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Lord McColl of Dulwich moved Amendment No. 35:

Page 13, line 22, after ("individual") insert ("or a deceased person").

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 36 to 38 and 41 to 45. Noble Lords will remember that when this was discussed on previous occasions a plea was made that when it comes to confidentiality we really should have the same high standards on the face of the Bill as have been adopted by the General Medical Council. Why should the Bill have inferior standards of confidentiality?

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Noble Lords may think that the medical profession is being over-fussy about the whole subject of confidentiality, but to us and to the patients it is of great importance. I am sure that noble Lords are aware that doctors are obliged to adhere strictly to confidentiality and can break that obligation only under exceptional circumstances, for instance, where a failure to disclose information may expose a patient or others to the risk of death or serious harm.

When the amendments were discussed before, the Minister agreed that they highlighted the important issue of confidentiality of information relating to individuals, and went on to say:

    "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".--[Official Report, 1/3/99; col. 1434.]

We are concerned with absolutes, not "whenever possibles". The Minister went on to say,

    "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 its functions".
In other words, she seemed to be saying that the means justifies the end. I am not sure that that is acceptable.

Amendments Nos. 35, 41 and 42 try to make sure that the same rights of confidentiality over medical records apply to deceased persons and patients no longer in contact with their doctor. In Amendment No. 37, we again emphasise that if an individual cannot be traced, confidentiality should, nevertheless, be protected. The Minister's answer to that was that the Government expect there to be "confidentiality wherever possible". However, I would suggest that confidentiality wherever possible and confidentiality unless it interferes with the work of the commission, are not tight enough provisions. In col. 1435, she expressed the concern that the provisions of Amendments Nos. 36 and 38 will impose too heavy a burden on the holders of confidential documents as they will require them to make a difficult judgment about what might be ascertained from their information when placed together with material outside their control. As far as concerns confidentiality, I believe that there should be a heavy burden on those who hold confidential documents. The Minister went on to say in col. 1437 that she would be happy to consider what further guidance or secondary legislation might be framed to cover what she described as "rare eventualities". It will be interesting to know whether she has had further thoughts about that.

Later on the Minister went on to say that she thought it would be wrong to prohibit the commission assessing information about deceased patients. We have no wish to do that. Our wish is to maintain confidentiality. I beg to move.

Lord Clement-Jones: My Lords, I rise to speak briefly to Amendment No. 43 in this group of amendments. The noble Lord, Lord Walton of Detchant, in the debate in Committee cogently noted that it was important that such duties should be aligned with the general duties of confidentiality of the medical profession as generally understood. In the context of this

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amendment, which inserts the word "serious" before "criminal offence" in line 13 on page 15, I note that the General Medical Council's recently issued guidance, Confidentiality: Providing and Protecting Information, says that disclosure of information may be justified,

    "where a serious crime which would be likely to involve the risk of serious harm or death could be prevented or detected. Serious crimes will usually be crimes against the person, including abuse of children".

That is clear. Of course, it is not a precise legal definition, but it is clearly what the medical profession is bound by and understands to be the duty of confidentiality. One does not have to look far for a legal definition. The Police Act 1997 contains provisions on entry, and interference with property and wireless telegraphy in the course of the prevention or detection of crime. Section 63 of the Police Act 1997 defines serious crime as conduct which constitutes one or more offences if, and only if: it involves the use of violence or if one of the offences is an offence to which a person who has attained the age of 21 and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more. That is a fairly clear definition. There was general agreement by both government and opposition when that provision was passed that that was a perfectly proper definition of "serious crime".

One could perhaps use the definition of "serious arrestable offence", if that was thought preferable, as defined in Section 116 of the Police and Criminal Evidence Act 1984. Your Lordships may be relieved to hear that I shall not cite the full definition! However, that shows that the definitions are available. It is important that the Bill is aligned to the duty of confidentiality, as generally understood currently by the medical profession.

Baroness Hayman: My Lords, the hour is late, but these are important issues and I hope that the House will forgive me if I deal with them in some detail. I admire the brevity and lucidity of both noble Lords. I fear that I shall not be able to emulate it, but I shall do my best.

In Committee, a number of issues were raised, many of which have been repeated this evening. With the Committee's agreement, I agreed to take away those concerns and look again to see whether we could further strengthen the safeguards on confidential information, whether through the Bill or through secondary legislation or guidance. We have given this area considerable further thought. We have also had the advantage of further useful discussions with representatives of the medical profession, and have been able to explore their concerns in some depth. I hope that I may be able to help clarify the issues and to offer some important safeguards.

The overall context is that, in carrying out the majority of its functions, we expect the commission to work with anonymised data. Cases where the commission needs to look at confidential information that identifies individuals will be rare. They will usually occur only when it is conducting an investigation when there is a particular cause for concern. Our aim has been both to set proper constraints around the commission's

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access to confidential information, and to ensure that when it does have such access the information is treated with due care and confidence. That is why Clause 16 sets out the circumstances under which the commission can obtain information and Clause 17 sets tight conditions on disclosure of information.

It may be helpful if I explain now the purpose of government Amendment No. 39. It aims to ensure that the definition of confidential information in Clause 16(6) is sufficiently broad to cover all information held subject to a duty of confidence. In reviewing these provisions in the light of the Committee stage debate, we concluded that there was a potential ambiguity in the original draft: it could be argued that in defining confidential information according to the terms in which it is held, the original definition did not cover information that should be held in confidence by virtue of the circumstances in which it is obtained. The amendment ensures that both sets of circumstances are now covered. It strengthens the protection offered by the provision and I hope that it will command the support of the House.

Before I turn to the other amendments it may help if I refer to a number of other safeguards on the commission's handling of confidential information, some of which go beyond what is on the face of the Bill. For example, only clinical members of the commission's review teams will be expected to access confidential patient information. They will be subject to the codes of confidentiality of their regulatory bodies and be under a duty of confidentiality. They would owe this duty to the individual concerned, and to the commission.

In addition, we expect that the contracts of employment of the commission's staff, both professional and lay, will contain provisions dealing with the issue of confidentiality. If it were necessary to enforce this, the Secretary of State would be able, under paragraph 7(6) of Schedule 2 of the Bill, to direct that contracts of employment contain such provisions. Knowing or reckless disclosure of confidential information without lawful consent is subject to a criminal offence under Clause 17. When we turn to the discussion of specific points of concern covered by the amendments, it is in the context that the commission will access confidential information only by exception and under carefully controlled circumstances.

Perhaps I may turn specifically to the first of the areas that I have highlighted. I refer to confidential information relating to deceased individuals or those who cannot be traced. I fully recognise that inappropriately obtaining or disclosing such information could, for example, cause grave and unnecessary distress to relatives. None the less, there are exceptional circumstances in which the commission would need to have access to information about such patients. We need to ensure that the scope of these clauses allows appropriate, but only appropriate, access.

There may be cases where the commission has concerns about a service where it suspects that there might be a risk to the health and safety of patients, but it would need to be able to access more records before

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it could prove the risk. It would of course be able to ask for the consent of living people, but there would be difficulties in a case where a number of patient deaths had occurred which the commission wished to investigate. I am sure that the House will appreciate that it would be particularly unfortunate if we were to put obstacles in the way of what might be a most pressing case for investigation.

I do not pretend that there is a straightforward way through this process. As I explained in Committee, there are problems in placing the same protection for the living and the dead on the face of the Bill, as proposed in the first set of amendments. One particular problem is that, generally speaking, no one has a legal authority to give consent on behalf of a deceased individual for the access or disclosure of confidential information about him or her. That means that if the safeguards in Clauses 16 and 17 were extended to cover deceased people, as proposed in the amendment, the commission would have more limited ability to obtain or disclose information relating to deceased individuals than was the case with living individuals.

The lack of legal clarity here also gives rise to other issues. While I recognise the ethical obligation healthcare professionals have to respect the confidentiality of individuals after their death, it is unclear in legal terms how far the duty of confidentiality extends beyond a person's death, if at all. It is therefore unclear whether information on a specific deceased individual is held subject to a duty of confidence. The constraints in Clause 16(2) only concern information which is held subject to such a duty. We are continuing to give this particular matter close consideration.

It is a difficult issue to balance. The Government share the concern expressed to ensure that the confidentiality of information relating to deceased individuals is properly respected. However, we would not wish unduly to restrict the operations of the commission in its work. I believe that there is general agreement that the commission should work within a clear and enforceable set of parameters when handling confidential information relating to deceased patients.

The real issue here is whether the best place for those parameters is the face of the legislation. I hope that I have explained why I consider the amendment moved by noble Lords to be too restrictive; indeed, it could jeopardise the effectiveness of the commission in what might be some of the most serious investigations with which it is faced. Nor is there an alternative appropriate approach as far as concerns the Bill. Nevertheless, we do take the issue very seriously. I have already explained the way in which the commission and its staff would safeguard any confidential information they need to handle. Over and above this, we propose to draw up guidance in consultation with the professions to cover the circumstances in which the commission would be able to obtain confidential information about the deceased. We would then propose that the Secretary of State would direct the commission through his power in Clause 15(4) to adhere to this guidance in the course of its work. I believe that these arrangements would ensure the right balance, allowing the commission necessary

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access to information in exceptional circumstances while ensuring any such information was handled with the greatest care.

I turn now to the disclosure of confidential information on the deceased. Again, the Government consider it very important that such information should be treated with the greatest respect. The amendments before us seek to apply Clause 17 to the deceased in the same way as to the living. The difficulty we face is that of all the circumstances in which Clause 17 provides that the commission may disclose information "with lawful authority", the most commonly used is likely to be where the individual concerned has given consent--under Clause 17(5)(a). We need to consider further to what extent the lack of consent available with regard to deceased individuals may pose difficulty in allowing the commission to act in the interests of the public.

It is important that we reach the right solution in the matter. If noble Lords will agree to withdraw Amendments Nos. 41 and 42, I shall undertake to continue to consider the matter. I hope to bring forward a proper resolution to what is, for the reasons that I have outlined, a difficult issue.

I now turn to the matter of untraceable individuals. The same general principles apply here. The amendment on this point would again bar the commission from obtaining confidential information in circumstances where it suspected there was a risk to the health and safety of patients but would need to be able to access more records before it could prove the risk. If it was not possible to trace the individual and obtain consent to access to the information, the commission would simply be unable to obtain this information, although it could be in the public interest that it should do so. Again I would argue that we should not put an absolute bar on access to information in such circumstances but should look instead to the safeguards I have outlined in terms of the arrangements for the commission's handling of confidential information.

In Committee concerns were raised that information should not be made available in a form which, in combination with other information, would enable the identity of an individual to be discovered. Two amendments in this group reflect this continued concern. There are practical difficulties surrounding this. As drafted, the provisions would tighten the duty on the body (for example, a hospital) making information available to the commission. While it is right and proper that we should expect such bodies to ensure they do not hand over data from which the identity of an individual can be deduced, it is simply not appropriate or reasonable to expect them to make an informed judgment about how this relates to information already in the hands of the commission or to assess with certainty what information the commission is likely to obtain in the future. I believe the test in the Bill on this point goes as far as is appropriate. However, we are considering the formulation of the provisions relating to information which identifies an individual and seeing if we can improve the clarity of the provision. I hope that this goes some way to meeting your Lordships' concerns.

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Finally, concern was raised in Committee about some of the provisions in the Bill dealing with disclosure of information. The amendment of the noble Lord, Lord Clement-Jones, deals with Clause 17(5)(e); that is, disclosure in connection with the investigation of any criminal offence triable in the UK. It has been suggested that this sets a lower threshold for disclosure than applies in primary legislation at other points of interface between the NHS and the criminal justice system. I have reflected on this provision and have some sympathy with it. I would, if I may, like to take a little longer to ensure we select the most appropriate precedent, but with your Lordships' consent I should like to take this point away and bring forward a suitable amendment at a later stage.

The final amendments deal with Clause 17(5)(h) which allows disclosure of confidential information where an individual is seen as a threat to the health and safety of other individuals. The amendments seek to substitute a test of,

    "risk of death or serious harm".
In this instance I have more difficulty with the proposed amendment. I believe that the precedent here argues more strongly for the form of words currently on the face of the Bill. In drafting these provisions we, of course, had close regard to the provisions in the ECHR. We are satisfied that this provision is compatible with the convention which your Lordships' House helped to give effect to through the Human Rights Act 1998. I believe that Clause 17(5)(h) is currently of adequate strength to prevent inappropriate disclosure of confidential information. It mirrors the wording under which the Health Service Commissioner operates. To restrict the provision in this Bill further would place the commission in the position that if it discovers information showing that a person presents a risk to patients, it may not be able to protect patients because of the strictness of the provision. In this instance, I believe further safeguard should be by way of guidance rather than primary legislation.

This has been an important debate, reflecting what I believe is a shared concern to strike the right balance between protecting patient safety and enabling the commission, where necessary, to act in the wider interests of the public. I apologise for the length of my remarks but I hope that I have been able to offer reassurances about the safeguards that will be in place to protect confidential information, to propose some respects in which I believe in the light of these debates we can improve the drafting of the Bill and to explain why other points are best handled other than through primary legislation. I invite the House to accept government Amendment No. 39, but I hope that the others will be withdrawn.

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