Background
The memorandum of understanding
1.Early in 2017 our predecessor Health Committee was contacted by the National Aids Trust and Doctors of the World, representing a number of charities and other organisations involved with the treatment of refugees and other migrants, expressing their concern about a Memorandum of Understanding (MoU) on processing information requests from the Home Office to NHS Digital for tracing immigration offenders, which was published late in 2016 and came into effect on 1 January 2017.1
2.The MoU formalises arrangements for the Home Office to make disclosure requests to NHS Digital for the purpose of tracing immigration offenders and vulnerable people who may be at risk, and, subject to assessment of the appropriateness of the request, for NHS Digital to provide the information requested.
3.The data required and requested by the Home Office is strictly limited to demographic/administrative details covering name (or change of name), date of birth, gender, address and the date of their NHS registration. It does not include any clinical information or information relating to the health, care or treatment of the individual.2
Concerns expressed
4.The concerns expressed about the MoU covered a number of areas:
- a perceived lack of legal basis for the disclosure of the information;
- incompatibility between the disclosure of information about people in contact with health services and the obligations of confidentiality assumed to apply to that information;
- the risk that sharing of patients’ addresses with other Government departments will become accepted as normal practice;
- the wider effect on public perception of the confidentiality of data supplied to the NHS; and
- the knowledge that information may be passed to immigration authorities could deter people from seeking treatment, resulting in
- detriment to the individuals concerned,
- hazard to public health, and
- greater cost to the NHS due to more expensive emergency treatment needing to be administered later.
5.The organisations were also concerned at the process which had led to the publication of the MoU, arguing that they had been given commitments of meaningful consultation with them before any arrangements were finalised which they considered were not fulfilled. They further argued that the arrangements set out in the memorandum were deserving of greater Parliamentary and public scrutiny than they had received.3
Exchanges of correspondence, and request for an inquiry
6.Our predecessors responded by means of a number of exchanges of correspondence on the matter between the Chair and the Minister for Public Health, the Chair of NHS Digital, the Chief Executive of Public Health England, the Chief Executive of the General Medical Council and the National Data Guardian. The correspondence is all available on our website.4
7.Following the May 2017 election, the same coalition of organisations wrote to our Chair asking the Committee to continue its scrutiny of the arrangements set out in the MoU. The Chair also received a letter from the Chair of the BMA medical ethics committee requesting that the Committee hold an inquiry into the MoU.
National Back Office tracing service review report
8.On 7 November 2017, NHS Digital published the report of a National Back Office (NBO) tracing service review.5 The review had its origins in concerns expressed at a Health Committee hearing in February 2014 on the care.data database,6 one of four hearings held by our predecessors in the 2010 Parliament on the handling of NHS patient data.7 The NBO review started in January 2015 and concluded in 2016. It considered the arrangements by which NHS Digital responds to sanctioned tracing requests from a range of agencies and for a range of purposes. As well as Home Office immigration tracing, these purposes include tracing requests to locate individuals who have been identified as potential bone marrow donors, to aid charities supporting people wanting to re-establish contact with lost family members, and to locate individuals sought in regard to the investigation of a crime or in relation to criminal proceedings.8
9.The NBO review report shows that Home Office (Immigration) tracing requests account for by some distance the largest number of such requests received by NHS Digital.
|
Year |
Total number of tracing requests |
Number of those which were immigration tracing requests |
|
2014–15 |
8,910 |
3,501 (39%) |
|
2015–16 |
12,210 |
6,774 (55%) |
Source: NBO Review report, page 18.
It is notable that immigration tracing requests accounted for virtually all the increase in tracing requests received by NHS Digital between 2014–15 and 2015–16.
Legal basis for the disclosure of information to immigration services
10.The MoU itself sets out the legal basis for the disclosure of information from NHS Digital to the Home Office:
3.3 NHS Digital may disclose information under s.261(5) of the Health and Social Care Act 2012. Section 261(5)(e) provides a basis for disclosure where the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom); section 261(5)(d) provides a basis for disclosure where the disclosure is made in circumstances where it is necessary or expedient to have the information for the purpose of exercising its functions under or by virtue of any provision of any Act, and s.261(5)(c) provides a basis for disclosure where the disclosure is necessary or expedient for the purposes of protecting the welfare of the individual. These parts of s.261(5) are subject to the common law duty of confidentiality which is not absolute (see s.261(6)): the common law duty may be overridden in certain circumstances including where the public interest justifies disclosure.
11.The legal basis for the disclosure of information under the MoU is subject to judicial review. The grounds for the judicial review relate to the following claimant concerns:
- breach of Article 8 of the European Convention of Human Rights and Article 8 of the Charter of Fundamental Rights of the European Union;
- discrimination contrary to Article 14 (taken with Article 8 of the European Convention of Human Rights) of the European Convention of Human Rights and Article 21 of the Charter of Fundamental Rights of the European Union;
- indirect discrimination contrary to s19 of the Equality Act 2010;
- breach of the Public Sector Equality Duty;
- breach of the Data Protection Act 1998.9
12.In our work on the MoU, we have not sought to examine the legality, or otherwise, of the data-sharing arrangements which it sets out. That is properly for the courts. Our consideration of those arrangements has been focussed on whether they are justified in policy terms, and the ethical considerations, given the concerns which have been expressed about confidentiality and about the potential detriment to individual and public health.
1 https://www.gov.uk/government/publications/information-requests-from-the-home-office-to-nhs-digital [accessed 24.03.18]
2 Response to question 3, Annex A to the letter from the Minister for Public Health to the Chair of the Committee, 7 March 2017.
4 http://www.parliament.uk/documents/commons-committees/Health/Correspondence/2016–17/Correspondence-Memorandum-Understanding-NHS-Digital-Home-Office-Department-Health-data-sharing.pdf
5 NHS Digital, National Back Office Tracing Service review, 7 November 2017 (hereafter “NBO review”).
6 Oral evidence taken on 25 February 2014, Care.data database, HC (2013–14) 1105.
7 See http://www.parliament.uk/business/committees/committees-a-z/commons-select/health-committee/inquiries/parliament-2010/cdd-2014/
8 NBO review. In the 2017 calendar year there were 6,171 immigration tracing requests (MOU0004).
9 Statement of Grounds in the case between Migrants Rights Network (Claimant) and the Secretary of State for the Home Department (First Defendant) and the Secretary of State for Health (Second Defendant) and NHS Digital (Interested Party), available from Migrants Rights Network.
xxprepareddatexx