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Baroness David: I thank the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Masham, for their support. I think I can accept what the Minister said about Amendment No. 26. I see his arguments against the amendment and I think I accept those.

I am not so happy with his response to Amendment No. 24. It is extremely important that the views of children should be heard and that something about that should be on the face of the Bill. Providing for children to be interviewed, as the Minister said, is not at all the same as being able to listen to the views of children. I think that is important.

I believe that my noble friend referred to Article 4 of the UN convention whereas I referred specifically to Article 12. I am sorry that he did not accept that. I should like to think very seriously about this amendment. I shall read carefully what he said and I shall read Clause 28(3)(f) as he asked me to do. I am not altogether convinced, but I may return to the issue dealt with in Amendment No. 24 at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clement-Jones moved Amendment No. 25:



("(4) Regulations under this section shall correspond to section 23(3) of the Health Act 1999 with respect to the disclosure of confidential information which relates to and identifies a living individual.").

The noble Lord said: This returns to an issue of concern to the medical profession which was raised during the passage of the Health Act in this House. During the progress of that Act, the Government conceded amendments which safeguarded the confidentiality of personal health information in relation to the functions of the Commission for Health Improvement. This amendment replicates those safeguards to ensure that the national care standards commission, while carrying out its functions, provides the same standard of safeguard for the identification of patients in the independent healthcare and social care sectors.

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Section 23(2) of the Health Act 1999 ensures that the Commission for Health Improvement--CHI--will be able to obtain confidential information about individuals only in limited circumstances if such particular information related to a person's physical and mental health. Section 23(3) provides that CHI would not be able to obtain information, the disclosure of which is prohibited by another Act, regulations or directions. Regulations provide that if the information would identify an individual, CHI may require information to be produced in such a way as to prevent the identification of the individual.

Personal health information will be collected for the provision of care for individual patients and generally, of course, it should not be used for other purposes without a patient's permission. Only where there are exceptional circumstances may information be used without consent; for example, where disclosure is essential to avoid risk of death or serious harm to people and where it is not possible to obtain consent. The grounds for disclosure must be of sufficient severity to justify a breach of a duty of confidentiality.

Therefore, Amendment No. 25 is designed to introduce precisely those safeguards contained in the Health Act into the current Bill so that the national care standards commission would be bound by similar duties. I beg to move.

Earl Howe: In speaking to this amendment, I shall speak also to Amendments Nos. 87, 98, 99, 100, 112, 113 and 114 which are all grouped with this amendment. First, I fully endorse everything which the noble Lord, Lord Clement-Jones, has just said.

During the passage of the Health Bill last year, my noble friend Lord McColl argued persuasively for better and fuller safeguards against breaches of medical confidentiality in the section of the legislation dealing with the powers of the Commission for Health Improvement. We all remember how appreciative we were when the noble Baroness, Lady Hayman, took away our concerns and later ensured that appropriate government amendments were tabled to address those issues.

I wholly agree with the noble Lord, Lord Clement-Jones, that there is a direct parallel between CHI and the national care standards commission. Identical provisions should apply in each case.

My Amendment No. 87 to Clause 28 is intended to put it beyond doubt that inspectors should not have an automatic right of access to medical records. Grouped with these amendments is a series of other amendments with a broadly comparable theme. We must be terribly careful about allowing reports on adoption or fostering agencies to be placed in the public domain when they may contain references to specific named children or adoptive or foster parents. It is more than possible to imagine such details being included in a report about a particular agency if the inspectors consider such information to be material and relevant. But access to such detail should be restricted to those few people who have a need to know. I hope that the Government will take away this issue and consider it.

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7 p.m.

Lord Hunt of Kings Heath: All these amendments concern medical records and confidentiality. I shall begin by addressing the issues raised by Amendment No. 25.

Of course, I appreciate the concerns of noble Lords and why the amendment has been tabled in relation to disclosure of confidential information to registration authorities and persons authorised by them. It is the case that a registration authority will need access to confidential information in order to regulate services effectively. The Bill provides the registration authority with appropriate access to confidential information. Inspectors will, for instance, need to ensure that residents in a care home have a proper care plan.

The Bill already applies restrictions to the commission's access to documents such as medical records. As the commission will have to comply with the requirements of the Data Protection Act, I hope that the noble Lords will now feel reassured.

I am grateful to the noble Lord for raising the question of access to medical records in Amendment No. 87. Clearly, that is an important and delicate matter. It is also a matter covered by technical legislation, including the Data Protection Act 1998, which is due to come into force on 1st March this year. As I have already stated, the national care standards commission will be bound by that legislation.

The commission will regulate healthcare establishments that will be required to maintain records which will, of necessity, contain sensitive personal and healthcare information. In order to carry out its regulatory functions, for example, to ensure that proper care and treatment are being given, or to investigate concerns about the quality of such care, it may need to inspect medical records. That will, of course, have to be carried out by an appropriate health professional.

The current legislation already allows for clinical records held by a registered nursing home to be inspected by medical practitioners. I believe that the commission should also have that power to carry out its functions properly and, therefore, I would not advise accepting this amendment.

Turning to the other amendments in this group, particularly Amendments Nos. 98 to 100 and 112 to 114, I recognise that they are made with excellent motives in mind, those being the desire to keep the names of children, parents and foster carers confidential. We know that parents are concerned that their children should not be identified. We know that parents would not wish to be identified. We know that local authority foster carers and adoptive parents would not wish to be identified. The inspectors' reports are written keeping such matters in mind. We recognise that individuals want to be able to carry on their lives without the glare of publicity being turned upon them. It is right that their wish for privacy should be protected.

However, there may be legitimate times when private concerns may have to give way to a public interest. Although such occasions will be rare, as a

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general rule we would expect names to be kept confidential. That is good practice and we would expect it to be followed, but there may be times when it is in the public interest to name individuals. We need flexibility in the Bill to be able to do that.

Having heard our reasons for not accepting these amendments, I hope that noble Lords will withdraw them.

Baroness Knight of Collingtree: Before the Minister sits down, can he give the House an instance of the kind of situation in which it would be necessary to make names public? At the moment I cannot think of one, but I am sure that he has one in mind.

Lord Hunt of Kings Heath: I have always found that one is on shaky ground when giving examples. However, one example that has come to mind is the case of Mr Roger Saint. A number of authorities approved Mr Saint as a foster carer although he had a conviction for indecent assault. Later he was charged and convicted on numerous charges of indecent assault against foster children in his care. If an independent fostering agency or a local authority were to approve a person as infamous as Mr Saint as a foster carer, the commission may want to name him when assessing the appropriateness of the behaviour of the authority or the agency. I am aware that that may be an excessive example, but there could be other cases where it may be appropriate to name an individual and we would want that power to be available. As I said earlier, I believe that that would occur rarely.


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