45.We repeat the conclusion of our 29 January letter that NHS Digital should suspend its participation in the memorandum of understanding. 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 of 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. The decision about the application of the public interest test should be undertaken in the light of the reviewed Code, after proper consultation with all interested parties on the specific practice of data-sharing for the purposes of immigration tracing, and with the full involvement of experts in medical ethics.
46.Reconsideration of the public interest test will also require reconsideration of the risks to public health posed by sharing data with the Home Office for immigration tracing purposes. In our letter of 29 January, we noted that the advice from the Government’s statutory advisers on public health, Public Health England (PHE), was very clear: “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”. We remain of that view, and consider that the evidence presented by PHE should have been taken more seriously when the public interest test was conducted.
47.We argued that the commissioning of PHE to carry out a further evidence review appeared to be little more than window-dressing. Given the clarity of the evidence originally presented, and the difficulty of collecting “robust statistical evidence” about the effects of the MoU on a population—migrants with whom the Home Office has lost touch—which is by definition hard to reach, we remain unconvinced of the value of the exercise on which PHE is now engaged.
48.Nevertheless, we hope that any evidence Public Health England might be able to collect will add to the weight of the evidence already available on the deterrent effect on this vulnerable population to seeking healthcare which is crucial to avoiding the potential spread of communicable diseases. We recommend that when it reports at the conclusion of its review of the evidence of the impact of the MoU on health-seeking behaviours, Public Health England (PHE) restate its conclusion on the basis of the evidence already available, and then report on whether its further research has collected any evidence which would be sufficient to change the view it had already reached. The reassessment of the public interest test carried out once the review of the NHS Code of Confidentiality is complete should take into account—and give proper weight to—all the evidence PHE presents.
49.The review of the NHS Code of Confidentiality should also consider and consult upon the statement of Government policy on data-sharing which was contained in the Ministers’ response to our letter of 29 January, and advise Ministers on whether it is an appropriate statement of policy on the sharing of data collected and held for the purpose of health and care.
Published: 15 April 2018