So it is not the doctor or the ICB that has the choice about disclosing that information; they must take the word of the person making that request. That is total free access for anyone who says that it is necessary or expedient for them to have that information. Where is the protection of a patient’s individual and confidential data It also removes the decision from GPs, despite GPs having very clear and effective guidance from the GMC on when, in exceptional circumstances, they can give out data. I will not quote the whole of the guidance, because we do not have time, but there are two vital points that a GP must consider: the patient must consent, whether implicitly or explicitly; and disclosure must be permitted or must have been approved under a statutory process that sets aside the common-law duty of confidentiality. The doctor also has a duty, even when they have made their decision, to use anonymised information if practicable, and they must be satisfied that the patient has ready access to information explaining how their personal information will be used. It goes on, but I will not quote the rest One might hope that Ministers assumed when drafting the clause that confidential patient data would never be included, other than for the treatment of the patient. However, paragraphs (e), (g), (h) and (f), as the noble Lord, Lord Hunt, outlined, put paid to that. If the argument is that the clause is needed because the ICB might have to share data with, for example, care providers or social workers carrying out assessments, that needs to be made clear, and it would be permissible. But, as drawn, it is far too brief The amendment from the noble Lord, Lord Hunt, at least protects the personal data of patients. It is very straightforward and provides the protection that every doctor, nurse and patient would expect. So I hope the Minister will say today that he is happy to accept the amendment. If he is not, please will he agree to a meeting with those who have spoken in this debate, and invite the GMC and the BMA? If progress is not made on this, I will lay an amendment on Report and am likely to press it to a Division.