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Lord Clement-Jones: My Lords, I thank the Minister for that reply and am grateful to her for re-examining both the definition and the "entrails". The Minister's more comprehensive reply this time round and the previous absolute assurance that local authorities will not be able to charge for healthcare will be of considerable reassurance once the Bill has passed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [The Commission for Health Improvement]:
Baroness Hayman moved Amendment No. 14:
On Question, amendment agreed to.
Clause 17 [Functions of the Commission]:
Clause 19 [Restrictions on disclosure of information]:
Baroness Hayman moved Amendment No. 16:
The noble Baroness said: My Lords, in moving Amendment No. 16, I should like to speak also to Amendment No. 17. In previous debates, considerable concern was raised about this provision, which is Clause 19(5)(e). I have listened to this concern, and am grateful for the comments on how we might amend the provision. As I indicated earlier, we have been reflecting on the most appropriate precedent to use to allow the commission to disclose confidential information only in connection with the investigation of a serious criminal offence. I hope these amendments will satisfy your Lordships' concerns.
The amendments have been drafted to allow disclosure of confidential information only in connection with a serious arrestable offence. Such offences would include murder, manslaughter and rape. For England and Wales, a "serious arrestable" offence is defined in accordance with Section 116 of the Police and Criminal Evidence Act 1984. That Act applies only to England and Wales, so a reference to it will not be sufficient to cover the investigation of serious arrestable offences in other parts of the UK. Therefore, we have also used the definition of "serious arrestable offence" in Article 87 of the Police and Criminal Evidence (Northern Ireland) Order 1989, to cover offences in Northern Ireland. I am informed that in Scotland there is no direct equivalent to the term "serious arrestable offence", but that the nearest equivalent term for an offence triable in Scotland would be an "offence triable on indictment". These definitions, we feel, capture those crimes which are of a sufficiently serious or grave nature to warrant the commission being allowed to disclose confidential information to the police for the purposes of an investigation.
I hope that noble Lords will feel that we are therefore meeting the concerns raised about the commission's lawful authority to disclose confidential information.
While on the general subject, perhaps I may take this opportunity to report back on the other matters relating to confidentiality to which I undertook to pay further attention. In addition to the issue which I hope is resolved by this amendment, I undertook to look again at two further areas. They are, first, the safeguards on disclosure of information about the deceased and, secondly, safeguards regarding information which identifies an individual or enables that individual to be identified.
In these areas we have undertaken further discussion with the professions. It is important that we get this right. From previous debates noble Lords will know that the question of handling information about the deceased is difficult. Nevertheless, we wish to find a way forward which will properly safeguard the confidentiality of information relating to the deceased.
Noble Lords are aware that the extent to which the legal duty of confidentiality extends beyond death is unclear, and that, generally speaking, no one has a legal authority to give consent on behalf of a deceased individual for access to or disclosure of confidential information.
In the light of these significant legal uncertainties and complexities, we intend to issue guidance to the commission. We will look to further our helpful discussions with the professions on how such guidance might be drawn up; for example, how it might reflect the ethical duty of confidentiality that all health professionals have to their patients, living or dead, and how it might provide clarity on the circumstances under which information about the deceased might be disclosed where this is justified only on reasonable grounds. Any such guidance would also need to make clear the contractual duty of confidentiality that the commission's staff will have with regard to access to and disclosure of confidential information about individuals. We are considering whether there is an appropriate way of including a provision in the Bill relating to such guidance.
As regards the second point, we share the concern expressed by several Members of your Lordships' House that in some circumstances the identity of an individual may be ascertained from anonymised information where this is combined with other information.
We propose to bring forward amendments to the Bill at a later date which we hope will address these concerns. These will aim to tighten up the provisions in the Bill to protect the confidentiality of information about individuals. I hope that today I have been able to provide some clarity on our intentions in some areas relating to confidentiality and to bring forward specific amendments which deal with the seriousness of the offence for which the commission will have the authority to disclose confidential information. I beg to move.
Lord Clement-Jones: My Lords, I thank the Minister for bringing forward this amendment which conforms very closely to the suggestion I made at Report stage as regards the definition of a serious arrestable offence. I am quite sure that the medical profession will be very reassured that it now aligns the duties in the Bill very closely with its commonly accepted professional standards and duties.
On Question, amendment agreed to.
Baroness Hayman moved Amendment No. 17:
On Question, amendment agreed to.
Clause 22 [Co-operation between NHS bodies]:
Baroness Masham of Ilton moved Amendment No. 18:
The noble Baroness said: My Lords, this amendment covers the same principle as that in Amendment No. 7, which has been agreed to. The amendment has been spoken to and I hope that it will be agreed. I beg to move.
On Question, amendment agreed to.
Clause 34 [Controls: supplementary]:
Baroness Hayman moved Amendments Nos. 19 to 22:
On Question, amendments agreed to.
Clause 36 [Disqualification etc. of Part II practitioners]:
Lord Hunt of Kings Heath moved Amendment No. 23:
The noble Lord said: My Lords, in moving Amendment No. 23, I shall also speak to Amendments Nos. 24 to 34, Amendments Nos. 75 and 76 and Amendment No. 86 regarding the NHS tribunal in England and Wales and Amendments Nos. 38 to 61, 80, 81 and 90 which affect the provisions for the NHS tribunal in Scotland.
It may be easier if I speak first to the amendments for Part I of the Bill for England and Wales. These amendments attempt to clarify the provisions in Clause 36 of the Bill governing the NHS tribunal in England and Wales. There are also minor consequential amendments to Schedule 4 and Schedule 5.
The NHS tribunal is the ultimate disciplinary body for family health service practitioners. Clause 36 provides new powers for the tribunal to disqualify practitioners who commit fraud against the NHS. Noble Lords will know from previous debates that the tribunal currently only investigates cases where it is alleged that the continued inclusion of a practitioner on a health authority's list for that service would be prejudicial to the efficiency of that service. It is a small minority of practitioners who commit fraud against the NHS, but it is a minority which needs to be tackled.
The majority of the amendments introduce minor textual changes such as the introduction of the terms "local disqualification" and "national disqualification" which attempt to make the clause clearer for the reader. In particular I draw the attention of the House to Amendments Nos. 33 and 34 which, in the main, make drafting changes to clarify the action that the tribunal may take on review of a fraud case. As your Lordships will be aware, Clause 36 introduces several new sections into the 1977 Act. In order to aid understanding, Amendment No. 34 also introduces two new provisions into one of these new sections, the new Section 47, so that fewer provisions will need to be read in conjunction with the others. These are, first, that the tribunal shall not impose any disqualification on review where it would be unjust to do so and, secondly, to clarify when a determination on review would have effect.
As regards Amendments Nos. 38 to 61, 80, 81 and 90 affecting the NHS tribunal in Scotland, the Scottish tribunal is essentially similar to the tribunal for England and Wales. It draws its powers from the 1978 Act to which Clause 50 and these amendments seek to make changes. Noble Lords will recall that I introduced a number of amendments at Report stage which added some important new provisions to those already in the Bill. At that time I informed your Lordships' House that my noble friend Lord Macdonald of Tradeston was looking to bring forward similar amendments to those I had brought forward at that stage.
I shall not go over all the same ground that I covered rather extensively on Report. However, I shall briefly mention that they cover a range of areas including allowing the NHS tribunal in Scotland to disqualify bodies corporate which commit fraud from providing ophthalmic and pharmaceutical services in the family health services. There is an amendment to the definition of fraudulent conduct to provide a clearer
As regards England and Wales, these amendments do not change the fundamental purpose or impact of the existing tribunal provisions in the Bill, but they are needed for clarity and to ensure that the NHS tribunal can work as intended. These provisions are part of our comprehensive strategy for countering fraud in the National Health Service. I beg to move.
Page 16, line 33, leave out from ("Improvement") to end of line.
Page 20, line 30, leave out from ("of") to end of line 31 and insert ("a serious arrestable offence,").
Page 20, line 45, at end insert--
(""serious arrestable offence"--
(a) in relation to England and Wales, is to be construed in accordance with section 116 of the Police and Criminal Evidence Act 1984,
(b) in relation to Scotland, means an offence which is triable on indictment,
(c) in relation to Northern Ireland, is to be construed in accordance with Article 87 of the Police and Criminal Evidence (Northern Ireland) Order 1989.").
Page 22, line 4, at end insert--
("(2) The duty in subsection (1) applies in particular to co-operation in enabling patients resident in an area covered by a body referred to in that subsection to be referred out of that area where appropriate for the purpose of receiving specialist hospital treatment and after-care.").
Page 30, line 37, leave out (" 29(2)(a), (7) and") and insert (" 29(6) to").
Page 31, line 10, leave out ("and") and insert--
("(4A)").
Page 31, line 15, after ("Act") insert ("and section 49 of, and Schedule 10 to, the 1978 Act").
Page 31, line 22, at end insert ("or, as the case may be, the 1978 Act").
5.45 p.m.
Page 37, line 40, leave out from ("to") to ("when") in line 41 and insert ("disqualify, or conditionally disqualify, him").
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