I thank the noble Baroness, Lady Brinton, for raising the issue of medical confidentiality. She said the amendments provide that in exercising the serious violence duty, an authority or individual could not share or be required to share any information that would breach doctor-patient confidentiality as set out in the General Medical Council ethical guidance on confidentiality. One of the amendments would also remove clinical commissioning groups and local health boards from the list of authorities that are subject to the serious violence duty under Part 2 on the prevention, investigation and prosecution of crime.
As has been said, Clause 9 gives the Secretary of State the power to authorise by regulations the disclosure of information by or to a prescribed person, a specified authority or local policing body, an education authority, a prison authority and a youth custody authority. While the Bill states in Clause 9 that such regulations
“must provide that they do not authorise a disclosure of information that … would contravene the data protection legislation”,
that does not relate to a breach of any obligation of confidence owed by the person making the disclosure in respect of which the requirement is only that the regulations “may” provide that such a disclosure does not result in a breach.
Clause 15 on the disclosure of information provides for the disclosure of information but states:
“A disclosure of information authorised by this section does not breach … any obligation of confidence owed by the person making the disclosure”.
Yet, as has been said on more than one occasion today, it is the common-law duty of confidentiality that helps to uphold the trust of patients in health services, which can be extremely hard to gain and extremely easy to lose.
Clause 16, on the supply of information to local policing bodies, states:
“A local policing body may … request any person listed … to supply it with such information as may be specified in the request”,
but
“a person who is requested to supply information … must comply with the request”
and:
“A disclosure of information … does not breach … any obligation of confidence owed by the person making the disclosure”.
That sounds more like a demand than a request. The only caveat is that compliance with the request for information does not require a disclosure of information that would contravene the data protection legislation, although even then
“in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account”.
The subsection in question is the one that the person so requested to supply information must comply with the request.
Could the Minister give a couple of examples of what that means in practical terms? What do the words
“in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account”
actually mean in hard, practical terms?
Maybe I am wrong, but Clause 16 appears to legally require clinical commissioning groups and local health boards to provide confidential health information to the police, and Clauses 9 and 15 would grant CCGs and LHPs permission to share confidential health information with a wider list of recipients such as councils and educational authorities, as well as the police. Perhaps the Minister will put our minds at rest on this, but on the face of it this appears to introduce a mandatory blanket obligation for clinical commissioning groups and local health boards to share confidential health information with the police, replacing, as has been said, the existing system, which allows healthcare professionals to disclose confidential information on public interest grounds on a case-by-case basis if it is necessary for the prevention, detection or prosecution of serious crime or where there is an imminent risk of serious harm to an individual.
I hope the Minister, speaking on behalf of the Government, can address in her response the concerns that have been raised, and say what safeguards would prevent confidential medical information being inappropriately made available under the Bill, beyond the existing criteria, guidance and procedures for such disclosure in relation to public interest grounds. If the Government are saying—I am not entirely clear whether they are or not—that the present arrangements are not properly working or are no longer appropriate in today’s world, perhaps there is a need for further discussions by the Government on this aspect of the Bill to make sure that we get any change in the law right and maintain what has been referred to in today’s debate as “the right balance”.
We need to know far more about the real reasons for the change the Government are proposing, what its implications are and how it will be interpreted and applied under the terms of the Bill. I, too, hope the Minister will agree to further discussions on this issue in view of the concerns that have been raised and which are certainly worthy of a full and detailed response with examples.