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Lord Falconer of Thoroton moved Amendment No. 332A:
- Page 33, line 36, at end insert--
The noble and learned Lord said: Amendment No. 332A is necessary in order to correct technical deficiencies in the way in which the clauses are cross-referenced in the amendment which has been withdrawn. The amendment does not in any way affect the substance of the amendment that it replaces which has already been debated. I apologise if the inclusion of a technically deficient amendment in the Marshalled List has caused any confusion. The substantive effect of the amendment is to ensure that Clause 64 and what will become Clause 65, which is now entitled "Decisions relating to certain transferred public records", are mutually exclusive. Clause 64 refers to historical records in the hands of all public authorities, except for those transferred public records in the hands of the Public Record Office which are dealt with under Clause 65. I beg to move.
On Question, amendment agreed to.
Clause 64, as amended, agreed to.
Lord Falconer of Thoroton moved Amendment No. 333:
("( ) This section does not apply to information to which section (Decisions relating to certain transferred public records) applies.").
After Clause 64, insert the following new clause--
(" .--(1) This section applies to any information which is (or, if it existed, would be) contained in a transferred public record, other than information which the responsible authority has designated as open information for the purposes of this section.
(2) Before determining whether--
(a) information to which this section applies falls within any provision of Part II providing that the duty to confirm or deny does not arise, or
(b) information to which this section applies is exempt information,
the appropriate records authority shall consult the responsible authority.
(3) Where, as respects any information to which this section applies, the duty to confirm or deny is excluded only by a provision of Part II not specified in subsection (3) ofsection (Effect of exemptions), any question as to the application of subsection (1)(b) of that section is to be determined by the responsible authority instead of the appropriate records authority.
(4) Where any information to which this section applies is exempt information only by virtue of any provision of Part II not specified in subsection (3) of section (Effect of exemptions), any question as to the application of subsection (2)(b) of that section is to be determined by the responsible authority instead of the appropriate records authority.
(5) Before making by virtue of subsection (3) or (4) any determination that subsection (1)(b) or (2)(b) of section (Effect of exemptions) does not apply, the responsible authority shall consult--
(a) where the transferred public record is a public record within the meaning of the Public Records Act 1958, the Lord Chancellor, and
(b) where the transferred public record is a public record to which the Public Records Act (Northern Ireland) 1923 applies, the appropriate Northern Ireland Minister.
(6) Where the responsible authority in relation to information to which this section applies is not (apart from this subsection) a public authority, it shall be treated as being a public authority for the purposes of Parts III, IV and V of this Act so far as relating to--
(a) the duty imposed by section (Special provisions relating to public records transferred to Public Record Office, etc)(3), and
(b) the imposition of any requirement to furnish information relating to compliance with Part I in connection with the information to which this section applies.").
On Question, amendment agreed to.
Clause 65 [Decisions as to discretionary disclosure of records in public records offices]:
On Question, Whether Clause 65 shall stand part of the Bill?
Lord Falconer of Thoroton: I have already indicated my intention to oppose the Question that Clause 65 stand part of the Bill.
Clause 67 [Extension of meaning of "data"]:
The Earl of Northesk moved Amendment No. 334:
The noble Earl said: The Data Protection Act applies to individuals and, accordingly, affords no protection to companies in so far as any right to ensure that information held on them by a public authority is accurate. The enactment of this Bill will give the public right of access to information held on companies which work with public authorities. We believe that there is a lacuna here. The amendment would broaden the scope of the Data Protection Act to make sure that companies have the same right as individuals to ensure that information held on them is correct. This is important. If business organisations do not have that right there is a real risk that incorrect or inaccurate information will be released into the public domain under an FOI request, and in turn that can have grave commercial consequences for the companies concerned. I beg to move.
Lord Falconer of Thoroton: In effect this amendment proposes a change to the Data Protection Act 1998 to extend its protection to individuals also to companies. The 1998 Act gives effect to the EC Data Protection Directive of 1995. That directive, like the Act, is also about individuals, not companies. Like the Act, the directive was drawn up having regard to the particular needs of individuals. It is wholly unreasonable to suppose that the carefully devised rules in the 1998 Act to protect individuals' data are, without any refinement, applicable to information about companies.
If the noble Earl believes that there is a need for new legislation to protect information about companies, the right approach is to come forward with some carefully worked out, focused proposals rather than piggy-back on an existing piece of legislation. If the noble Earl's intention is to limit the scope for public authorities to disclose information about commercial undertakings under the FOI Bill, the amendment is unnecessary. There is already adequate provision in Clause 39 to protect information received in confidence. Under Clause 41, information that constitutes a trade secret is exempt, as is information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, including those of the public authority which holds the information. I do not believe that the new clause is either necessary or appropriate, and I invite the noble Earl to withdraw the amendment.
The Earl of Northesk: I thank the noble and learned Lord for his reply. Not surprisingly, I suspected that the arguments he adduced would provide the bar for acceptance of this amendment. I shall read carefully the words of the noble and learned Lord and may--one never knows--adopt his suggestion. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Masham of Ilton moved Amendment No. 335:
Page 35, line 3, after ("(d);",") insert--
( ) in the definition of "data subject", after the word "individual" there is inserted "or company",
( ) for the definition of "personal data" there is substituted--
""personal data" means data which relate to--
(i) a living individual, or
(ii) a company (but only where those data are held by a public authority);
where the individual or the company can be identified from those data, or from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual or company and any indication of the intentions of the data controller or any other person in respect of the individual,").
After Clause 68, insert the following new clause--
(" . In section 7(10) of the Data Protection Act 1998 (right of access to personal data) at the end of the definition of "the prescribed period" after "be prescribed" there is inserted "and in the case of a request under section 7 which relates only to data recorded in a health record, in the forty days immediately preceding the date of the request "the prescribed period" means 21 days;".").
The noble Baroness said: In moving Amendment No. 335, I should like to speak also to Amendments Nos. 336 and 337. I wish to convey to the Committee the apologies of the noble Earl, Lord Howe, who has supported this group of amendments. He had to be in Buckinghamshire tonight. I should like also to convey the apologies of the noble Baroness, Lady Wilkins. Unfortunately, she is ill. I hope very much that she will return to the rigours of your Lordships' House by the time we debate the Bill on Report. She has a great deal to offer on these amendments.
These three amendments deal with patients' rights to see and amend their own health records under the Data Protection Act 1998. One of the amendments applies also to social work, schools and housing records. They reinstate some aspects of these rights that existed under previous legislation but which were removed when the 1998 Act came into force in March of this year. Patients have had the right to see their manual health records since 1991 under the Access to Health Records Act 1990. Computerised health records have been available since before that time under the old Data Protection Act 1984. Both measures have been replaced by the new Data Protection Act.
For the most part, the change has been helpful. There is now a single right of access by individuals to their own files, not only in the field of health, but across the board. Anyone who feels that they have wrongly been denied access can now complain to the Data Protection Commissioner and thus benefit from this more accessible complaint mechanism. However, some elements of the previous rights of access have been lost. These amendments seek to reinstate them.
Amendment No. 335 would restore the 21-day period for giving access to health records when the request is limited to information recorded during the previous 40 days. Amendment No. 336 would restore the previous right of individuals to add a statement of their views about any disputed matter to their health records and certain other records. Amendment No. 337 would limit the charges that can be made for supplying patients with photocopies of their health records.
Amendment No. 335 deals with the period of time allowed for access to health records to be given. Under the old Access to Health Records Act, the record holder had up to 40 days from the request in which to allow access. However, where a patient's request was not for the whole record, but only for information recorded in the past 40 days, access had to be given
A shorter period for this information could be easily achieved. Information recorded over the past 40 days is likely to relate to a current patient who has been seen recently. It is likely to be reasonably brief, perhaps no more than a single letter or entry on a file. Locating it and permitting access should be achieved relatively easily within a 21-day period. Other requests may take longer, of course, in particular if the patient has not been seen for many years. The file will be in deep storage and the record itself may be large.
The 21-day arrangement has advantages for the record holder. If patients can secure quicker access by limiting their request to recently recorded information, they will have an incentive not to ask for the entire record if they do not really need it. This seems less work for the doctor or hospital.
Finally, of course, the patient may be suffering from an undiagnosed problem and be anxious to see recent reports or test results, or perhaps feel that they have not been kept as fully informed as they would like. It may be extremely important for them to have the quickest possible access to the recent data in order to minimise the uncertainty and anxiety. This amendment merely seeks to restore the 21-day period in precisely the terms that applied until March this year.
The amendment seeks to insert a new clause into Part VII of the Bill, which contains amendments to the Data Protection Act 1998. Section 7(1) of the DPA establishes the individual's right of access. Section 7(8) provides that access must be given before the end of the prescribed period. This period is defined in Section 7(10) of that Act, which states:
The Act defined "inaccurate" as "incorrect, misleading or incomplete". This wide definition went beyond factual errors and allowed patients to have a
Under the Data Protection Act 1998 the individual's right to have inaccurate material corrected applies only to factual inaccuracies and not to differences of opinion. Individuals have no right as such to have their own views about a disputed matter added to the record. An obscure provision gives the record holder a degree of protection against action under the 1998 Act. If they add a note about the individual's views to record where there is an alleged factual inaccuracy in information supplied by a third party, this does not apply to inaccuracies caused by the person responsible for the record, which is where it is most needed.
For medical records, this change represents a real loss. The right to have a note added to the record was particularly valuable for patients who believed they had been damaged by unjustified comments about their behaviour or circumstances, and who feared that these would prejudice all new staff who consulted the file in future. Comments of this kind remain on file indefinitely; it is almost impossible to have them removed. Allowing the patient's views to be added alongside at least ensured that the file would reflect both sides of the story. This was particularly helpful to patients who felt they were unfairly characterised as suffering from a psychiatric problem.
This provision was helpful to medical staff too. They might not have been prepared to delete comments which they felt were justified, merely because they were difficult for the patient to accept. A statutory "right of reply" provided a form of compromise which helped to take some of the heat out of a difficult situation. There is no evidence that this caused problems to medical staff. It is much more likely to have provided a useful way of helping to defuse a difficult situation.
The amendment inserts a new paragraph into Section 12A(1) of the Data Protection Act 1998. This would allow the individual, the data subject, to require the record holder, the data controller, to include in the record a statement setting out the individual's views about any matter which he or she considered to be inaccurate or misleading in relation to any fact or any opinion.
The provision applies in relation to "exempt manual data", which is the Data Protection Act's term for manually held health, social work, housing and school records. It applies to Section 12A, which, oddly, can be found in Schedule 13 to the Act.
The amended Section 12A(1) would then read:
"In this section..."the prescribed period" means forty days or such other period as may be prescribed".
The amendment seeks to add the words,
"and in the case of a request under section 7 which relates only to data recorded in a health record, in the forty days immediately preceding the date of the request "the prescribed period" means 21 days".
Amendment No. 336 restores the right of individuals to add a statement of their own views about a disputed entry on a manually held health, school, social work and housing record. This reinstates a right that has been removed by the Data Protection Act 1998. The Access to Health Records Act gives patients the right to ask the holder of their health records to correct any inaccurate information on it. If the record holder was not satisfied that the information was inaccurate, he was required to,
"make in the part of the record in which the information is contained a note of the matters in respect of which the information is considered by the applicant to be inaccurate".
A copy of any correction or note then had to be supplied to the patient.
"(1) A data subject is entitled at any time by notice in writing--(a) to require the data controller to rectify, block, erase or destroy exempt manual data which are inaccurate or incomplete, or (aa) in respect of exempt manual data which the data subject considers to be inaccurate or misleading in relation to any matter of fact or any opinion, to require the data controller to include with that data a statement setting out the data subject's views in relation to
25 Oct 2000 : Column 462
- that data, or (b) to require the data controller to cease holding exempt manual data in a way incompatible with the legitimate purposes pursued by the data controller".
For anyone who only wants to inspect his or her manually held health record, a fee of £10 can be charged, unless something has been added to the record in the previous 40 days. In that case there is no charge for inspecting the record. This reflects the position as it was under the Access to Health Record Act.
However, where copies of manually held health records are supplied, there is a maximum fee of £50. Previously there was a standard £10 application fee plus the cost of making any copies supplied. A maximum fee sounds like a positive development. Unfortunately, no minimum fee is specified. There is no sliding scale to reflect the number of copies supplied and no requirement that fees be reasonable. The maximum fee can therefore also be the minimum fee or the standard fee. There is nothing to stop the holder of a health record charging £50 for supplying just a single photocopy.
There are signs that some hospitals may be doing that. A brief telephone survey of National Health Service hospitals revealed that at least one National Health Service trust had set a flat fee of £50 for all requests for photocopies regardless of how few photocopies are involved. That is the Preston Acute Hospitals Trust. The Homerton Hospital NHS Trust in London has a minimum fee of £25 for supplying photocopies. If more than 100 copies are supplied, a £50 fee is charged. Others make a £10 administrative charge plus the charge for photocopying. That ranges from 10p per sheet to 40p per sheet, but subject to the £50 overall cap.
The DPA sets out a more generous charging scheme for school records. A statutory maximum of £1 can be charged for the first 20 sheets with further copies charged at £1 for each 10 sheets. An overall maximum of £50 applies regardless of how many copies are supplied. The amendment proposes that charges for photocopies of health records should broadly follow this approach. There would be a maximum photocopying charge of 10p per sheet. For material other than photocopies--for example, copies of X-rays--a reasonable fee could be charged. The overall total fee that could be charged could not exceed £50.
The amendment takes the form of an amendment to the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000. The normal method of amending regulations is by introducing new regulations, not by primary legislation. Therefore, there may be technical
objections to the amendment. However, I hope that the Government will understand the public's concern over these matters and will be helpful.
This is a highly sensitive matter. The terrible Shipman case and the tragedies of the children in Bristol bring this subject to the front line. With the likely disappearance of community health councils, people may feel that without an independent body working on their behalf patients will be even more vulnerable. One should ask this question. If patients do not have easy access to their records, whose life is it anyway? I beg to move.
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