Joint Committee on the Draft Mental Incapacity Bill First Report


18 Chapter 18: Access to Information

ACCESS TO INFORMATION

342. Although it was not specifically raised with us in evidence, we noted that the draft Bill does not deal with Access to Information about those lacking capacity to make decisions. This seemed to us to be an important and potentially difficult issue which appeared to have implications for the way in which parts of the draft Bill might work out in practice.

343. We presumed that those who lack capacity would be entitled to the same rights of confidentiality about their personal affairs as those who have capacity. But we wondered whether laws like the Data Protection Act or the conventions in professional guidance which enshrine that right might cause problems for those who are trying to help persons lacking capacity to take decisions in their best interests.

344. We assumed that donees appointed to manage financial affairs under Lasting Powers of Attorney would have full rights of access to financial information about those for whom they have responsibility, as would Deputies appointed by the Court of Protection. But it was not clear whether donees and Deputies would have those same rights under the draft Bill to information related to medical and welfare decisions.

345. We also foresaw problems for the wider range of persons whom the draft Bill envisages acting under the general authority on behalf of those lacking capacity. We noted that the draft Bill placed responsibility on them to consult with relevant bodies or persons in determining the incapacitated persons best interests. But, without such rights of access to information, those bodies or persons could feel bound to refuse them access which they needed to information regarded as confidential.

346. This seemed to us to be likely to inhibit the simplified decision-making and enhanced consultation which the Bill was trying to encourage. It might well result in decisions being delayed while applications were made to the Court of Protection, which would in turn add to the Court's workload.

347. We thought it might create a particular problem for advocacy services, because they have no defined status under the draft Bill. We also wondered how it might affect the investigative powers of the Office of the Public Guardian or the effectiveness of the new Adult Protection Committees to be set up jointly by the Department of Health and the Home Office under the Government's "no secrets" policy.

348. The Chairman therefore wrote to Lord Filkin, the Under-Secretary of State for Constitutional Affairs at the Department for Constitutional Affairs, with a copy to Mrs Rosie Winterton, the Minister of State at the Department of Health, seeking clarification.[359]

349. Lord Filkin replied acknowledging that access to information, confidentiality and data protection were both important and difficult issues for those lacking capacity. He stated that these issues did not feature explicitly in the current draft Bill because they would "largely be dealt with by consequential amendments and by guidance" [360] He added that consequential amendments would be included in the Bill when it was introduced.[361]

350. He went on to say that, according to guidance issued by the Information Commissioner, a request for access could be made, under the provisions of the Data Protection Act 1998, on behalf of someone lacking capacity where there was an Enduring Power of Attorney or authority from the Court of Protection. He indicated that this guidance might relate to access to clinical records by someone authorised under an Enduring Power of Attorney. But he added that "it would be wrong to assume that this will always encompass decisions about treatment and care".[362] He referred to orders made under the Data Protection Act which enable Court-representatives to request access to information on behalf of someone who is incapable "providing that certain information is not disclosed to the representatives" [363]

351. Lord Filkin acknowledged that the draft Bill proposed new wider functions under Lasting Powers of Attorney and for court-appointed Deputies. The Department intended to consult the Information Commissioner with a view to amending his guidance. The intention would be to allow requests for access to be made by persons having those powers. He added "consideration is being given to the extent to which financial LPAs should be able to access health and welfare information and vice versa".[364] He also promised to "revisit the 2000 Orders and consider whether these will require amendment in the light of the Bill.[365]

352. Lord Filkin also stated that the Department proposed to include powers in the Bill related to the health records of deceased persons. These would be similar to those of the Adults with Incapacity (Scotland) Act 2000 which enable those acting on behalf of persons without capacity who had an interest in the estate of a deceased person to have access to health records.[366]

353. Access to information by those acting under general authority was described by Lord Filkin as "more difficult because there is not one clear person with authority to act". He suggested that the situation would be the same as that which currently applies to the Common Law:

    "At present information is shared on a 'need to know' basis and guidance for NHS staff, 'Confidentiality: NHS Codes of Practice', has now been published following a public consultation. The Code has been endorsed by the British Medical Association, General Medical Council and the Information Commissioner and can be found at www.doh.gov.uk/confiden. Health and social care organisations operating under best practice have drawn up information sharing protocols. For example, the 'No Secrets' document requires Adult Protection Committees to draw up common agreements relating to confidentiality.

    "Where information is held under the common law duty of confidentiality, it must only be disclosed for the purposes that it was collected for unless there is explicit consent from the subject, a statutory basis for disclosure or a robust public interest justification for the disclosure. Regarding this latter justification, it is accepted that where there are concerns about abuse and vulnerable people are at risk, then absolute guarantees of confidentiality cannot be given".[367]

354. Finally, Lord Filkin said:

    "Our developing work on the Bill is leading us to examine further whether these current arrangements shown would be adequate under the Bill, perhaps supplemented by clear guidance or whether they will just have a fresh look at these policies. We will continue to investigate this".[368]

355. This appears to us to be yet another area where the Department has introduced the draft Bill before taking full account of the potential implications. In this case, the issue is not mentioned on the face of the draft Bill at all. As with the preparation of draft Codes of Practice and adequate assessment of resource implications, it is quite clear that a great deal remains to be done which we would want to see done properly. But we are equally keen not to see the Bill unduly delayed.

356. We regret that the Department do not appear to have adequately addressed the important, though admittedly complex, issues involving access to information to those acting on behalf of people lacking capacity. We welcome the Department's assurance that work is in hand to resolve these issues and that consequential amendments will be included in the Bill when it is introduced. We hope that the implications can be thoroughly investigated and adequately tackled in the consequential amendments and in the Codes of Practice. But we also hope that this will not unduly delay presentation of the Bill.


359   Ev 284, MIB 1221 Back

360   Ev 496 MIB 1225 Back

361   Ev 496 MIB 1225 Back

362   Ibid Back

363   Ibid Back

364   Ibid Back

365   Ibid Back

366   Ibid Back

367   Ibid Back

368   Ibid Back


 
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Prepared 28 November 2003