Oral evidence in January 2018, and our response
Oral evidence on 16 January
13.We took oral evidence on 16 January from representatives of three non-governmental organisations concerned with the welfare of immigrants, Public Health England, and a representative of the National Data Guardian. At the same hearing we also heard evidence from Ministers and officials in the Home Office and Department for Health and Social Care, and from the Chief Executive of NHS Digital and the senior non-executive director who concluded NHS Digital’s National Back Office review. The transcript of that session is available on our website.10
Our letter to NHS Digital
14.Following the session, on 29 January, we wrote to NHS Digital requesting that it withdraw from the MoU and stop sharing information with the Home Office for immigration tracing purposes, pending a review of its assessment of the public interest test. The full text of our letter can be found as an appendix to this report. In outline, we argued:
- the Home Office has a responsibility to seek to identify immigration offenders, to re-establish contact with them, and to take the required enforcement action, and it is understandable that it should seek from NHS Digital information which would assist it in fulfilling that responsibility;
- however, NHS Digital should not place assistance to the Home Office above the serious adverse consequences of a decision to share information with them;
- NHS Digital has not fully considered and appropriately taken account of the public interest in maintaining a confidential medical service, or appropriately considered the ethical implications of its decision;
- there has been inadequate consultation on the practice of data-sharing, and the concerns of the General Medical Council and the National Data Guardian have not been adequately addressed;
- data-sharing is taking place in a manner which is incompatible both with the guidance on confidentiality given by the GMC and the NHS Code of Confidentiality; and
- the advice given by the Government’s statutory public health adviser, Public Health England— “the perceived or actual sharing of identifiable information from confidential health records in order to trace individuals in relation to possible immigration offences [ … ] could present a serious risk to public health and has the potential to adversely impact on the discharge by PHE of the Secretary of State’s statutory health protection duty”—has been ignored.
15.We concluded
For those reasons, we request that NHS Digital suspend the MoU immediately, and undertake a further and more thorough review of the public interest test. In order to ensure that there is no continued conflict between the standards of confidentiality applied in different parts of the health system, consideration of the public interest test, and whether the arrangements set out in the memorandum of understanding should be resumed, should not be undertaken until NHS England’s review of the NHS Code of Confidentiality is complete.[11] The decision about the application of the public interest test should be undertaken in the light of the reviewed Code, and the sharing of data held by the NHS for immigration enforcement should not be resumed in the meantime. Furthermore, the decision about the application of the public interest test should be taken in the light of public consultation, and with the full participation of both the General Medical Council and the National Data Guardian.
16.We went on to point out that “the evidence which has been presented to us in the course of our brief inquiry suggests very strongly [ … ] that the public interest in the disclosure of information held by the NHS is heavily outweighed by the public interest in the maintenance of a confidential medical service”, and we expressed our disappointment about NHS Digital’s approach to the issue. We noted NHS Digital’s duty, under section 253(1)(ca) of the Health and Social Care Act 2012, to have regard to “the need to respect and promote the privacy of recipients of health services”, and indicated that we expected NHS Digital to take the opportunity to demonstrate that it took its duties in respect of confidentiality seriously by listening to the concerns raised about the MoU and taking action accordingly.
Responses from Ministers and from NHS Digital
17.We received responses to that letter from Home Office and DHSC Ministers and from NHS Digital on Friday 23 February. They have also been published on our website.12
18.The letters rejected the case for suspending the memorandum of understanding. The Ministers’ letter set out the policy considerations which underlay the arrangements in the MoU, and argued that our letter had not given due weight to the public policy objective of maintaining the effective enforcement of the UK’s immigration laws. NHS Digital’s response acknowledged the arguments made in the Ministers’ reply, and noted that its “consistent conclusion has been that the public interest in supporting the effective enforcement of immigration law outweighs concerns that this minimal level data sharing in relation to this very tightly defined set of individuals might genuinely impact broader public trust in a confidential health service.”
19.In accordance with the final sentence of our letter to NHS Digital, we called its Chair and Chief Executive back to give further evidence on 15 March 2018. We indicated in our letter that they would be “required to provide a very much more convincing case for the continued operation of this MoU than has been presented so far.”
20.The transcript of that session is also available on our website.13
10 https://www.parliament.uk/business/committees/committees-a-z/commons-select/health-committee/inquiries/parliament-2017/mou-data-sharing-nhs-digital-home-office-inquiry-17–19/publications/ (HC 677)
Published: 15 April 2018