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The Minister of State, Department of Health (Mr. John Denham): Amendments Nos. 285 and 324 limit the effect of the powers provided under either subsection (1) or (3) to information that identifies, and is likely to be confidential to, an individual. This has an impact, as is intended, on the power that is provided, and it is intended to provide, under subsection (1) that, it is anticipated, will be needed primarily to prevent information that does not identify individual patients from being used in ways that drive up NHS costs or are otherwise not in the interests of the patients. These amendments would prevent the Government taking action to prevent pharmaceutical companies and other commercial interests from exploiting patient information. The dividing lines on this issue between the Government and the Opposition are now fairly clear. The Opposition parties wish to line up behind the type of marketing strategy that the Government sought to prevent in the Source Informatics case and on which we lost the court case. That is clear. Sir George Young: Is the Minister aware that the Association of Medical Research Charities has expressed concern about clause 59 and has written to support some of the tabled amendments?
2.45 pmMr. Denham: There are two important issues here. It is disingenuous, if I may use that word, for the right hon. Gentleman to plead, in support of the central argument that he was making, concerns that have been expressed by a wider range of bodies and on which I have sought to reassure the Committee about the Government's intentions. The right hon. Gentleman was making it perfectly clear, and the hon. Member for Sutton and Cheam (Mr. Burstow) was equally clear, that he saw nothing wrong in the type of marketing that is aimed at persuading people, with very precise targeting, to change their prescribing practices in a way that will lead to a higher cost for the NHS. That may be just a point of disagreement across the Committee, but the issues raised by the medical research charities cannot be prayed in aid of that argument. I made quite clear in the earlier discussion, Mr. Maxton, and I do not want to go through all that again, why it has been necessary to frame the powers in the way that we have—albeit that, in response to some of the concerns expressed, we have amended them, quite rightly, to be limited to commercial matters. We need to have the breadth that the legislation will now have to be able to tackle those practices that we think are detrimental to the national health service. Dr. Peter Brand (Isle of Wight): Would the Minister be able to point members of the Committee to a definition of ``commercial'' in this instance? Mr. Denham: The use of ``commercial purposes'' is well established, for example in the Town and Country Planning Act 1990. I do not believe that it is subject to a definition in that Act and it is clearly one that would need to be established in due course by the courts. It is not, however, a phrase or a piece of parliamentary drafting invented purely for this legislation. I understand, helpfully, that it is also incorporated in various Finance Acts. We have been asked whether the Government have sought to overturn the original judgment, which did not find in the Government's favour on the issue of whether the sale of data was an abuse of patient confidentiality. Lord Justice Simon Brown said that if the Government continued to view schemes such as that operated by Source Informatics as operating against the public interest, then we must take further powers in what he described fairly as
Government amendments Nos. 338 to 340 amend the definition of exactly what constitutes confidential information and make it clear that information may be confidential not only when an individual can be identified from the information in question, but also where that information might be combined with other information in the hands of—or likely to become available to—the person processing the information. This is an important clarification in current times, where people increasingly have a range of information that can be pieced together. They have the use of supportive information technology and can establish identity as if assembling a jigsaw. Let me make it perfectly clear once more that it is not the intention behind this section of the clause to limit scrutiny or criticism of the NHS, nor does it introduce a blanket ban on the use of information for commercial or research purposes. It sets in place a procedure whereby the Secretary of State, after consultation and only after due parliamentary process, can take measures to stop the sort of practice that we regard as harmful to the NHS and that I was able to describe earlier. Mr. Burstow: That is the very point that I hope that the Minister can develop further. The explanatory notes say that one of the purposes of this power is to deal with matters that might be detrimental to the operation of the NHS. Could the Minister elaborate and give us some exemplifications of the sort of detriments to the NHS that would lead him to exercise this power? Mr. Denham: The explanatory notes—the hon. Gentleman understands the procedures—were drafted with the help of legal advice at the time at which the original clause was tabled. As I have made clear, we listened to the representations about the drafting of the original clause and we sought, I think rightly, to restrict the original scope. When we were going through that process, we considered the pros and cons of putting the word ``detriment'', which was in the explanatory note, on the face of the Bill. It was decided that there were so many ambiguities about the interpretation of ``detriment'' that it would not be right to do so. That is why we have chosen the simpler formulation of ``commercial purposes''. The hon. Gentleman will know that the explanatory notes do not constitute statute; they are there for guidance and assistance. However, he has provided me with the opportunity to explain why we have chosen the wording that we have to be on the face of the Bill. Dr. Fox: I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Amendments made: No. 338, in page 53, line 3, after `ascertainable' insert `(i)'. No. 339, in line 4, after `information' insert
(ii) from that information and other information which is in the possession of, or is likely to come into the possession of, the person processing that information'.
Mr. Denham: I beg to move amendment No. 341, in page 53, line 14, leave out `includes the purposes of' and insert
The Chairman: With this it will be convenient to take the following amendments: No. 329, in page 53, line 14, leave out `includes' and insert `means'. No. 330, in line 16, leave out from `treatment' to second `and' in line 17. No. 236, in line 17, leave out `and social care'. Mr. Denham: Amendment No 341 is another amendment that we move following further discussion and consultation. It amends the current open definition of ''medical purposes'' to a closed definition listing a range of purposes. The list of purposes is broad enough to cover all the purposes that we envisage that it may need to cover and, as it is intended as a safeguard for patients, the logic that the definition should be closed rather than open ended seems to be inescapable. I acknowledge that amendment No. 329 essentially aims to achieve the same end and I hope that the hon. Member for Sutton and Cheam will be content with the slightly different wording suggested by parliamentary counsel. Amendment No. 236 amends the definition of ``medical purposes'' provided in the clause to exclude social care services. While the definition is arguably still wide enough to encompass social care and indeed is interpreted in that way within the Data Protection Act 1998 where a similar definition exists, our intention was to put this beyond doubt and to send a clear signal of the importance that we put on the development of seamless care. Amendment No. 330 has the effect of removing the purposes of managing health and social care purposes from the definition of medical purposes. We have based the definition here on the definition of medical purposes provided in the Data Protection Act 1998, and although we have added some clarification in line with Government policy relating to providing patients with seamless care and providing them with more information about their own care and treatment, they are purposes that are already covered by the Data Protection Act definition. It seems sensible that the core element of the definition should apply as widely as possible so that any reference to ``medical purposes'' can be generally understood without having to delve into different Acts. However, we should be clear that before regulations can be made to allow information to be used for management or for social care purposes they would have to pass the clear tests limiting the use of the powers set out in the Bill. Agreement agreed to. The Chairman: I have given careful consideration as to whether I should allow a clause stand part debate. However, I believe that the principles and related matters involved in the clause have been covered by the debate on the amendments and therefore I intend to put the question forthwith. Question put, That the clause, as amended, stand part of the Bill:— The Committee divided: Ayes 11, Noes 7.
Division No. 11]
AYES
NOES
Clause 59, as amended, ordered to stand part of the Bill.
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