Clause 43
Notice requiring production of documents
Question proposed, That the clause stand part of the Bill.
Jane Kennedy: The clause deals with the notice requiring the production of documents and, generally speaking, with disclosure. The crux of our concerns is that this and the next couple of clauses might cause a problem as regards confidentiality and the handling of sensitive data. I am particularly worried by the obligation that the clause places on NHS contractors to disclose. That obligation is important because, under this Government, health services are being used in a more catholic way and without regard necessarily being given to the boundaries between the NHS and the private sector. I welcome that because it is a good thing, but it self-evidently causes difficulties in contractual arrangements.
One difficulty is that we are introducing legislation that might require retrospection. There is currently a large number of contracts with various partners in the private sector, which lay out terms and conditions fairly clearly, and, I imagine, deal with issues such as disclosure. I also imagine that most independent sector providers regard their records as their business and would want to protect their patients' confidentiality as closely as they can—I certainly hope that that would be the case. However, the Bill places obligations on such providers, and my question to the Minister is whether those will be deemed to be retrospective. In other words, will the Bill alter the contractual arrangement that the NHS has with those who provide services in the independent sector or is it simply prospective?
If the Bill is retrospective, that clearly introduces a range of interesting conundrums. Prospectively, it might well alter the way in which independent sector providers view the NHS. Many such providers deal with highly sensitive material on individuals and would clearly want to be absolutely sure that any information that they divulged was suitably anonymised. I would be grateful if the Minister commented on the measures that she will take to ensure that providers are given the confidence that they require to take forward contract negotiations with the NHS. However, I am particularly concerned about any possible element of retrospection.
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Jane Kennedy: On retrospection, the counter fraud service already has powers to recover losses—even going back over time—where it uncovers fraud and can demonstrate that it has taken place. Where there is evidence that the contractor has abused contracts that have been agreed, the counter fraud service already has powers to recover funds from the organisation that has been defrauding the NHS. Those powers will apply to records—including those created before the legislation—that might be relevant to counter-fraud work. There would need to be clear evidence of fraud, and the vast majority of people engaging in contracts with the NHS have nothing to be concerned about in these powers. However, as I have said, there are already powers to take action. They have been used on many occasions and hundreds of thousands, if not millions, of pounds have been recovered for the NHS through being able to demonstrate that fraud had been taking place.
The new powers will apply to all those who are directly employed and, equally, to all of those contracted to provide medical services to the NHS. By that, I do not just mean the independent sector. All of those who are contracted but whom we do not normally think of as working in the private sector—GPs, for example, opticians, dentists and others—would be counted as such contractors.
I hope that I have given the hon. Gentleman the reassurance that he sought in raising those concerns.
Question put and agreed to.
Clause 43 ordered to stand part of the Bill.
Clauses 44 to 46 ordered to stand part of the Bill..
Clause 47
Disclosure of information
Question proposed, That the clause stand part of the Bill.
Dr. Murrison: The clause is not particularly controversial. However, I am drawn to subsection 3(d), which refers to ''relevant disciplinary proceedings'' in relation to disclosure of information. I am not sure what that means. Does it mean what one would understand as professional disciplinary proceedings, or does it mean internal disciplinary proceedings related, for example, to some managerial function? Also, at what level are we talking? Is it relatively trivial disciplinary proceedings, or matters that are more serious?
Disciplinary issues may range from relatively low-key stuff, such as stealing a paper clip, to far more heinous crimes of the sort that the Minister described in trying to tell us how much fraud goes on in the NHS. That is obviously big-ticket stuff, so we need to know what is really meant by ''relevant disciplinary proceedings''. In particular, some clarification of the word ''relevant'' would be useful.
Jane Kennedy: The hon. Gentleman needs to remember the context within which we expect these powers to be used, because use of the powers will be supervised by senior staff. He may wish to know that
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the Counter Fraud and Security Management Service already considers the full range of available sanctions as an investigation into a suspicion of fraud, a security incident or a breach commences and as it proceeds. Its objective in approaching the investigation would be to consider the full range of sanctions available to it in the event that the fraud is proven. Disciplinary proceedings clearly fit into that. The bodies referred to could include professional disciplinary proceedings, the General Medical Council, the General Dental Council and others.
Therefore, the hon. Gentleman is right to think that the full range would be considered. However, it is hard to imagine the counter fraud service using such powers in the event of a relatively small case such as the theft of a paper clip. I realise that he used that to illustrate the range, but I seek to reassure him that the expertise and professional approach that the service adopts in bringing cases will inform the nature, scope and range of the documents that it seeks to access and the amount of information available. The information required to be disclosed will only be that which is absolutely relevant and necessary for the case of fraud to be proven.
Question put and agreed to
Clause 47 ordered to stand part of the Bill.
Clause 48
Special protection for personal records
Question proposed, That the clause stand part of the Bill.
Dr. Murrison: The title of the clause is ''Special protection for personal records''. My understanding is that patient identifiable records would be disclosed only on receipt of a court order. I seek the Minister's assurance that that is correct. I think that she gave such an assurance in her initial remarks. The purpose in my discussing the clause briefly is to seek her confirmation that she shares that understanding of the matter.
6.15 pm
Jane Kennedy: It is useful to have the opportunity to clarify things. This is so important that it bears repetition—just the once, hon. Members will be pleased to learn. There may be circumstances in which information from personal records obtained under these powers will enable a person to be identified either from that piece of information or if it is combined with other information. In such cases, I acknowledge that special care has to be taken.
Where the information is disclosed for the purposes of any court or disciplinary proceedings, the person disclosing it must take steps to ensure that unless there is a court order the information is not disclosed to any member of the public. However, a party to legal proceedings may apply to the court for the information to be used as evidence in a case. Such a party would have to apply to the court and it would be a decision for the court. The court may agree to this, but to safeguard the identity of the individual, because there is the risk of identification, it may require all or some of the proceedings of that court case to be held in
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private. I hope that that gives the hon. Gentleman a bit more clarity on the point.
Mr. Lansley: To be sure about things, may I inquire about two points. The first relates to the inclusion of the words a ''member of the public''. Surely the point is not so much that information should not be disclosed to any member of the public but, from an individual's point of view, that it should not be disclosed to any person for whom it is not essential to the court proceedings. I am unsure what a ''member of the public'' means in this context. Does it mean anyone who is not related to the court proceedings in any way, including NHS staff for example?
I may have missed the answer to my second point, but this seems to be the appropriate point at which to ask the question. Where information from somebody's personal records is produced in connection with such a case, where are the obligations on the counter-fraud service to ensure that it is aware of that? Will it be unaware of that or will there be some provision to ensure that it is aware that the information is being used, and aware of to whom it is being disclosed and for what purposes?
Jane Kennedy: The hon. Gentleman asks me to define more clearly what we mean by ''the public''. I want to reflect on the points that have been made because I want things to be right. We mean those not engaged in the case. The information will be anonymised, as I was describing earlier. I am unsure whether he was present then. The information will be anonymised and only that which is absolutely relevant and necessary for the case to be demonstrated will be disclosed.
We are creating a criminal offence of misuse of the information, so that when the officers of the counter-fraud service have the information, there will be a heavy duty on them to ensure that it is dealt with properly and only disclosed appropriately. We are concerned with giving special protection for those who might be identified even if the information is anonymised. We are saying to those involved in prosecuting and hearing cases that they have a duty on disclosure, even if we are talking about anonymous information put together with other information. We think of somebody not directly involved with the case—a court reporter or a journalist in particular—but the provision refers to any member of the public. It is right that we should give the utmost, stringent protection possible in relation to the information. If it is possible that someone will be identified, that is the responsibility of those managing and hearing the case. The court will be invited to consider the circumstances in which the evidence should be presented, with the concerns that the hon. Gentleman has just raised specifically in mind. I hope that that answer gives him the reassurance he seeks. I will reflect on the points raised in order to reassure myself that we have got this absolutely right. I think that we have, but I will consider those points to be absolutely sure.
Question put and agreed to.
Clause 48 ordered to stand part of the Bill.
Clause 49 ordered to stand part of the Bill.
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