Joint Committee On Human Rights Eighth Report

2. Letter from Jacqui Smith MP, Minister of State, Department of Health, to the Chairman


I have seen the second report by the JCHR on the Delayed Discharges Bill and would like to respond, in particular to paragraphs 11­14 of the report.

The report outlines the concern raised by Age Concern about the requirement in the Bill for a social services authority to carry out an assessment of a patient's need for social services even in the case where the patient refuses to co­operate with the assessment. The concern is that there would be a strong temptation on the part of both the social worker doing the assessment to seek and the NHS body involved to provide sensitive or confidential medical information about the patient so that the assessment can be more fully completed and the patient can be discharged safely. If this were to happen this would be more likely to be a breach of Article 8, unless a very strong justification under Article 8.2 could be put forward. The Committee accept that there may be circumstances in which such disclosure of information would be justifiable under Article 8.2. However, they are concerned that the Bill makes no reference to a proper procedure to be followed within a hospital to ensure that various competing rights and interests are properly balanced. Therefore they recommend that the Bill should be amended to include on its face a requirement for NHS bodies to adopt an appropriate procedure for balancing rights and interests affected.

The Government is grateful to the JCHR for its report. But the Government does not think that the Bill enables NHS bodies to go as far as the Committee suggests, and in any event existing protections about sensitive personal information being disclosed by NHS bodies are sufficient.

The notice required under section 2 should not contain any sensitive or confidential medical information. The regulations will require that the notice includes the patient's name, the patient's expected admission date if not already admitted, the hospital in which the patient is or is expected to be accommodated, an indication of the patient's likely discharge date if known, and the name of the person at the hospital who will be responsible for overseeing the patient's discharge process. This is the information which the regulations specify must be contained in the section 2 notice. If the NHS body includes any other information, that will be a separate decision by them, and not part of what makes up the section 2 notice itself.

Once the notice has been given it will remain open to a patient to refuse to co­operate with an assessment. If the patient so refuses it will be for the social services representative to carry out what assessment is possible, taking into account the refusal of the patient to cooperate and the consequent dearth of proper information. We do not anticipate in such a case that the NHS body will disclose any personal sensitive information. Even if they did we think that it would be of limited use to the local authority. The local authority is the body which needs to take a view about what services a person will need when he leaves hospital. Even if the NHS body thought that it would be useful to pass on some information, in order to do so they would have to comply with obligations not only under Article 8 of the ECHR, but also under the Data Protection Act 1998 and the common law duty of confidentiality. In a case where the patient continues to refuse to co­operate, the social services assessment will be very limited as to what needs it can properly identify the patient as having. The decision as to what services it will provide to meet those needs will perforce be equally limited. Faced with a decision by the social services authority to provide very limited services, it is likely that the NHS body will conclude that it is not safe to discharge the patient with only those limited services. The patient will therefore either remain in hospital while the NHS body considers options, or the patient will choose to discharge himself or herself, which is his or her right. But there will be other cases where a person who is originally reluctant to be assessed for social services assistance may, after he has spoken further with social care staff, accept such assistance. In this way requiring the NHS body to notify social services can result in a person's rights being enhanced.

The above scenario is not any different from what happens now. In a case where a patient refuses to co­operate with social services, it is for the NHS body to consider its position and take a view as to the next step. It could opt to put in place sufficient health services so as to allow the patient to be discharged safely. It could decide that disclosure of medical information to the relevant social services authority was in this case justified under Article 8.2 and also that any requirements under the Data Protection Act 1998 had been met so as to enable such a disclosure, although the Government do not see that such a disclosure would be significantly helpful. Medical information, although helpful, will not be enough on its own for a community care assessment to be satisfactorily completed; non­medical information about what the patient can and cannot actually do is what is needed. In any case, the requirements of the Delayed Discharges Bill do not affect this decision by the NHS body in a way which would cause that body to behave differently to how it would behave under current discharge systems.

We have no doubt that both social services authorities and NHS bodies are mindful of their obligations to safeguard personal information. Guidance issued recently to both the NHS and social services authorities (the Single Assessment Process) already sets out the point that the two public authorities need to have proper procedures and protocols in place when sharing and disclosing information about patients and service users. The Bill does not require, nor does it actively encourage, any further disclosures than may take place currently. Indeed guidance which will be issued to accompany the Bill will actively discourage any disclosure unless the relevant public authority is satisfied that its obligations as to disclosure of patient information are met.

Because of these points, the Government disagree that there is a need for an amendment along the lines suggested in paragraph 14 of the JCHR's Report. Indeed, in the Government's view, such an amendment may suggest that the Bill was actively encouraging or permitting disclosure other than that specified in the regulations. We take the view that the Bill ought not to do so, and that public authorities are already required to abide by their data protection, ECHR and confidentiality obligations where they propose to give any further information than that required in the section 2 notice.

I hope this explanation demonstrates the Government's continuing commitment to maintaining the rights of the patient with regard to confidentiality of data or sensitive information.

27 March 2003

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