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Lord Cope of Berkeley: My noble friend Lord Howe spoke to me about these amendments. I should like to support my noble friend Lady Masham, who has waited so patiently until this late hour and has spoken to the amendments clearly.
I wish to stress two points. First, as my noble friend said, the amendments seek only to reinstate rights that existed under the previous legislation but which were removed when the Data Protection Act 1998 came into force. I certainly doubt whether the changes were intentional. My understanding is that the NHS Executive has no difficulty about the aspects of the Access to Health Records Act 1990 which fell between the cracks of the new legislation. It would be odd if the Government wanted a watering down of the ability of patients to gain access to their health records as the theme of so-called patient empowerment is one that looms large in the new NHS plan.
I have another point. I do not believe that it would be adequate to deal with this matter by guidance issued to the NHS. I understand that these issues were raised with the Department of Health and the NHS Executive in correspondence with the Campaign for Freedom of Information. The suggestion was that it proposed to deal with the matters by issuing guidance. That would be helpful as far as it went, but it would not go as far as the amendments do in replacing a legally enforceable right. In particular, it would not apply to the private healthcare sector as did the old legislation. Guidance would obviously affect the NHS, but it would not affect the private sector, which would remain entirely outside the scope of the legislation. In addition, the guidance would not be enforceable in the way that these provisions were under the legislation that fell between the cracks. Therefore, I hope that the Minister will reflect on these matters, at least before Report, if he cannot accept these amendments.
Lord Clement-Jones: I support the arguments advanced by the noble Baroness, Lady Masham, and the noble Lord, Lord Cope. It appears that the NHS Executive would also support the arguments, even if it does not support the principle of putting it into primary legislation. In a letter to the Campaign for Freedom of Information, it states:
As the noble Lord, Lord Cope, pointed out, it is not adequate simply to have guidance. We have the opportunity to restore the rights in the Access to Health Records Act 1990 in to the Data Protection 1998, and we should take that opportunity in primary legislation, for all the reasons put forward by the noble Baroness, Lady Masham, and the noble Lord, Lord Cope.
Lord Bassam of Brighton: I should like to pay tribute to the noble Baroness for her careful and exceptionally detailed exposition of the three amendments. I promise that I shall not attempt to match that. However, I shall have to go through some of the detail. At the end of the day, there is not a great deal between us. We are intent on being helpful.
The Data Protection Act 1998 provides expressly that responses must be dealt with promptly. They must in any event be dealt with within 40 days. That requirement for promptness, which was not in the 1984 Act, ensures that those responsible for providing information must do so without excessive delay. The 1998 Act makes it clear that 40 days is not a benchmark; it is the upper limit of what is acceptable. The rule is, therefore, that if data controllers can provide the information before the maximum 40-day period has expired, they must do so.
We believe that this formulation achieves in a different way the aim underlying the noble Baroness's amendment. However, I can undertake to make one move in her direction. The Government are in the process of preparing guidance on access to health records. As part of that guidance, we shall make it clear that it is good practice to comply with the subject access requests, especially those to newly compiled records, within 21 days. In the light of that undertaking and the overall requirement for promptness, I trust that the noble Baroness will feel able to withdraw that amendment.
Amendment No. 336 would reintroduce, for a limited category of manual records and for a limited period of time a right for which legislation now superseded by the Data Protection Act 1998 formerly provided.
In bringing forward the 1998 data protection legislation, the Government decided to apply the single regime for which it provides to the records previously covered by certain sectoral access legislation. As a consequence of that, one or two of the features of the legislation, as the noble Baroness carefully explained, were not replicated. The right to add a statement of inaccuracy was one of those. Within the context of the new data protection law, we did not consider it to be so important a feature as to compel its retention. I shall explain briefly why that was so.
That is a major improvement on the previous position in that individuals are no longer alone. They have the support and help of a very powerful enforcement body. The commissioner will be able to take a view on the rights and wrongs of any disagreement about accuracy. Unlike the individuals, she has powers to force record-holders to comply with her decision. Therefore, there will not simply be a statement of inaccuracy; there will be a correction of the record. We believe that to be better than simply having the right to have a statement that one believes it to be inaccurate without the record being affected. I hope that the noble Baroness will accept that because, as I said earlier, I do not believe that there is a great deal between us on that point.
The Government understand the concerns about this matter. We do not believe that it is necessary to include the provision which the noble Baroness suggests within the legislation. However, we accept that there is a case for addressing it as a matter of good practice. The health department guidance for data controllers in the health sector will make clear that data controllers should allow individuals to include a statement of their views on the relevant records if they disagree with the content of those records. That provides double cover. Again, I hope that the noble Baroness will see that as an important change and an improvement on the position that existed prior to the 1998 Act.
I turn to Amendment No. 337. As with the previous two amendments, this amendment relates to the former sectoral legislation, the substance of which was included in the Data Protection Act 1998. Under the previous legislation, a number of different charging regimes existed for providing subject access but there was no maximum fee. In moving to the new regime, the Government decided broadly to preserve the arrangements for health records but with one important change in respect of manually held health records by introducing a £50 fee ceiling.
We believe that that represented a significant improvement for data subjects as compared to the arrangements which existed previously. The change was not uncontentious. The introduction of a £50 ceiling where previously there was no maximum has meant that subject access requests now generate costs for health bodies which provide access that are not always covered by the maximum fee that they are able to charge. In some cases, the costs far outweigh the maximum fee. Some of the health bodies concerned have made very clear to the Government their concern about having to bear those extra costs.
Because of those conflicting interests, the Government have recognised that the present arrangements will need to be reviewed in the light of experience. For that reason, we introduced them on a transitional basis. Under the regulations which set the
The Government would far prefer to proceed in that way rather than moving immediately to the arrangements proposed in the noble Baroness's amendment. The review will need to take into account all the relevant considerations and assess carefully the representations that are made on both sides of the case. The Government will want to consider all possible solutions to what we accept is a difficult problem, including the type of approach outlined in Amendment No. 337.
I hope that those explanations and the three complicated but nevertheless important areas to which the noble Baroness spoke will be given fair consideration by the Committee. I hope that the amendments can be withdrawn. I am sure that, particularly with regard to the last amendment, the Government will take the noble Baroness's comments as her representations on that issue and those will be fed into the review process. I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Masham of Ilton: I thank the Minister for his helpful reply. At this late stage I can only say that we shall try to see the Minister, if he is agreeable.
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