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House of Commons

Friday 7 May 1993

The House met at half-past Nine o'clock


[Madam Speaker-- in the Chair ]

Orders of the Day

Osteopaths Bill

As amended (in the Standing Committee), considered.

[Madam Speaker-- in the Chair ] New clause 1

Data protection and access topersonal health information

.--(1) In section 2(1) of the Access to Health Records Act 1990 (definition of health professionals), after paragraph (f) there shall be inserted--


(a registered osteopath ;".) (2) The following instruments shall be amended as mentioned in subsection (3)--


(the Data Protection (Subject Access Modification) (Health) Order 1987 ;)


(the Access to Personal Files (Social Services) Regulations 1989 ;)


(the Access to Personal Files (Social Work) (Scotland) Regulations 1989 ;)


(the Access to Personal Files (Housing) Regulations 1989 ; and) (e

(the Access to Personal Files (Housing) (Scotland) Regulations 1992.) (3) In each case, at the end of the Table in the Schedule there shall be inserted--

(4) The reference in section 2(1) of the Access to Medical Reports Act 1988 to the order mentioned in subsection (2)(a) shall be read as a reference to that order as amended by this section.

(5) The amendments made by this section shall not be taken to prejudice the power to make further orders or (as the case may be) regulations varying or revoking the amended provisions.'.-- [Mr. Moss.]

Brought up, and read the First time.

9.34 am

Mr. Malcolm Moss (Cambridgeshire, North-East) : I beg to move, That the clause be read a Second time.

The proposal is a straightforward one. The Access to Health Records Act 1990 gives patients a right of access to their health records. It applies to records relating to the physical or mental health of an identifiable individual compiled by a health professional in connection with care and treatment. "Health professional" is defined without reference to osteopaths, and records compiled and held by an osteopath are therefore outside the scope of the Act.

As the main purpose of my Bill is to introduce a statutory registration scheme for osteopaths, to place the profession on the same footing as the other key health

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professions, it seems logical for individuals who have received treatment from an osteopath to be given the legal right of access to the records of that treatment.

The definition of "health professional" is the same across the whole range of legislation that deals with the individual's right of access to information about his own health. For the sake of consistency, it is again logical to include registered osteopaths in all the various legislation-- that is especially important in respect of the Data Protection (Subject Access Modification) (Health) Order, as the Access to Health Records Act applies only to records compiled in a written form. An individual's right of access to information held in computerised form is provided by the subject access provisions of the Data Protection Act 1984.

The Parliamentary Under-Secretary of State for Health (Mr. Tom Sackville) : Scanning the horizon for good news this morning, I am happy to light upon the excellent Bill introduced by my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss).

This new clause is an important proposal, which the Government strongly support. For many years, we have openly supported the principle that patients should, as a matter of course, have the right to know what has been written about them. The new clause extends to individuals who receive treatment from osteopaths the existing rights of patients to have access to their health records.

People have had a legal right of access to personal health information for some time now. Health records kept on computer are accessible to patients by means of section 21 of the Data Protection Act 1984, although certain information is exempt by virtue of the Data Protection (Subject Access Modification) (Health) Order 1987. Those exemptions are necessary to protect the subject from serious harm to his physical or mental health and to protect the privacy of other identifiable individuals.

In 1987, the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) successfully piloted on to the statute book the Access to Personal Files Act, which gave individuals the right of access to records not held on computer--usually described by the rather unsophisti-cated term "manual records"--but that right extended only to those manual records held by local authorities and local social services for the purposes respectively of their housing and social services functions.

Health records were excluded from the Access to Personal Files Act 1987 because, at that stage, the Government wanted to reach an agreement with the medical profession, which had reservations about the idea of a legal right of access to health records. The profession was concerned about the potential effects on patient care of patients being handed that right, and argued that arrangements for access should involve appropriate safeguards for patients, doctors and other health professionals. It recognised that, in any case, many doctors had long practised voluntary disclosure to patients of their personal records, and argued that legislation was not necessarily the right way in which to deal with the issue. Therefore, the Government undertook to enter into talks with the medical profession to see what could be achieved.

After discussions, which extended over two years, with representatives of the profession, a draft code on non-statutory access to health records was produced. That document was circulated widely for comments. The only reservations about the principle of access were raised by

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the medical profession itself. For that reason, the Government concluded that agreement could not be reached on a non-statutory code which would match the expectations of the public and which would have the unequivocal support of the medical profession.

When the hon. Member for Newcastle upon Tyne, North (Mr. Henderson) presented his Access to Health Records Bill in 1989, the Government decided to support it, subject to necessary safeguards because its provisions were entirely consistent with my Department's policy on access to records. The issue is not just letting patients see their own health records. Medical records are maintained for patient care and are used by doctors and other health professionals to help them in the diagnosis of patients. Records are thus used to record and advise other health professionals on the progress of care and treatment.

However, the primary purpose is to record what is in the best interests of patients and what is in the record may not always be in the best interests of the patient to know. For example, there may be circumstances in which the uncontrolled disclosure of information may cause harm or distress.

Therefore, the problem has been to ensure that information for patients is recorded properly, while providing safeguards for patients against the risks that some disclosures may bring. Some doctors are fond of using phrases and medical jargon in records which many people find incomprehensible. That is why the legislation provides that the applicant should be given a simple and clear explanation of the meaning of the record by a relevant health professional, whether or not the applicant requests clarification. A right of access to records can be reassuring to patients who know that they may see their records at any time. If patients ask to see their records and detect misleading or inaccurate information, they can request that that information be corrected. The Access to Health Records Act 1987 specifically provides for that. One of the advantages of the right of access is that it forces those who compile records to think rather more carefully about what they write. Openness therefore acts as a safeguard against possible casual, ill-considered personal comments which are sometimes found on health records.

In paying tribute to hon. Members who have successfully introduced Bills that have given individuals greater access to records, I must also acknowledge the work of the Campaign for Freedom of Information in raising public consciousness on this issue. The campaign has argued with much success that people should have the right of access to information that affects them and to information that enables them to take decisions about their lives. Those principles lie at the very heart of the Government's policy on openness.

The patients charter has highlighted the existing right of access to one's own health records. That, coupled with the right to be given detailed information on local health services, enables patients to make more informed decisions and illustrates the development of a more patient- centred health service taking account of the wishes of patients. With access to information, patients are empowered to play a greater role in decisions that affect them.

The issue of patients' access to their own health records is part of the wider issue of the provision of information to

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patients. Before legislation, there was a great deal of evidence that patients were not given as much information about their condition as they would like. For example, a survey of patients' satisfaction in general practice found that lack of information concerning treatment was the most frequently reported deficiency in the service provided.

Access to health records has provided an important new freedom to people, particularly because we should all be encouraged to take more responsibility for our health. We increasingly want to know what to do to keep ourselves healthy and what we can do to improve our chances of a quick recovery when we are ill. We want to be able to discuss our treatment with doctors and the other health professionals involved in caring for us, to understand what we are being asked to consent to and to know the risks, alternatives and chances of success.

Of course, access to the written record is not an alternative to discussion with professionals. However, I am sure that being able to see and understand what has been recorded about one helps to make that discussion more informed and equal and it will therefore become a more natural process between patient and professional.

The Government welcome and support the new clause. Given the enhanced status that the Bill gives to the profession of osteopathy in the field of health, extending patients' rights of access to the records of a registered osteopath seems the natural and logical progression.

Ms Dawn Primarolo (Bristol, South) : We welcome and support the new clause. As the Minister said, in a Bill that is designed to protect patients' rights and access to osteopaths in terms of training and the quality of service that patients receive from osteopaths, it is entirely right that they should have access to their own records and protection in that way.

I sincerely hope that the positive way in which we have started our discussion on the Bill today is a sign that we shall be able to progress speedily through a Bill which should have been on the statute book a long time ago and which has the support of all parties--although representatives of one party are absent from the Chamber today.

9.45 pm

I expect that the Liberal Democrats are still celebrating, and we would not want to take that from them after their spectacular victories against the Government-- [Interruption.] I could recount all the shire counties that were lost--

Mr. Deputy Speaker (Mr. Michael Morris) : Order. A general reference to that may be acceptable, but we do not need to explore the depths.

Ms Primarolo : I was encouraged by some sedentary comments, and I stand corrected, Mr. Deputy Speaker.

I can think of no better basis from which the Government can look to the horizon to redeem themselves than to improve and develop the national health service and to take the message from the electorate yesterday that they expect the Government to do that and that they have not approved of the Government's progress thus far. I therefore hope that we shall be able to support all the proposals in the Bill and conclude our business in good time so that we can return to our constituencies and continue the work that we were doing yesterday. Question put and agreed to.

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Clause read a Second time, and added to the Bill.

New clause 3

Appeals against decisions ofthe Health Committee

.--(1) Any person with respect to whom a decision of the Health Committee is made under section 23 may, before the end of the period of 28 days beginning with the date on which notification of the decision is sent to him, appeal against it in accordance with the provisions of this section.

(2) An appeal under subsection (1) shall lie to an appeal tribunal, consisting of a chairman and two other members, established for the purposes of the appeal in accordance with rules made by the General Council for the purposes of this section.

(3) The General Council shall make rules as to the procedure to be followed by an appeal tribunal hearing an appeal under this section. (4) The rules may, in particular, make similar provision to that made by virtue of section 26(2)(d), (f), (g), (h), (i) or (j). (5) No decision against which an appeal may be made under this section shall have effect before--

(a) the expiry of the period within which such an appeal may be made ; or

(b) the appeal is withdrawn or otherwise disposed of.

(6) The chairman of an appeal tribunal--

(a) shall be selected in accordance with rules made by the General Council ; and

(b) shall be qualified as mentioned in section 27(4).

(7) Each of the other two members of an appeal tribunal shall be selected in accordance with rules made by the General Council-- (

(a) one of them being a fully registered osteopath, and (

(b) the other being a registered medical practitioner.

(8) The rules may not provide for the selection of any member of an appeal tribunal to be by the General Council.

(9) The chairman of an appeal tribunal shall appoint a person approved by the members of the tribunal to act as clerk of the tribunal.

(10) Subject to any provision made by the rules, an appeal tribunal shall sit in public and shall sit--

(a) in Northern Ireland, in the case of an osteopath whose registered address is in Northern Ireland ;

(b) in Scotland, in the case of an osteopath whose registered address is in Scotland ; and

(c) in England and Wales, in any other case.

(11) On any appeal under this section--

(a) the appeal shall be by way of a rehearing of the case ; (

(b) the General Council shall be the respondent ; and

(c) the tribunal hearing the appeal shall have power to make any decision which the Health Committee had power to make under section 23.

(12) An appeal tribunal shall have the same powers of interim suspension as the Health Committee has under section 24(1)(b) and that section shall have effect in relation to suspension orders made by appeal tribunals with the necessary modifications.

(13) No person shall be required by any rules made under this section to give any evidence or produce any document or other material at a hearing held by an appeal tribunal which he could not be compelled to give or produce in civil proceedings in any court in that part of the United Kingdom in which the hearing takes place. (14) An appeal tribunal shall have power to award costs. (15) Any expenses reasonably incurred by a tribunal, including any incurred in connection with the appointment of a clerk, shall be met by the General Council.'.-- [Mr. Moss]

Brought up, and read the First time.

Mr. Moss : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker : I understand that with this it will be convenient to discuss also the following amendments : No. 18, in clause 30, page 24, line 12 leave out

of the Health Committee is made under section 23'

and insert

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is made by an appeal tribunal hearing an appeal under section (Appeals against decisions of the Health Committee)'.

No. 19 in page 24, line 21, at end insert--

( ) An appeal under subsection (1)(b) may only be on a point of law.

No. 20, in page 24, line 24, leave out may appear as' and insert shall be the'.

No. 21, in page 24, line 39, after Committee' insert or appeal tribunal'.

No. 22, in page 24, line 42, leave out subsection (8).

No. 23, in page 25, line 7, leave out from by' to rules', in line 8, and insert

(a) the Professional Conduct Committee,

(b) the Health Committee, or

(c) an appeal tribunal hearing an appeal under section (Appeals against decisions of the Health Committee),


No. 24, in page 25, line 8, after (h)' insert

or under any corresponding rules made by virtue of section (Appeals against decisions of the Health Committee) (4)'. No. 28, in page 26, line 20, leave out or 17' and insert 17 or (Appeals against decisions of the Health Committee)'.

Mr. Moss : The central purpose of the Bill is to establish a statutory registration system for osteopaths to provide members of the public with the assurance that, in the future, anyone calling himself or herself an osteopath, is adequately trained, properly qualified and fully competent to practise osteopathy, and that their professional practice is regulated by effective methods of control. In addition to providing those safeguards for the public, it is equally important that the statutory scheme protects the human rights of osteopaths and provides them with an appeals system which is firmly rooted in the principles of natural justice.

As currently drafted, the Bill provides an aggrieved osteopath with a right of appeal against decisions of the professional conduct committee and health committee to Her Majesty in Council--that is, to the Judicial Committee of the Privy Council. I remind the House that those two committees are the fitness to practise committees with powers to suspend an osteopath's registration, impose conditions on his or her continuing to practise or, in the case of the professional conduct committee, to erase his or her name from the register. Providing appeals against decisions of the health committee on matters of fact as well as of law would be a unique feature of the osteopaths' scheme among those governing other health professionals. The Judicial Committee is, however, concerned that appeals on matters of fact are liable to raise complicated issues of technical evidence on someone's medical condition and their consequent ability to practise which would fall outside the scope of its competence to determine. Therefore, new clause 3 seeks to provide an alternative route for appeals against decisions of the health committee. Under the provisions of new clause 3, an appeal on either a matter of fact or of law would lie to an appeal tribunal. A further right of appeal against a decision of that tribunal on a point of law only would lie to Her Majesty in Council. That would be in line with the practice applying to the other health professionals.

The appeal tribunal would comprise a legally qualified chairman--a senior solicitor or barrister--a fully registered osteopath and a registered medical practitioner, all of whom would be appointed in accordance with rules drawn up by the general council and approved by the Privy

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Council. In order to ensure the independence of the appeal tribunal from the general council, the rules must specifically prohibit the general council from selecting any member of the appeal tribunal. A different appeal tribunal will be constituted for each appeal and, subject to any provisions made by the rules, would sit in Northern Ireland in cases where the appeal has been by an osteopath whose registered address is in Northern Ireland, in Scotland if his or her address is in Scotland, and in England or Wales in any other case. Subject again to any provision made by rules, the appeal tribunal will sit in public.

Hon. Members will no doubt have noticed that that is in contrast with the provisions of amendment No. 17, which I shall discuss later. We shall provide for hearings of the health committee to be held in private. That difference does not betray a contradiction in policy. In the first instance, an appeal under this new clause would have been initiated by the osteopath himself rather than by another party, as would be the case with the original allegation.

Also, the provisions have been drafted with an eye on the terms of article 6.1 of the European convention on human rights, which states :

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

The appeal to the appeal tribunal would be by way of a rehearing at which the general council would be the respondent. The appeal tribunal would possess the same powers as the health committee to require a witness to attend the hearing and give evidence or produce documents. Those powers would be backed up by the provisions of clause 31, making failure to comply a criminal offence.

The appeal tribunal would be empowered to make any decision that the health committee would have the power to make under clause 23. In the same way, the appeal tribunal would have comparable powers of interim suspension, as in relation to the health committee by virtue of clause 24(1)(b).

The other amendments in this group are the consequential amendments required to clauses 30, 31 and 35. In particular, they would provide for the rules to be prepared by the general council under this clause to be subject not only to approval by the Privy Council but to the negative parliamentary procedures. They also provide for the general council to be the respondent to any further appeal made to the Judicial Committee of the Privy Council on a point of law. Such hearings would normally be adversarial. However, as currently drafted, the Bill provides only that the general council may appear as the respondent. It is now felt, however, that the general council should always be the respondent. By making the general council the respondent, the provisions in clause 30(8) relating to the apportioning of costs are not required. The general council would automatically be a party to the hearing and could therefore be liable to incur the costs of the parties.

Sir Nicholas Bonsor (Upminster) : I welcome the provisions that my hon. Friend the Member for Cambridgeshire, North-East (Mr. Moss) has introduced, and I take his point in regard to the reluctance of the Judicial Committee of the Privy Council to be faced with

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complicated matters of medical fact in which it would not feel itself qualified to make a decision. Thus, it is correct to limit the right of appeal to the Judicial Committee to points of law. There are, however, one or two detailed matters in regard to new clause 3 to which I draw the attention of the House and in particular ask my hon. Friend to address to see whether further amendments could be made at a later stage of the Bill's process.

The first point that worries me is that the general council has virtually unfettered powers to make rules. Therefore, it is very difficult for the House to consider new clause 3 and to satisfy itself that the rules of justice--natural justice--will be fully carried out when the general council makes decisions over which it has no control.

I am happy that the appeal tribunal should be chaired by a lawyer. It is terribly important--I speak as somebody who practised at the Bar--that people with legal qualifications chair such committees. There is always a temptation to denigrate the legal profession and to underestimate the value of putting lawyers on lay tribunals on which their advice on what is fair, right and in accordance with the concepts of our law can be extremely useful.

I am pleased that the chairman is to be a lawyer, but I am a little less happy that the rules are so clear on what both the other members of the tribunal have to be. There has to be one osteopath, and one registered medical practitioner. It might be appropriate to have somebody with a different background, interest and knowledge on the appeal tribunal in circumstances which I cannot currently guess but which might arise.

My hon. Friend will take the point that the reason why he is leaving the rules so general for the committee to consider later is precisely that, and to fetter the committee in that way on that specific issue seems to be unwise and contrary to the general thinking behind the clause.

The second point, which is possibly more serious, is that new clause 3(4) states :

"The rules may, in particular, make similar provision to that made by virtue of section 26."

There are then many sub-paragraphs. In clause 26, the position is different. It deals with the setting up of the health committee and the rules that the health committee shall decide on. It states : "The rules shall, in particular, include provision".

There we have the health committee being bound to make rules along the lines of that clause, but that compulsion is removed when it comes to the appeal committee, which has discretion whether to follow the rules laid down in clause 26.

What concerns me in particular is that clause 26(2)(d) states : "The rules shall, in particular, include provision entitling the osteopath to be legally represented at any hearing in respect of the allegation".

If I read that clause correctly--I stand to be corrected if somebody can so persuade me--what is substituted for that in new clause 3 is that the rules may, in particular, include a provision entitling the osteopath to be legally represented at any hearing. If that reading is correct, it would, at least in theory, enable the appeal tribunal to refuse legal representation to an osteopath who has appealed to it.

I cannot believe that that is the intention behind the drafting of the Bill, and I should be grateful if my hon. Friend would confirm that, if I am right, that point will be

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