Health and Social Care Bill

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Dr. Fox: It would not be acceptable for us simply to hear about the guidelines that Ministers will follow when they use the powers. It is unacceptable to have the powers in the Bill, because it gives the Secretary of State the freedom to use them on a whim at any time.

Mr. Burstow: The hon. Gentleman is right, and I suspect that none of us will be satisfied by what the Minister says. I hope that we will be, but I cannot see how, as there are no Government amendments to address our concerns. We must therefore hope to have some of our amendments accepted, or at least for the Government to table amendments at a later stage to rewrite the clause substantially. As it is currently drafted, the clause is far too wide. I want to solicit information from the Minister about the process of amending the Bill.

There has been no consultation or dialogue since a relevant court case. From my discussions with a variety of the organisations, and from reading the representations that have been made, it is clear that the clause was conceived within the Department and published just before Christmas and has not been the subject of any serious dialogue on how the power will be drawn up. That is surprising considering the nature of organisations that ought to have been consulted.

10 am

The Government say that they want to involve all stakeholders in the delivery of the NHS plan. They consulted extensively on many aspects of the NHS plan, but there was no consultation on clause 59. I refer specifically to the court case, which seems to be the starting point for our consideration of the clause. The interesting thing about the court case—apart from what their Lordships said in the judgment—is who was joined in the action and what they said. It is worth bearing in mind that it was not just a court judgment on the commercial activities of a commercial organisation gathering anonymous information. The General Medical Council and the Medical Research Council also decided that they needed to be involved in that case—[Interruption.] There are alarms going off in the building, and alarms should also be sounded in the Committee—[Interruption.]

On a point of order, Mr. Maxton, I seek your guidance as to whether we need to do anything as a result of the alarms.

The Chairman: I believe that the procedure is that we wait for voice instructions.

Mr. Burstow: I also look forward to the Minister's voice instructions in due course. Perhaps the clause is all about instruction and direction.

In a press release that was issued by the Department to give reassurance on the issue the Minister said:

    ``The Data Protection Commissioner, who champions privacy rights, accepts that our safeguards will protect the interests of the public.''

Can the Minister tell us about that consultation exercise? What did the Data Protection Commissioner have to say about the clause? Will the Minister publish the consultation exercise and the resulting correspondence?

Dr. Brand: I should be grateful if my hon. Friend will elucidate whether the Data Protection Registrar restricts her control to electronically held data or whether she can also give assurances over information held in the more traditional pen and paper form?

Mr. Burstow: That is an important point. Perhaps the Minister will say more about it in his response.

In the court case, it was clear that the concern driving the Government involed the control of the drugs budget and the cost of prescribing. The hon. Member for Woodspring has already quoted parts of the judgment, which effectively tells the Department that if it continues to view such schemes as operating against the public interest, the Government must take further powers in an already heavily regulated area to control or limit their effect.

    The law of confidence cannot be distorted for this purpose.

In other words, the court told the Department that the area was already well regulated and that it should consider the matter further. If the Government believe the regulation is inadequate, they should have undertaken consultation and dialogue about how the regulations should be changed prior to the publication of the clause.

I want to pick up on the point about commercial information and whether it is a basis for deciding whether information should be controlled. Can the Minister talk the Committee through the reasoning that led the Department in the first instance to pursue the court action and then to decide—after two years' reflection—that the Bill was the right vehicle for introducing further controls. Our amendments attempt to provide further clarity, but we accept that adding them to the clause will not go to the heart of the issue. The point that comes across in the representations from various bodies is that the court took the view—on representations from the Medical Research Council, the General Medical Council and the company that was party to the action—that if information was anomymised at source, it could in no way cause harm to an individual through its release. Will the Government explain, therefore, why they are of the opinion that harm might be done, necessitating such draconian and sweeping powers to enable them to regulate and prescribe? Indeed, not only does the clause provide that general power; it even allows the Secretary of State to rewrite the definitions of what is to be covered.

I hope that the Minister's reply to the debate will be more than reassuring words and while the hon. Gentleman's amendment about consultation is welcome, the clause as drafted contains a requirement for consultation. It is not so much a matter of consulting on the details of implementing the regulation-making powers in the provision; it is the principle of whether the Secretary of State should take such powers in the first place.

I conclude by referring to the comment of my hon. Friend the Member for Isle of Wight. The current Ministers may not be there in perpetuity and we should surely be drafting legislation that makes its purpose clear from the outset rather than leaving it open to future Ministers to reinterpret it without coming back to this place with a more detailed piece of primary legislation to achieve their ends.

The Minister of State, Department of Health (Mr. John Denham): We have had a useful opening debate. With your permission, Mr. Maxton, I should like to set out the Government's position on several issues in the clause because a number of the amendments range across various aspects of the clause. I welcome the hon. Member for Woodspring to one of his passing appearances in the Committee. He has shown an all too infrequent interest in the proceedings, but we are pleased to see him here this morning.

It is interesting also that both Conservative and Liberal Democrat Members have advanced the argument that while people have nothing to fear from a Labour Government, we should be worried about what Ministers of other persuasions might do with the legislation. I assume that they are thinking of what they would be obliged to do if they were given the powers. It is a purely hypothetical circumstance, but we are all in favour of the precautionary principle, however remote the risk might be.

It is right that there should be a detailed debate about the provisions in the clause. We are inevitably dealing with fundamental issues of privacy and patient confidentiality and it is important to go through all the matters involved. I believe that much of the speculation and concern that has been expressed this morning and over the last couple of weeks is misplaced. I hope that the amendments that we tabled ahead of the debate today have assuaged some of those concerns and that my remarks will provide further reassurance.

The clause has two main parts and three main purposes. Subsections (1) and (2) provide powers to regulate the disclosure and processing of patient information or information derived from such information. Our amendments limit those powers to commercial purposes. The Government believe that this is a new and much needed protection against the use of patient information for purposes that run contrary to the interests of the patient and the NHS. I will say a little more about that in a moment.

Subsections (3) to (9) provide for the Secretary of State to make regulations to require the flow of patient information in prescribed circumstances. That will enable us to achieve two aims. First, patients will receive more information about their own clinical care, in accordance with the commitment in the NHS plan. Secondly, it will be possible to safeguard the continued operation of essential services that currently rely on patient-identifiable information.

The clause does not outlaw independent reports on NHS services and it is not an attempt to restrict medical research. A fundamental point is that it does not signal any change to the Government's view about the importance of patient consent. That is a key point in today's debate. Informed consent is crucial to the Government's view of how a modern NHS should work. We cannot move to a patient-centred service if patients are not informed, consenting participants in the services they receive.

As we all know, the NHS does not always operate in the way that I have described. Much of what is done in the NHS relies on implied consent. That is sometimes appropriate, for example when information is shared within a hospital to ensure that a patient receives appropriate care, but at other times the definition of implied consent is pushed too far. We are determined to deal with that, but it is no small task. Not only the relevant legislation, but the culture of the NHS will have to change radically as we move away from past habits into practice based on real consent.

The professions have recognised the need to change the current approach to consent. The General Medical Council issued guidance last year making clear its view that informed consent is the only secure legal and ethical basis for disclosing patients' confidential information. They too recognise how great a change in culture and systems will be necessary to bring this about, and they will not attempt to enforce their guidance until October.The Data Protection Commissioner has also drawn attention to the need to improve the way in which the NHS seeks consent for the use of patient information and we have made a commitment to her that we will do so. We are tackling the relevant areas of concern and a comprehensive implementation strategy dealing with all aspects of consent for the use of patient information in the NHS will be ready by October.

My right hon. Friend the Secretary of State has made it clear that the provision has implications for more than the use of information. His remarks have been mentioned in Committee this morning. The NHS can no longer assume that the benefits of science, medicine or research are somehow self-evident regardless of the wishes of patients. The relationship between patients and the service today has to be based on informed consent. That will require changes in practice and policy.

 
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