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Memorandum submitted by the British Medical Association (CJ 10)
Executive Summary
1. The British Medical Association (BMA) is an
independent trade union and voluntary professional association which represents
doctors from all branches of medicine throughout the
2. The following evidence from the British Medical Association (BMA) has been submitted to highlight its concerns about elements of the draft Coroners and Justice Bill, particularly in relation to coroners and death certification reforms, confidentiality and the processing of sensitive health information.
Part one - Coroners etc Chapter two - Notification, Certification and Registration of Deaths Clause 17 - Notification by medical practitioner 3. Although the BMA welcomes the provision under which a medical practitioner can notify a senior coroner of a death they are aware of, it is important to ensure such regulations do not set a precedent under which all medical practitioners may be under potential criminal investigation for failing to report certain deaths. Medical practitioners working within the UK are one of the most regulated professions within the developed world and if there are potential concerns over a doctors performance, we believe the General Medical Council (GMC) are proficient in managing such concerns.
Clause 18 - Medical Examiner 4. In order to ensure standards are met in the performance of the medical examiner role, the BMA would like to reiterate the importance of an appropriate training package that is relevant and deliverable to all appointed medical practitioners.
5. We expect that interest for the role will come from those working within a variety of branches of practice including GPs, hospital doctors and consultants such as Pathologists as well as from Medical Referees who are often retired from full-time medical practice. It is therefore even more important that the training package is flexible and accommodates differences in levels of knowledge, experience and skills. The BMA is highly supportive of the on-going work of the Faculty of Forensic and Legal Medicine and their collaborative working with the Department of Health in writing the curriculum for the medical examiner e-learning module.
6. With regards to monitoring the performance of medical examiners we would encourage the appointment of the appropriate faculty or college to be responsible for setting the relevant professional standards for accreditation and revalidation.
7. We would also like to reiterate the importance of ensuring arrangements are in place for the transition period between the current system and the proposed recruitment process for medical examiners, especially where doctors who are retired from full-time practice are currently working as medical referees will require revalidation to apply for the medical examiner role.
8. The BMA feels that we are the only relevant professional body to represent fully the future medical examiner workforce. The BMA would therefore like to propose further discussions with the government to ensure the terms and conditions and appropriate fee levels agreed are reflective of equivalent rates and are set at a level to guarantee the recruitment and retention of the role.
9. The BMA would also like to seek clarity on whether the National Medical Advisor and the Chief Medical Examiner are one and the same role or if they will be separate appointments.
Clause 19 - Medical Certificate of Cause of Death 10. Subsection 5 allows provision for a fee to be payable to a Primary Care Trust or Local Health Board in respect of the relevant certificates signed and approved by the Medical Examiner. The BMA would welcome changes from the current system in which fees for medical practitioners completing cremation forms are paid by the bereaved relatives through funeral directors. The payment of cremation fees are an unnecessary additional stress to vulnerable relatives. We would therefore strongly encourage the redistribution of payments to medical services within the new death system with costs paid from central government funding, under the jurisdiction of the Department of Health.
Part Eight - Data Protection Act 1998 (c.29) Clause 152 - Information sharing 11. The Bill puts in place welcome provisions to ensure good governance in relation to confidential data, while simultaneously handing the Government sweeping powers to access and transfer identifiable patient data, and to process these data for purposes other than which they were originally intended without any requirement to seek consent. Overall, in the BMA's view, the Bill presents a highly contradictory message. We believe that this approach is untenable, as outlined below.
12. Data losses by the government and other organisations over the past year have been highly publicised. Given the impact of these data losses on public confidence in the government's processing of sensitive information we support the moves to protect the confidentiality of data. We feel that it is essential to introduce measures to allow the Information Commissioner to ensure good governance in the processing of data by carrying out assessments. We also support the publication of a data sharing code of practice as described in clause 153 of the draft bill.
13. The BMA is extremely concerned by clause 152 which, rather than protecting confidentiality, permits an unprecedented sharing of confidential personal health data without any requirement to seek consent. The doctor/patient relationship is based on trust. In the course of consultation and treatment, patients will often disclose highly sensitive information to their doctors, information that is often vital to ensuring the provision of appropriate care and treatment. This information is disclosed on the basis that information will be kept confidential. The Bill, as drafted, will mean that doctors will no longer be able to reassure patients that their information will only be seen by those with a direct professional interest in their care. It will undermine the presumption of confidentiality, corrode trust in the doctor-patient relationship and could have a disastrous impact on both the health of individuals and of the public. Many key public health goals will be put at risk. Detail on the Government's intentions is sparse, but as currently drafted there is nothing in the Bill that would prevent the Government overturning the confidentiality clauses of the HFE Act or even of the Venereal Disease Regulations. The BMA is extremely concerned that this Bill will destroy confidence in the NHS Care Record Service and will result in patients either withholding vital information or of opting out of the care record system altogether. In the BMA's view it will also be in violation of Article 8 of the European Convention on Human Rights (ECHR).
14. Section 251 of the NHS Act 2006 (originally enacted under Section 60 of the Health and Social Care Act 2001) provides the mechanism for the disclosure of health information where it is not possible to obtain patient consent. This is subject to agreement by the National Information Governance Board's Ethics and Confidentiality sub committee (formerly known as PIAG). Section 60 was introduced by Lord Hunt as a temporary measure until consent or anonymisation procedures were developed in the NHS. These procedures are finally being developed. The BMA has been liaising with the NHS Information Centre and NHS Connecting for Health on proposals to introduce 'safe havens', which we hope will provide the mechanism for controlled access to anonymised and pseudonymised data under a robust governance structure. With these developments we can see no case for introducing powers to enable ministers to order the release of health information.
15. The BMA would like to seek assurance as a matter of urgency that confidential health information will be exempt from this legislation.
February 2009 |