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