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Third Standing Committee on Delegated Legislation
Wednesday 15 May 2002
[Miss Anne Begg in the Chair]
Draft Health Service (Control of Patient Information) Regulations 2002
The Parliamentary Under-Secretary of State for Health (Ms Hazel Blears): I beg to move,
That the Committee has considered the draft Health Service (Control of Patient Information) Regulations 2002.
Mr. David Wilshire (Spelthorne): On a point of order, Miss Begg. I raise a very serious issue. A large number of hon. Members are here, but there are not enough documents. How can we possibly give the matter proper consideration when the number of documents supplied is not sufficient for the number of people present?
The Chairman: Documents are on the Table, as hon. Members can see. There are also copies of the Act.
Mr. Andrew MacKay (Bracknell): On a point of order, Miss Begg. You will have noted that a number of colleagues are here today because serious and controversial regulations are before the Committee, which we believe to be quite wrong. I have two questions for you. First, do you have powers to obtain a larger Committee Room? Secondly and better still, do you have powers to decide that, because of the controversial nature of the regulations and the terrific interest in them, they should be taken on the Floor of the House and not here as it puts you in a very difficult and embarrassing position?
The Chairman: I apologise about the size of the Committee Room. We obviously did not expect these numbers. However, there is no reason why Opposition Members must necessarily sit on the Opposition side of the Committee. There are plenty of seats on the other side. Of course, they may not wish to, but there are sufficient seats in the Room.
As for whether the regulations should be debated on the Floor of the House, they have come to the Committee and it is now incumbent upon the Committee to debate them. Obviously, hon. Members can take up the matter with the Speaker if they have anything further to say. We are here today and the Committee is quorate. I suggest that we proceed to debate the regulations.
Sir Brian Mawhinney (North-West Cambridgeshire): Further to that point of order, Miss Begg, would you be prepared to allow a motion to be put to the Committee, so that we can express a view as to whether we wish to have the matter transferred to the Floor of the House?
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The Chairman: That is not within the standing orders of delegated legislation Committees. There is no power to do that.
Ms Blears: I am delighted to welcome you to the Chair of this Committee, Miss Begg. The regulations that we are about to discuss in some detail are very important. Identifiable and confidential patient information has for many years been used by the health service to support a wide range of purposes. The current ones extend well beyond the information sharing needed to support care and treatment. They certainly extend well beyond what patients and even many who work within the health service understand to be the case. Without full understanding it is difficult to have proper consent. That situation is not right. The Government are committed to openness and to developing relationships between service providers and service users that are based upon trust, partnership and informed consent. We have to recognise that we are a considerable distance away from delivering that sort of service in practice.
Sir Brian Mawhinney: Will the Minister give the Committee examples of the sort of information to which she has just referred?
Ms Blears: The information relates to research facilities, education and training, and dealing with complaints. It is processed in the almost every day way that practices conduct their business. For many years, access to confidential information has gone on within the service, regulated only by the principle of common law confidentiality, without a statutory regime. The purpose of the regulations is to introduce a more stringent regime in respect of confidential information.
Mr. Dominic Grieve (Beaconsfield): What is wrong with the common law principles of confidentiality? In the relationship between doctor and patient, such principles have provided safeguards that are extremely effective in ensuring that patient information is not misused. What has happened to make those common law rules, on which patients have relied for generations, inadequate?
Ms Blears: The hon. Gentleman will appreciate that the development of common law rules can be ad hoc, based on case precedent and on inferences drawn from particular sets of circumstances. Often, decisions are not taken until an issue is raised and considered in the legal process. Therefore, the development of a common law system inevitably has gaps or vacancies that judges may not think about when they consider cases.
The regulations introduce a statutory code that is full of safeguards, which I hope to be able to persuade hon. Members is more stringent. It will begin to regulate what has gone on for years. We have had cancer information since 1929 and national coverage since 1962, but the operation of the cancer registries is not within a framework in which people have clear notice about what information is being used, and how it is used. People want to have confidence that they
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can rely on a safe and clear system, and that is what the regulations will introduce.
Common law is fine, but it is an imperfect science because it is built on the establishment of precedent.
Dr. Liam Fox (Woodspring): I thank the Minister for giving way. In terms of public health law and with respect to the regulations, how does the Minister define the terms privacy, confidentiality and security?
Ms Blears: Confidentiality is defined in a number of different areas. Through the common law we have the basis of confidentiality. We also have the Data Protection Act 1998 and the Human Rights Act 1998. Therefore, there is a body of law on privacy and confidentiality. The regulations will limit the circumstances in which confidential information is used because it will have to get through several different obstacles. An application must be made to an independent statutory watchdog, which will provide advice, which is published. There is a transparent process about what confidential information will be used and how it will be used and there are clear penalties for departing from that stringent code.
Mr. Oliver Heald (North-East Hertfordshire): Will the Minister give way?
Ms Blears: I will give way to the hon. Gentleman, but I want to get beyond the first paragraph of my opening speech fairly soon.
Mr. Heald: Would not the hon. Lady agree that she is overriding the protections of the confidentiality and data protection laws? What she does not like is that she cannot meet the common law obligations that are imposed on her Department. That is what her briefing note says. Does not she agree?
Ms Blears: The hon. Gentleman should be aware that the matter has been considered by the Information Commissioner, who is charged with looking specifically at the issue of data protection. The Information Commissioner was consulted on section 60 of the original Act and in respect of the draft regulations. She issued guidance this week on the general use and disclosure of health data and she is working closely with the Department on the issues. The guidance states:
"In some cases even though data may be subject to a duty of confidence, there may be justification for disclosure or secondary use. For instance, the disclosure of information relating to a notifiable disease or a disclosure on the basis of an order made under Section 60 cannot legitimately be accused of involving breaches of confidence."
Mr. Patrick McLoughlin (West Derbyshire): I do not know about my hon. Friends, but, increasingly, I am getting letters from health authorities refusing to give me information about constituents on whose behalf I am writing to them. Will the code give any extra powers to Members of Parliament to tell health authorities that they cannot withhold such information?
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Ms Blears: I am delighted that the hon. Gentleman has raised that matter because it gives me an early opportunity to lay to rest the alarmist claim that not only Ministers, but Members of Parliament will be able to snoop on an individual's health records. That is not what the regulations are about. They are permissive, not prescriptive. They do not require information to be provided; they say that information may be provided to bodies such as cancer registries and for public health communicable disease surveillance.
The regulations specify clear categories, without the fear of exposing the health professionals who use the information to the possibility of litigation because the common law is not clear in the legal duties that it sets out. The regulations are the reverse of what the hon. Gentleman has suggested.
Several hon. Members rose
Ms Blears: I should like to make some progress and get beyond the first paragraph of my statement, but I give way to the right hon. Member for North-West Cambridgeshire.
Sir Brian Mawhinney: The hon. Lady's remarks will not wash, and I speak from direct personal experience, as she knows. For years, the idea of confidentiality in the health service has worked well. The medical profession has operated under rules that have been in place for decades and which certainly worked perfectly well during the 1990s, as I know. What has changed since this Government came to power, to make the old confidentiality rules suddenly inadequate?
Ms Blears: What has changed is that the Government have made an overt commitment in the NHS plan not only to place patients at the centre of the service, but to restate the principle of patient confidentiality. If the right hon. Gentleman thinks about some of the practices of which he is aware in the medical profession, he will realise that, over the years and as research has developed, the basic principle of patient confidentiality has been eroded.
We are seeking to be honest about the current situation, to restate the core principle of patient confidentiality and to set that within a statutory framework. That will ensure that people know what information is being used and how, and that everything is subject to scrutiny and transparency. It is all too easy to say that a system has been in place for years and is perfectly satisfactory. If people do not know what is happening, they have few grounds on which to challenge it. In future, however, people will know what is happening, and the system will be much more honest and transparent.
Dr. Fox: Will the Minister give way?
Ms Blears: I have said that the current situation is not right and we are committed to openness. For many years, the NHS has been run on paternalistic lines, with managers and clinicians making decisions
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about what is best for patients, and little or no input from patients and their families.
Mr. Heald: On a point of order, Miss Begg. Is it in order for a junior Minister to fail to give way to a shadow Secretary of State? In my experience in Committee, I have never known that to happen before. Have you?
The Chairman: I am sure that the hon. Gentleman, with his vast experience, knows perfectly well that it is up to the Minister, or whoever is speaking, to decide whether or not to give way.
Ms Blears: Thank you, Miss Begg. I gave way to the hon. Member for Woodspring (Dr. Fox) earlier, and I am sure that when I manage to get beyond the first page of my speech, there will be other opportunities for him to intervene.
Confidential medical records have been seen as a valuable resource to be protected and to be used sometimes for the wider public good. Much good has come from using confidential records, but we must think about what will happen in future and bring services into line with patients' expectations, the requirements of the law and the high standards that we have set as our goals. We must put in place systems and processes that enable us to deliver good things in research and on public health issues, and to respect patients' rights and preferences. That is about getting the balance right. There are competing interests, and it is a complex process to go through.
We set out our plans for shifting the balance of power in the health service towards patients in the NHS plan and, more recently, in the document entitled "Delivering the NHS Plan". However, it is important to acknowledge that it will take time to implement those changes. We cannot move from one system to another overnight. We cannot stop medical research, abandon all the valuable work that is being done on cancer and forget our responsibilities to monitor and sustain public health while we take time out to build systems and devise ways of working that meet the standards of confidentiality that should apply.
Dr. Fox: This is meaningless, mumbo-jumbo garbage. The Minister said that honesty was important and that what we are doing is entirely permissive. If that is the case, why does regulation 2(4) say that where the Secretary of State considers it necessary to process confidential patient information for a purpose specified, he may give notice to any body or person specified to require them to process that information for that purpose?