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Dr. Brand: This is fascinating--it is what the legislation says, but the judge of whether the condition is fulfilled will be the Secretary of State, who will consult both Houses.
The Government, almost shocked by their own temerity in wishing to take these powers, obviously felt that they must put the brakes on. I appreciate the fact that they have done something quite unusual in requiring affirmative resolutions from both Houses, but that has happened only because they recognise that the powers they have given themselves are so ridiculous. They are far too wide and they are totally unnecessary.
Mr. Bercow: I do not want to criticise the hon. Gentleman, who is making an important point and speaks with some medical expertise. However, although I understand what he says about the parliamentary draftsmen, there is no way in which we can exonerate Ministers on the basis of errors of commission or omission by draftsmen: the Minister of State is responsible for what transpires.
Does the hon. Gentleman agree that clause 62(2)(c) is a model of ambiguity? It blathers on about level five on the standard scale,
- "or such other level as is prescribed",
- "other procedures for enforcing any provisions of the regulations."
Dr. Brand: As often, that was a valuable intervention. I think that there is a shared responsibility. It was noticeable that the only people who showed any enthusiasm in Committee were the officials, who agreed with every word that the Minister said. The rest of us shook our heads in some surprise.
It is clear that the Minister should take a small step--an interim step--to deal with the concerns about existing disease registers. I cannot understand why the Minister has taken the opportunity to assume powers in a completely different issue, that of anonymised data. By definition, that is not patient-identifiable information. It seems that the Government want an opportunity to reverse a slight that they may have experienced when they lost a case in the High Court. [Hon. Members: "Henry VIII."] My memory does not go back as far as Henry VIII, and I do not understand the exact purpose of the "commercial" clause.
In Committee, I asked the Minister for a definition of "commercial". He referred me to the Town and Country Planning Acts, but they concern commercial premises rather than commercial activities. This is an important point. A good deal of research in this country is funded by drug companies and others in the health care field--not for altruistic reasons, but because they hope they will gain some commercial advantage. I am not saying that commercial activities are always benign: I think it improper for a drug company to try to work out the individual prescribing pattern of a particular general
practice or a particular general practitioner in order to target its promotion. We have received briefing from some commercial organisations, and I can assure the House that their activity is not designed to drive down drug costs; it is designed to increase their share of the drug market, often through the prescribing of their expensive patented drugs as against generic drugs.I can see that the Secretary of State might want to consider a way of dealing with the need for information on NHS activities to be made freely available. All audit and a good deal of local government information is dependent on access to anonymised information. However, I do not think that what we are discussing makes sense.
Dr. Stoate: I appreciate the hon. Gentleman's point about audit, but we are talking about "prescribed commercial purposes". Audit is not commercial; it is for the good governance of the national health service, and for allied purposes. The provision relates specifically to the use of anonymised patient data for profit.
Dr. Brand: It depends on how the data are collected. I do not know my medical colleague's practice well, but I know that he has long been concerned with medical education, postgraduate education and training, as I have. I know how many training activities depend on a degree of sponsorship, and it is important to ensure that sponsorship does not corrupt the activities of the practice; but we are talking about a commercial activity nevertheless.
I understand why the Minister might be tempted to take powers, but I think he has adopted the wrong route. The most important step that he could have taken, as a Minister responsible for national health information, would have been to say that non-patient-identifiable information should be covered under freedom of information provisions, and accessible to all. That would make narrow commercial interests disappear, because it would not be in the interests of companies to produce the information--but the overall trends relating to drug use would still be explored, because that would be in the interests of if not just one drug company, drug companies generally.
I am profoundly unhappy about clause 62. As I said in the debate on the programme motion, it is ludicrous for the Government to propose such a provision before their own working party on patient confidentiality and associated issues has even reported. Although I welcome the fact they are establishing a formal body to advise them, there is already such a body and they have not waited for its advice before rushing us into legislation.
I think that it would be sensible for the Government to rethink clause 62, and I am glad that I am not the only one who thinks so. At the last Committee sitting, I gave a list of people who feel as I do. Since then, however, the list has grown from four to 11 signatories, representing a wide range of patient interests rather than commercial interests.
Should the House not divide on new clause 1, I would certainly seek to press amendment No. 15 to a Division. As the hon. Member for Buckingham (Mr. Bercow) said, that amendment is extremely elegant and cost-effective, with only 32 words.
Sir George Young (North-West Hampshire): I hope that someone who is not a registered general practitioner may participate in the debate on this group of amendments.
Although the Government have tabled a very large number of amendments since the Committee rose last Thursday, they have not tabled any amendments to what was clause 59, now clause 62, which was the section of the Bill where I thought that they came under most sustained attack and were on the thinnest ice. I am very sad that they have not found an opportunity to meet some of those anxieties by tabling amendments of their own to new clause 62.
When I initially went through the Bill, before I went on to the Standing Committee, clause 59 was not one that immediately was drawn to my attention. At that stage, no one had written in about clause 59. Admittedly, it had not been in the NHS plan. It was only when the debates in Standing Committee began that letters came in.
The Government, in their definition of patient information, have managed to upset two wholly different groups of people. On the one hand, the Secretary of State has the potential power to ban the use of important and beneficial non-personal data, which has upset the pharmaceutical companies; on the other, the Government also allow sharing of identifiable health data without the subject's consent, which has of course upset the patient organisations.
Like the hon. Member for Isle of Wight (Dr. Brand), I have received representations from the chairman of the Patients Association, the director of the BMA Foundation for Aids and the director of the National AIDS Trust. They say that they have continuing concerns that clause 62 gives the Secretary of State
- "unprecedented powers to collect patient data without consent. It is an attack on patient confidentiality. The Government has not made a proper case for overriding patient consent, even for the cancer registries."
- "embarking on legislation without a due process of public consultation."
- "expedient use of identifiable patient information at the discretion of the executive, subject only to clawback safeguards",
Therefore, the Government are not only being attacked by patients' representatives for their definition of patient information, they are being criticised by the pharmaceutical companies for potentially prohibiting the use of anonymised data. Although those data are of commercial value, they are also of real benefit to academics, research institutions, consumer organisations, doctors, pharmacists and patients. In debate in Committee, the Minister, although he tried valiantly, never really justified the very wide definition of patient information in a manner that would allow him to forbid the use of anonymised data, which I believe are of wide benefit.
The assumption has been made that even the use of data without personal identification is, according to the explanatory notes,
- "not in the interests of patients".
- "in the interests of patients" in a manner that will reassure the House that he does not seek to ban the use of anonymised information that could be of beneficial use by identifying drugs that have application but, for whatever reason, are not being prescribed in certain parts of the country.
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