Joint Committee on Statutory Instruments Thirty-First Report

2 S.I. 2003/2124: defective drafting

Patients' Forums (Functions) Regulations 2003 (S.I. 2003/2124)

2.1 The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

2.2 Regulation 3(1) permits persons authorised by a Patients' Forum to enter and inspect premises owned or controlled by various persons or bodies and, subject to certain exceptions, requires such a person to comply with any request for entry. Regulation 3(2) requires a person making a request for entry to any premises referred to in paragraph (1) for the purposes specified in that paragraph to produce evidence of his authority if so requested. Paragraph (1) does not specify any purposes.

2.3 In a memorandum printed at Appendix 2, the Department of Health states that the reference to the purposes specified in paragraph (1) is an error, that the phrase should have been removed and that a correction will be made at the earliest opportunity. The Committee agrees that regulation 3 requires amendment. But it does not consider that the appropriate amendment would be the removal of the reference in paragraph (2) to the purposes for which the power of entry may be exercised. Section 17(1) of the National Health Service Reform and Health Care Professions Act 2002 (under which regulation 3 is made) enables the Secretary of State to make regulations providing a power of entry for the purposes of any of the functions of a Patient's Forum. In the Committee's view the limitation in the underlined words ought to have been included in regulation 3(1) to make the extent of the power clear, as envisaged by the enabling Act, and it recommends that this is the correction which the Department should make.

2.4 Regulation 5 enables a Patients' Forum to require certain bodies to produce any information which appears to the Patients' Forum to be necessary for the effective carrying out of its functions. Paragraph (1) of regulation 6 qualifies this requirement where the information (a) is confidential and relates to a living individual, unless at least one of the conditions in paragraph (2) applies; or (b) is prohibited from disclosure by or under any enactment or is protected by the common law, unless paragraph (3) applies. The conditions in paragraph (2) are: (a) the information can be disclosed in a form from which the identity of the individual cannot be ascertained, or (b) the individual consents to the information being disclosed. Paragraph (3) applies where: (a) the prohibition on disclosure arises because the information is capable of identifying an individual, and (b) the information can be disclosed in a form from which the identity of the individual cannot be ascertained. Paragraph (4) provides that, in a case where the information falls within paragraph (1)(a) or (3)(b), a person may be required to disclose the information in a form from which the identity of the individual concerned cannot be ascertained.

2.5 Given that any information which is confidential and relates to a living individual falls within paragraph (1)(a), whether or not it is capable of being disclosed in a form from which the identity of that individual cannot be ascertained, the Department was asked to verify the references to paragraph (1)(a) and (3)(b) in paragraph (4). In its memorandum the Department states that the intention was to provide a right to require the disclosure of information falling within paragraph (1)(a) or (3)(a) but in either case only where the information could be anonymised, and it accepts that the references could have been clearer. In the Committee's view this clarification ought to be made at the earliest opportunity.

2.6 The Committee accordingly reports regulations 3(2) and 6(4) for defective drafting, acknowledged by the Department.

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