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Lord Renton: I thank the noble Baroness for giving way. Will she bear this in mind? As I recollect, the cases that she mentioned, and was justified in mentioning, are much more restricted in the grant of absolute privilege. On the other hand, this provision refers to:
- "the publication of any matter by the Commission".
Baroness Hayman: I shall bear it in mind and I shall investigate all the bodies that I have mentioned. As far as the pensions regulatory body is concerned, for the purposes of the law of defamation, the publication of any matter by that authority is absolutely privileged, so that is an analogous situation. However, I do not want to rest simply on precedent. Grave concern has been expressed by Members of the Committee. If the Committee will permit me, I shall give further consideration to the matter and perhaps we can return to it at a later stage.
7 p.m.
Baroness Gardner of Parkes: I have not intervened previously because I have agreed with everything that has been said. However, during the debate on the National Health Service some weeks ago I raised the issue of privilege in relation to internal inquiries in hospitals and referred to the fact that no privilege attached to those cases, as a result of which there was a disincentive for findings to be made completely open and clear. Will the Minister consider an extension of privilege in respect of such cases? Perhaps it would be appropriate to bring forward an amendment at a later stage of the Bill.
Baroness Hayman: I cannot give a commitment to bring an amendment forward, but that issue is the counter-balance to the one we have been considering today. I undertake that when I look at the question of whether absolute privilege is appropriate here I shall
also investigate the matter which the noble Baroness raised as to whether some qualified privilege might be appropriate in other cases.
Baroness Knight of Collingtree: There has been a very slight shift of view from the Minister during the course of the debate but it has been so slight as to leave me without any feeling of confidence that the matters raised by my noble friends will be properly addressed. I cannot see why the slight change in wording from "be absolutely privileged" to "have qualified privilege" should be so hard to accept bearing in mind the clear feeling of Members of the Committee who have great experience in these matters. The Minister said at the beginning that she must listen but not that she must act. She later moved to say that she would consider the matter further. I hope that there will be a clear attempt to meet the concerns of Members in all parts of the Chamber.
Baroness O'Cathain: For once I disagree with my noble friend. I think that the Minister has moved considerably. Perhaps the problem is the shorthand way in which we talk about these matters. I congratulate the Minister because she has listened and has heard. We hope that she will come back with what we consider to be the right statement.
Baroness Hayman: I am grateful to the noble Baroness. Obviously I did not express myself clearly. I was trying to suggest to the Committee that the Government's original proposals were not without precedent and that we did not think that they were without merit but that I had listened carefully to the considerable concerns expressed in the Committee and that I should like a little time to consider the issue in the hope that we might be able to bring forward something at a later stage that would be satisfactory to the Committee.
Earl Howe: I am extremely grateful to the Minister. She is, as we all know, a listening Minister. What she has said is all that I could reasonably expect of her at this stage, after what has been a very useful debate. I am extremely grateful to all Members who have spoken.
Frankness and openness is all very well, but it cuts two ways sometimes. It is all too easy to imagine a situation in which it can lead to grave unfairness. The point of my amendment was to suggest that qualified privilege was a more than adequate substitute for absolute privilege. It would allow CHIMP to be totally frank and open because it would be possible to challenge it effectively only if it were shown to be malicious or if the information was known to be false.
I agree with my noble friend Lord Renton. I am not sure that the other examples of absolute privilege are entirely relevant in this context. We are relying on an assurance from the Minister that CHIMP will be entirely responsible. We all hope that it will be. She believes that it will be and I am sure that most Members of the Committee believe it will be, but that is all we can say at the moment.
The point raised by the noble Lord, Lord Walton of Detchant, is extremely pertinent. The accidental release of otherwise confidential documents or comments on the Internet or indeed in any other way makes one all too conscious of the issues here.
My final comment relates to what the Minister said about judicial review. I do not believe that judicial review would provide a proper safeguard. It would allow for challenges against the commission's work only where it was seen to be ultra vires or in matters where the commission had judged in its own cause. I am not clear that judicial review is an adequate substitute. However, I am grateful to the Minister for what she said and for the time being I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 113 and 114 not moved.]
Clause 16 [Obtaining information etc.]:
[Amendments Nos. 115 to 117 not moved.]
Lord McColl of Dulwich moved Amendment No. 118:
The noble Lord said: In moving Amendment No. 118, I should like to speak also to Amendments Nos. 119 and 121 and 124 to 128. These amendments concern patient confidentiality.
Amendments Nos. 118 and 124 are designed to ensure that deceased persons and patients no longer in contact with their doctor have the same rights to confidentiality over their medical records as do individuals who are still alive.
Amendment No. 120 is designed to ensure that even if an individual cannot be traced their confidentiality should be protected. We believe that CHIMP should not be able to name individuals in its reports or disclose their details until 30 years after the recorded death of an individual. It is odd that the commission is able to make public details of patients without any hindrance immediately after their death. Publication of details, especially relating to the recently deceased, can cause distress to relatives and friends. Moreover, they would have no say as to whether such details can be made public because CHIMP has, or may have, absolute privilege in respect of what it says. They would have no recourse to law if damaging or otherwise incorrect details were made available about relatives who had recently died. We feel that a reasonable period of time should elapse before disclosure.
I am sure the Committee will agree that personal health information is collected for the provision of care to individual patients and generally should not be used for other purposes without the patient's permission. Only where there are exceptional circumstances may information be used without consent--for example, where disclosure is essential to avoid a risk of death or serious harm to people and it is not possible to obtain consent.
The grounds for disclosure must be of sufficient severity to justify a breach of the duty of confidentiality. That duty of confidentiality extends to all patients and endures beyond their death. The law relating to statutory rights of access prohibits doctors from disclosing information which patients gave on the understanding that it would remain confidential. As with living patients, this confidentiality may be breached only where it is essential to protect the vital interests of others.
Amendments Nos. 119 and 121 seek to provide a better safeguard against the identification of patients from documentation or information that is available to the commission. If the standard is simply that an individual cannot be identified from the documentation or information alone, that is a major cause of concern. The amendments seek to raise the level of protection of the patient's identity akin to that set out in the Data Protection Act 1998. Amendments Nos. 127 and 128 seek to raise the standard of reasons for disclosure to the same splendid standards as those issued by the General Medical Council. I beg to move.
Lord Walton of Detchant: I very warmly support these amendments, although I have minor reservations about whether it is necessary to place on the face of the Bill a specific time limit upon the disclosure of such information. During my presidency of the General Medical Council many years ago a spirited debate took place on the whole question of whether it was ever proper for a medical historian in writing a book or paper to disclose information about an individual who had died some time ago. That issue was highlighted by a book review published in a prestigious medical journal. Information in an anonymous review had made it clear that the author of the review had known the public figure who was the subject of the book being reviewed and had in consequence disclosed some quite disturbing confidential medical information. That had raised a great deal of anxiety. The GMC stated very clearly that in the doctor's duty of confidentiality to his or her patient the death of the patient did not absolve the practitioner from that responsibility. Hence, I believe it to be very important that this issue should be clarified. For that reason I warmly support the amendments.
I am disappointed to learn that the Government have decided that CHIMP should not apply to the independent private health sector. The Registered Homes Act 1984 covers a number of independent hospitals but not a very large number of private hospitals that now provide a wide range of acute care. At Second Reading I expressed concern about the fact that there was no legal protection at the moment, at least not in statute, against an individual working as a non-clinical member of staff in a private healthcare organisation disclosing confidential information about a patient. The noble Baroness was kind enough to write to me in detail about this issue. She indicated that not only were such staff subject to a statutory duty, as under the Data Protection Act 1998, to respect the confidentiality of information, but that they would also have a personal common law duty of confidence to both patients and their employers.
However, the BMA remained concerned in that it believed that common law protection was not enough. The commission and its staff must comply with these duties. On the rare occasions on which CHIMP required access to confidential patient information this would occur only in limited circumstances. CHIMP would be able to access such information only with consent and that would be looked at by a clinical member of the CHIMP review or investigative team. I was reassured to learn from the noble Baroness that the Government proposed to introduce a new criminal offence relating to the unauthorised disclosure of confidential information by the commission, its staff or those working with the commission in the exercise of its functions. But I pose the following question: does that proposal cover individuals who may in the past have worked for the commission or, for example, a private healthcare organisation? Does the duty of confidentiality persist even after that individual is no longer employed by the commission or that other health body?
Lord Clement-Jones: I rise to speak to Amendment No. 126, which is part of this grouping. However, I have considerable sympathy with the other amendments in the group. In particular, I believe that we must listen with care to the observations of the noble Lord, Lord Walton, about this matter not being four square with the way in which clinicians currently believe their duties of confidentiality must be exercised. Can the Minister say what consultations have taken place with the medical profession on the provisions of this clause? Clearly, this is a matter of considerable importance. Amendment No. 126 itself arises out of concerns on the part of the medical profession. Although previously, under the Police Act, the medical profession was entitled to disclose information only when a serious criminal offence had been committed, we now find that under the provisions of this Bill the word "serious" has been deleted. The secondary legislation under the Police Act drew attention to the special sensitivities of medical confidentiality. Certainly, those representatives of the medical profession who have made representations to me do not wish to see the confidentiality of information exchanged between a patient and doctor compromised. How is this provision to be exercised? More generally, is there any way in which we can beat out a common set of provisions on confidentiality with which clinicians can be perfectly happy and which the Government find acceptable?
Page 13, line 22, after ("individual") insert ("or a deceased person").
7.15 p.m.
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