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Baroness Hayman: This set of amendments and the debate upon it rightly highlights a very important issue regarding the confidentiality of information relating to individuals and the intention to protect that wherever possible. We intend and expect that information that is produced by the commission should, wherever possible, be in a form that protects the identity of the individual. The intention is that the circumstances in which information that identifies an individual is obtained without consent are kept to the absolute minimum necessary to ensure that the commission is able to fulfil

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its functions with access to essential information subject to necessary safeguards. It is a difficult balance to strike and it is important that we get it right.

I turn to the specific areas of concern that have been raised in the debate. As to Amendments Nos. 119 and 121 relating to the anonymising of data, the Government expect confidential information to be produced in the form in which the identity of the individual cannot be ascertained wherever possible. Where the relevant document or information is produced in such a form the existing provisions under Clauses 16(2)(a) and 17(3)(a) allow for the obtaining or disclosure of such information. Where information is obtained or disclosed under these provisions the intention is that the documents or information should be anonymised or produced in a statistical or summary format so as to protect the identity of the individual concerned. We do not intend that the information should be in a form that enables the commission to identify the individual using other information already in its possession. That is the concern to which Amendments Nos. 119 and 121 are addressed.

If access to such information, put together with other information held by the commission, could enable the commission to identify an individual clearly it would not be in a form in which the identity of the individual could not be ascertained. The disclosure would therefore not fall within those permitted by Clause 16(2)(a).

We believe that the existing provision largely achieves the result intended by this amendment and recognises the issue to which the noble Lord, Lord McColl, drew attention. The effect of the amendment would be to insert an explicit test on the face of the Bill. It will be the person or body who holds the relevant information who must anonymise or otherwise ensure that the information is in a form that protects the identity of the individual. The holders of the information may not be aware of exactly what information is in the hands of the commission. It would be even more difficult for them to assess with certainty what information the commission is likely to obtain in the future. We are concerned therefore that the amendment as phrased will impose too heavy a burden on the holders of confidential documents as it will require them to make a difficult judgment about what might be ascertained from their information when placed together with material outside their control.

The Bill includes scope to make regulations imposing any further safeguards that may be necessary. The safeguards on the face of the Bill are not necessarily the only safeguards. I should be happy to consider further the case for regulations on that point within the appropriate framework that I think the Bill sets.

Important points have been raised. I should like to take away for greater consideration the question of how we ensure that the identity of individuals is protected further. Clauses 16 and 17 set out limited circumstances where the commission will be able to obtain or disclose information which has not been put in the form in which the identity of an individual cannot be ascertained. In particular, we have had a debate about information

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relating to a deceased person which is covered in Amendments Nos. 118, 124 and 125, or untraceable people, in Amendment No. 120.

If the safeguards in Clauses 16 and 17 on disclosure of information on living individuals were extended to deceased people as proposed in the amendments, the commission would be able to obtain such confidential unanonymised information only in the limited cases where consent to release of the information was not required. Similarly, if Clause 16(2)(c) were removed, the commission could not obtain information about an untraceable individual other than in these circumstances.

It may be helpful if I refer in more detail to the protection of information about deceased people since the legal position here is complex. We believe that the amendment would seem to go beyond existing law in this area. The application of the common law of confidentiality to deceased individuals is not altogether clear. But what seems clear is that no one has a legal right to give consent on behalf of a deceased individual to the release of information about him although the individual's personal representatives may have certain other rights. For example, they are able to sue in respect of rights that have passed into the estate of the deceased individual--for example, rights in relation to land and other property.

In the absence of anyone legally able to consent, the statutory restriction proposed by the amendment would unnecessarily restrict the commission's ability to disclose information where it thought it necessary or appropriate to do so. Perhaps I can give some examples of the kind of circumstances in which that would be a worrying constraint. If the commission, when conducting an investigation, considered it a threat to the health and safety of patients, it would be able to obtain the information under provisions in Clause 16(2)(d). However, it might not always be immediately apparent without further investigation that the quality of services provided by a particular organisation constituted a threat to the health and safety of patients. In those cases, where confidential information might provide clear evidence to support various concerns about the quality of care provided by a service, the commission might wish to obtain that information. The health and safety of others could be at risk if that information was not obtained. The commission might also feel that it needed to disclose the information to an appropriate person such as the relevant regulatory body. The proposed amendments would stand in the way. While it would be wrong, I believe, to prohibit the commission accessing the information in those special circumstances, I recognise the sensitivities and importance of proceeding with due care, paying particular regard to the concerns of the relatives of the individual concerned. The noble Lord, Lord Walton of Detchant, made clear why we should take these issues seriously.

On safeguards regarding untraceable people, where it appears that an individual cannot be traced the commission would need to ensure that all reasonable efforts had been made to trace them. The commission would work closely with the organisation concerned in the attempt to ascertain the patient's whereabouts in order to obtain consent. As regards deceased people it

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is a difficult and sensitive area, as we have said, and it is appropriate for safeguards to be put in place. I should like to consider what further safeguards might be imposed by regulations under Clause 16(1) concerning the commission's access to the information or directions given under Clause 15(4). In addition, we expect that the commission will draw up appropriate guidelines for the obtaining of disclosure of confidential information about deceased patients, including any arrangements for obtaining the consent of relatives.

Perhaps I may reply to the specific question from the noble Lord, Lord Walton of Detchant, as to the persistence and duty of confidence even when an employee is no longer in the employment of the institution, the commission, involved. Yes, indeed, Clause 17(2) applies to any person who knowingly or recklessly contravenes that subsection. It would include past as well as present employees of the commission.

I turn now to Amendments Nos. 126, 127 and 128 which cover circumstances in which confidential information relating to an individual could be obtained or disclosed. First, I give the overall reassurance that such information would be released only when it was in the public interest so to do. In connection with a criminal offence--Amendment No. 126 deals with that--under Clause 17(5)(e) the commission will be able to disclose information,


    "in connection with the investigation of any criminal offence triable in the United Kingdom".
We would want the commission to be able to disclose such information if it could facilitate a criminal investigation and if it were considered that this would be in the best public interest.

The proposed amendment would allow such information to be disclosed only in connection with investigation of a serious triable offence. The difficulty is to categorise exactly what would be serious in this context. I suggest that perhaps it is wise not to be drawn into the attempt. Such cases would be extremely rare and we would not want to put restrictions on the face of the Bill. Judgment on whether the public interest in maintaining the confidentiality of personal information is outweighed by the public interest in detecting and prosecuting crime is, I suggest, best made in the individual case. However, I should be happy to consider what further guidance or secondary legislation we might frame to cover those rare eventualities which might give some comfort to noble Lords who have been supporting the amendments.

I move to the situation where an individual is considered to be a threat to health and safety under Amendments Nos. 127 and 128. Clause 17(5)(h) allows the disclosure of information about an individual without consent where that same individual is likely to constitute a threat to the health and safety of individuals. Again, the information would be disclosed only to those to whom it was in the best public interest that it should be disclosed. For example, if in the course of an investigation the commission discovered that an individual health professional was threatening the health and safety of individuals, it would want to pass that information on to the employing organisation, or, if

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appropriate, the relevant regulatory body, for it to take appropriate action to prevent any further threat to individuals.

The amendments state that disclosure should be made only where there is a serious risk to individuals. Again we face the problems of definition. But I cannot accept that where the commission has clear evidence of a threat to health, falling short of death or serious harm, it should overlook it. The commission will have experienced clinicians on its team who will be able to decide whether there is such a risk to health and safety that information about an individual should be disclosed. I can tell the Committee that similar provisions also apply to the health service commissioner who is not limited to disclosure in cases where there is a risk of death or serious harm.

It may help the Committee if I add that we are satisfied that these provisions are consistent with the European Convention on Human Rights which concerns the right to respect for private life. The article provides that a public authority may not interfere with the right unless such interference is in accordance with the law and necessary in a democratic society in the interests of, among other things, public safety or for the protection of health. We consider the provisions in the Bill fall within that exception. I should like to make it clear that it is not the intention that the commission will name and shame individuals, but it must be able to pass information to the appropriate people or bodies when that is in the best public interest.

In discussion we have been carefully through the clauses. In phrasing them we have sought to strike the right balance between safeguarding patient confidentiality and allowing the commission to act in the best interests of patients and the public.

Some points were raised in respect of which we would wish to consider further safeguards either through regulations or guidance. I hope that the Committee will consider that that will correct any imbalance it feels exists on the face of the Bill and I hope that the noble Lord will feel able to withdraw his amendment.


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