Health and Social Care Bill

My Lords, I start by adding my support for the amendments that change the duty to reduce inequalities by strengthening the wording from having ““regard to the need”” to reduce such inequalities to ““acting with a view”” to reducing such inequalities. Those are Amendments 112 and 113, in relation to the board, and Amendments 186 and 187 in relation to clinical commissioning groups. I do not want to add a great deal to what the noble Baroness, Lady Finlay, said in that regard, except merely to observe that the commitment to reducing health inequalities in the Bill is one of its great advantages and will be one of the great advantages and achievements of the legislation, if it is passed. I suggest that saying it loud and clear and imposing the stronger duty on the board and the Secretary of State would be the better way to achieve it. I want to address the other amendments to which I have put my name, Amendments 153ZZA and 153ZZB, which concern the permitted disclosures of information by the board in proposed new Section 13Z2 on page 24 of the Bill. It is important to observe that the starting point for this clause is proposed new subsection (2): "““This provision has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure””." This proposed new subsection is about permitting disclosures by the board of information whose disclosure would otherwise be unlawful, which from the wording I take to include any disclosures that would be actionable either in tort or in contract. My concern is about how far this provision would sanction a breach of confidentiality owed to patients or others. Most of the examples or circumstances outlined in proposed new subsection (1) are anodyne or obviously called for. The first, for instance, is that the information is already in the public domain; the second is where the disclosure has to be made pursuant to regulations, and so forth. However, the amendments are concerned with two sets of circumstances that are, I would suggest, entirely too wide. The first is under paragraph (d), where the suggestion is that disclosure should be permitted where, "““the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual””." As drafted, paragraph (d) is without regard to the wishes of the individual concerned or, in the case of an individual suffering from incapacity, to that individual’s care. I would suggest that that smacks of a certain arrogance that ignores the rights of the individual to choose whether information about him or her is released by the board. It is for that reason that our amendment suggests that the words, "““and is made with the agreement of that individual or of a person having legal responsibility for that individual’s care””," should be placed as a qualification to the unfettered right to disclose based on the board’s view of what is, "““necessary or expedient for the purposes of protecting the welfare of””" that individual. The second area where we say that the disclosure provision is far too wide is under paragraph (f), which suggests that disclosure should be permitted where, "““the disclosure is made for the purpose of facilitating the exercise of any of the Board’s functions””." That permissive subsection would give the board an overall right to disclose any information it chose, notwithstanding that it was otherwise unlawful, on the basis that it was, "““made for the purpose of facilitating the exercise of any of the Board’s functions””." It does not even go so far as to say that it would have to be necessary for the exercise of those functions. In the view of those of us who have put our names to this amendment, those lines should go. They are an unwarranted intrusion into the confidentiality of the individual, and they give far too wide a discretion to disclose information whose disclosure would otherwise be unlawful.