Legislative Scrutiny: Coroners and Justice Bill - Human Rights Joint Committee Contents

Memorandum submitted by the British Medical Association

  1. The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine throughout the UK. It has a membership of over 141,000 doctors.


  Whether the new provisions for the creation of information sharing gateways by secondary legislation compatible with the right to respect for private life, and in particular the right to respect for personal information (Article 8 ECHR and the common law).

  2. The BMA is extremely concerned about the impact of Clause 152 of the Coroners and Justice Bill on the confidentiality of personal medical records. The Clause gives ministers of state the power to enable the sharing of any data that fall within their sphere of responsibility without the consent of the data subject. It therefore permits the Minister of State for Health to order the sharing of confidential health information without the consent of the patient to whom the data refers, and irrespective of the views of the individual data controller, such as the doctor, who has requested the information on the presumption that it will remain confidential. It enables the appropriate minister to set aside the common law duty of confidentiality, which has developed over many years and balances the interests of both private individuals and the public, and the confidentiality requirements of the Data Protection Act.

  3. The relationship between doctor and patients is based on trust. In the course of consultation and treatment, patients will often disclose highly sensitive information to their doctors, information that can be vital to ensuring the provision of appropriate care and treatment. This information is disclosed on the basis that information will be kept confidential. The Bill as drafted will mean that doctors will no longer be able to reassure patients that their information will only be seen by those with a direct professional interest in their care. It will undermine the presumption of confidentiality, corrode trust in the doctor-patient relationship and will potentially have a disastrous impact on both the health of individuals and of the public. Many key public health goals will be put at risk. Detail on the Government's intentions is sparse, but as currently drafted there is nothing in the Bill that would prevent the Government, in theory, overturning the confidentiality clauses of the HFE Act or even of the Venereal Disease Regulations. The BMA is extremely concerned that this Bill will also destroy confidence in the NHS Care Record Service and will result in patients either withholding vital information or of opting out of the care record system altogether.

  4. The particular sensitivity of medical information, and the fact that it is afforded special protection by Article 8 ECHR was recently established by the House of Lords in the case of Campbell v MGN. The case involved a balancing of Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression. In the view of the House of Lords, the fact that the information relating to Ms Campbell was health information gave it particular status under Article 8. In the BMA's view, this status derives from several aspects:

    —  the nature of the harms that could befall individuals through inappropriate access to and use of their confidential medical information;

    —  the harm that could accrue to individuals if concerns about confidentiality result in a failure either to disclose relevant health information or to access health services at all; and

    —  the public health impact of a loss of faith in confidentiality leading to lower uptake of health services.

  5. Confidentiality therefore is central to ensuring both the highest standards of personal health, the maintenance of general public health, and to the pursuit of public policy goals in health. Clause 152 threatens to undermine each of these, leading to potentially disastrous unintended consequences. In the BMA's view the Clause should either be removed in its entirety or restricted to appropriately anonymised information.

Whether the new powers of the Information Commissioner to issue assessment notices should extend to the private sector

  6. The new powers of the Information Commissioner to issue assessment notices should extend to the private sector. The Data Protection Act covers both the public and private sectors and misuse of data by either sector would be equally damaging to the public. Whilst government data losses have received greater media attention, there have been cases where private companies have lost data. An example is the loss of thousands of criminal records by PA Consulting in September 2008.

  7. The extension of these powers is particularly important in relation to health data. There has been an increase in the number of private providers providing care to NHS patients. It would be nonsensical for the same data to be regulated differently and patients should be offered the same guarantees of confidentiality regardless of who provides their care. Patient data is also handled by private companies for reasons not directly related to patient care for example for research purposes. Whilst this research may be valid and approved there are still anxieties about the private sector handling patient data. Patients tend to be less trustful of private companies, who may have commercial interest in the data, and therefore scrutiny of private sector organisations is arguably of even greater importance.

  8. In practical terms it should be recognised that there is a limit to the work that the Information Commissioner's office can undertake and extending these powers to the private sector will present a huge task. There needs to be transparent criteria and processes in place for selecting and prioritising, which organisations should be subject to assessment notices. Criteria should include the sensitivity of the data, the amount of data held and evidence of bad practice.

February 2009

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