Police, Crime, Sentencing and Courts Bill
Monday 25th October 2021
(3 years, 1 month ago)
Lords ChamberPolice, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 40-III Third marshalled list for Committee - (25 Oct 2021)
Baroness Brinton
“(1A) In exercising the duty under subsection (1), no information may be shared by a specified authority, or an individual within a specified organisation, which breaches doctor/patient confidentiality as set out in the General Medical Council Ethical Guidance on confidentiality.”
Baroness Brinton (LD) [V]
My Lords, I beg to move Amendment 22 and will speak to Amendments 48, 54, 61, 64, 68 and 71, which all cover doctor-patient confidentiality in Clauses 7 to 17 in Part 2, Chapter 1 of the Bill.
I particularly thank the General Medical Council, the British Medical Association, the British Psychological Society and the British Association for Counselling and Psychotherapy for their briefings. I also thank the noble Lords, Lord Patel and Lord Ribeiro, who have added their names to these amendments. Their knowledge of and expertise in the regulatory and practical reality of doctor-patient confidentiality is especially welcome. Bluntly, the requirement for a specified authority to hand over data to police and other bodies, as set out in the Bill, is in conflict with the requirement of doctors and those working with patient data to maintain doctor-patient confidentiality.
It is particularly disappointing that the issues I will raise, which I also raised at Second Reading, were covered in the GMC response to the government consultation on a public health response to serious violence in 2019. Unfortunately, not one of the serious issues the GMC raised has been dealt with since then, which makes me wonder if this is deliberate. I hope the Minister will be able to demonstrate that that is not the case.
Our amendments seek to protect a patient’s data as confidential to them and the healthcare professionals who look after them. Amendment 22 adds to Clause 7 to make it clear that, regardless of any other data from other public bodies, patient medical data is protected by rules of confidentiality. Amendment 48 adds the same provisions to Clause 8, Amendments 61 and 64 add these to Clause 15 and Amendment 68 adds them to Clause 16. Amendment 54 deletes CCGs and health boards in Wales from the list of specified authorities, thus removing entirely the duty on them to be part of the regulations in this Bill. Finally, Amendment 71 reiterates these exclusions from the powers that Clause 17 gives the Secretary of State on the direction of CCGs and health boards in Wales.
It is quite extraordinary that this Bill proposes that any Home Secretary can, at will, demand that doctors and other healthcare professionals must breach patient confidentiality, over and above their responsibilities of confidentiality to their patients and their commitments to their regulatory body. Part 2, Chapter 1 of the Bill, on functions relating to serious violence, would introduce a new legal duty for the relevant agencies
“to collaborate, where possible through existing partnership structures, to prevent and reduce serious violence”.
If enacted in its current form, the Bill, particularly Clause 16(5), may mean that health services are no longer confidential. I hope this is unintended.
The Bill explicitly sets aside the common law duty of confidentiality owed to all patients by all regulated health professionals. This will undoubtedly raise questions and concerns in the minds of doctors, who understand their responsibilities around patient confidentiality as a fundamental, ethical duty which is crucial to upholding the trust that lies at the heart of doctor-patient relationships.
Elsewhere, in countries where healthcare services are not seen as confidential, and where there is a resulting lack of trust in healthcare professionals appropriately protecting as well as sharing information, there are real consequences for the health of individuals, communities and wider society. The public health implications of individuals and communities not interacting with healthcare services and professionals are particularly urgent and concerning in the context of the ongoing global Covid-19 pandemic. Unfortunately, as drafted the Bill carries these risks.
This is not just a concern for doctors. If you stopped anyone in the street and asked them if the personal medical information they discuss with their doctor at their GP surgery or at a hospital could be passed on to any other public body, including the police, they would be astonished. The one thing they know, they say, is that doctors—which is shorthand for healthcare service professionals and their staff—absolutely have to keep their personal medical data confidential. The problem is that it is not clear in the Bill whether sensitive health information is properly protected from inappropriate disclosure to policing bodies. This is worrying on two levels. First, the data is still subject to the requirements of data protection law. Also, any decision to disclose personal medical data must take account of the common law duty of confidentiality owed to patients by their health professionals, however that information is held.
Healthcare professionals, including doctors, also have to respond to the ethical standards set by their regulatory body. As drafted, policing authorities can request patient information, including identifiable information, which clinical commissioning groups and health boards in Wales must provide to them. Whatever the merits of this requirement, CCGs and Welsh health boards can share identifiable patient information only if that information has, in turn, been actively shared with them by the health professional who holds that patient data.
Professional standards, as regulated by the General Medical Council and the Nursing and Midwifery Council, among others, mean that doctors and other healthcare professionals are able to release confidential patient information, in this case to a CCG or health board, where one of the following conditions is met: the patient gives their consent; the doctor judges that it is in the best interests of the patient to do so; the law requires them to disclose, which would not be the case here; or they judge that the common-law test for disclosure without consent would be met. The GMC guidance to doctors, Confidentiality: Good Practice in Handling Patient Information, is very helpful in setting out where these boundaries lie, but makes it clear that it must be the decision of the individual doctor because, rightly, the natural assumption must be that personal patient data must be kept confidential.
The Minister may argue that the organisational duty to share information with a police authority or individual police officer would not impose a duty on an individual health professional to make a disclosure to the CCG or to health boards in Wales. That is a fallacy. I have a word of warning for the Government: imposing the duty on CCGs and health boards will not make it easier for identifiable patient information to be readily obtained by a policing body. That is because all staff in CCGs, health boards and GP surgeries, as part of their admin, and hospital staff who are not regulated but are part of a healthcare team are also subject to confidentiality duties as part of their employment contracts. They access patient records as part of their role and, in so doing, they will have to comply with the Data Protection Act and those contractual obligations about ethical confidentiality. This means that even if the common-law duty to protect confidentiality is not part of their contract, because they are not regulated, the relevant staff member, at whatever level in the organisation, would still have a duty to comply with the request from a policing body. If the Bill were to pass unamended and, say, CCGs and health boards decided to abide by the law under the Bill, could they put pressure on staff to release those records that they have accessed by virtue of their role that breaches GDPR?
I have some questions for the Minister, to better understand how the Bill will not destroy the confidentiality of patient data. Will its provisions mean that authorities such as CCGs and health boards in Wales—and integrated care boards, following the passage of the Health and Care Bill next year—will no longer owe a common-law duty of confidentiality to their patients, clients and service users? Will this mean that health services are no longer confidential services? If a duty to provide identifiable information to policing bodies is introduced, what provisions will be made for possible recourse for a patient or service user who finds out that their confidential information was shared with the police and considers that they suffered some unfair or unjustifiable detriment as a result? Will this be dependent on them being able to make a claim that GDPR obligations had not been met by the data controller? Most importantly, what independent safeguards, such as court orders or use of the court, are available to stop or limit the sharing or use of personal information?
Will the Government remove provisions that state that disclosures of information to the police would not breach that duty of confidentiality owed by doctors and others to patients, clients and service users? Will the Government instead work with the professional regulation, with the profession, with patient groups and others to create statutory guidance to support any new duty to collaborate? If the Government seek to retain provisions which require specified persons to share information, would anonymised information be sufficient? Will the Government commit to amending the Bill to provide that policing bodies can only request anonymous information?
I appreciate that the Minister might not have all the information in front of her to answer these questions, so will she write to me with the answers and have a meeting with me and the noble Lords, Lord Patel and Lord Ribeiro, who have added their names to these amendments? I know that the noble Lord, Lord Ribeiro, apologises for not being able to be in his place this afternoon. I beg to move.
Lord Patel (CB)
My Lords, I support the amendments in this group in the name of the noble Baroness, Lady Brinton, to which I have added my name. The provisions in the Bill relating to serious violence introduce a new legal duty of disclosure that seriously threatens the doctor-patient relationship, especially in relation to patient confidentiality.
The Bill explicitly sets aside the common-law duty of confidentiality that I as a doctor owe to my patients. Doctors regard patient confidentiality as a fundamental ethical duty, upholding the trust that lies at the heart of the doctor-patient relationship. The Bill’s proposals that relate to disclosure of patient information threaten the common-law provision of confidentiality, the requirements of data protection laws and doctors’ ethical standards.
The General Medical Council, in guidance on professional standards, makes it clear to all doctors when and in what circumstances a doctor can release confidential patient information without a patient’s consent. This, in my view, covers the requirement for disclosure in situations of serious violence. The police having the ability to gain identifiable—I stress “identifiable”—patient information from health bodies without setting out clear reasons, which should be limited by statute, is fundamentally wrong. The Bill does not provide clear statutory arrangements that have the confidence of the medical profession, as highlighted by its regulator—the GMC—the BMA and some other health professionals, and, importantly, the data protection guardians. These bodies have raised serious concerns.
The noble Baroness, Lady Brinton, spoke eloquently and in detail on all the issues in moving her amendment, so I do not need to enlarge on that, but I support her comments. The Minister needs to set out more clearly the Government’s intention, scope and implementation of the powers in the Bill relating to access to patient data. The noble Baroness, Lady Brinton, asked some key questions that also cover some of my concerns. The issues are important. Might the Minister agree to meet the GMC, the BMA and representatives of other health professionals? I look forward to her response.
Lord Carlile of Berriew (CB)
My Lords, I apologise for not having taken part in the Second Reading debate, when I was unavoidably abroad for professional reasons, or in the first Committee day, when unfortunately I was recovering from coronavirus—an experience I would not recommend to any of your Lordships given my experience of it. I rise to speak having very much enjoyed the speech by my noble friend Lord Patel, because I thought he introduced an element of balance that had not quite reached the debate in the earlier moments, eloquent as the introduction from the noble Baroness, Lady Brinton, was.
I will cite two pieces of my own experience as evidence. I spent 10 years as a lay member of the General Medical Council and, during those 10 years, sat successively on the health committee and the conduct committee. The health committee is a form of conduct committee, but with an obvious emphasis, as its name indicates. We spent a great deal of our time discussing whether doctors can be fully relied upon at all times, and in particular at critical moments, to understand the limits of the duty of confidentiality. Because it is not an absolute duty; there is a balance between the private rights of the patient and the general duty of the doctor not to disclose information, and the public duty of the doctor to disclose information if there is, for example, serious danger of violence to the public. I fear that more work will be needed on the amendments being proposed at the moment if that balance is to be sustained.
My second piece of evidence relates to an inquiry I conducted in 2012 for the then Secretary of State for Education, which related to something called the Edlington case. The brief story was that two small and neglected boys, who were fractionally over the age of criminal responsibility, nearly killed another child in a wood. Fortunately, that child and their companion survived—one of them only just. In my inquiry, I looked at the sharing of information by a host of organisations—schools, general practitioners, social workers and so on. It was a clear conclusion of my report that, if key information had been shared, the child who nearly died would not have been assaulted, the two very unfortunate little brothers who committed the assault would not have spent the succeeding years of their lives in a custodial institution and the schools would have been able to create a situation in which the dreadful problems for everybody concerned did not arise. One of the key issues in that case was that the general practitioners did not fully understand the balance between their duty to the public and the rights of their patient—and near-disaster ensued.
To noble Lords moving these amendments and to the Minister, who I know listens to these debates extremely carefully, I say that this is not the time for people to take up closed positions on these matters. There is a lot of work to be done. I think my noble friend Lord Patel probably agrees with this, but I speak with great trepidation, because right in front of me are two of the most distinguished doctors in the whole country. We must ensure that, where it is necessary as a public duty, they and others need to be consulted to ensure that the balance is right and is therefore not the subject of the controversy we have been hearing about already this afternoon.
Baroness Chakrabarti (Lab)
My Lords, I do not disagree with the noble Lord, Lord Carlile, but I none the less think that the noble Baroness, Lady Brinton, and her colleagues are on to something. There is no question but that the noble Lord, Lord Carlile, is right that, under common law, doctor-patient confidentiality is not and has never been absolute. The question is when it is trumped by other considerations, and who decides.
It is always dangerous to suspect what the Minister will say in her eventual reply, but I suspect that she will say reassuring things, and her colleagues will have given her reassuring things to say, about the intention. I am sure that the intention is not for the wholesale trumping of doctor-patient confidentiality. There is no public interest in that and the Government would not want people to take that as the case, because it would be completely counterproductive not just to the effective functioning of public health but to law and order. To give an obvious example, if everyone involved in knife crime feels that there will be no confidentiality whatever in the emergency room or elsewhere, one runs the danger of people not going to get the vital help and emergency care that they need. I know that the Minister will understand that.
Going back to the detail—as this is Committee—when should there be a trumping and who decides? That is a worthwhile, detailed conversation to be explored between organisations such as the General Medical Council and the Minister and her team. Because, while it may not be the Government’s intention to trump common-law principles of ethics and confidentiality en masse, we have to remember of course that statute displaces the common law. If the statute is unclear and people think or perceive that the common law has been trumped and that the decision has been taken completely out of the hands of an individual practitioner on the advice of ethical bodies or ultimately taken out of the hands of a judge and that the principles of confidentially have been totally trumped, we have a problem—and that means the Government have a problem as well.
So I hope that, when the Minister eventually replies to this debate, she will not reject these concerns out of hand and will take on board the possibility of a bit more detailed discussion about when the duties to collaborate and so on should trump confidentiality, when not and, crucially, who is to decide. For my part, I would favour practitioners, properly advised, perhaps by more and further guidance from their professional bodies, and, if necessary in individual cases, by the order of a judge, possibly sought on an ex parte basis, as opposed to anything too wholesale or administrative. That is just my suggestion. I am sure that the Minister and her team will be able to come back with something that meets the concerns of the noble Baroness, Lady Brinton, and her colleagues before the next scrutiny stage of the Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am very minded to support this series of amendments. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, explained, doctor-patient confidentiality is far more than a common-law obligation. It is an ethical duty in a relationship of trust. Will the Minister consider whether the public understand what this aspect of the Bill compromises of that confidentiality?
Our doctors know a lot about us: the most intimate physical details, sometimes our psychological weaknesses, sometimes our darkest fears about life and death matters. While it has been a long time since we offered uncritical deference to our doctors, as patients and at our most vulnerable we are not equal partners and we need to trust that relationship, despite the power imbalance. So it is understandable that the General Medical Council and the British Medical Association are rightly worried that the Bill will smash the principle of confidentiality to bits.
The issue of confidentiality and trust will appear later in Committee in some other amendments that I shall speak to later, but my main question here is: why is this part of the Bill necessary? I genuinely do not understand. People involved in medical practice understand that, while confidentiality is an important legal and ethical duty, it is not an absolute. As the noble Lord, Lord Carlile, explained, it may be that some doctors get the balance wrong, but doctors are already expected to share confidential information if it is in the public interest, and that includes serious crime. However, this is presently understood as the exception, not the rule. At the moment, doctors need to consider the specific circumstances of what to share to satisfy the intended purpose and when to share it, and they have to weigh up the benefits and harms of disclosure.
Doctors are asked and trusted to exercise their professional judgment and to strike a balance between individual and community rights. I, for one, want to continue to trust medical personnel to make such judgments in good faith. Is the Minister saying that the Government do not trust them on this? It feels like an attack on professional discretion that will undermine doctors in the eyes of the public. At the moment, with the medical profession being under so much pressure and scrutiny—anger over no face-to-face GP appointments, tragic backlogs in hospital treatments—there is already tension between the public and the medical profession. If it comes out that when you go to the doctor, the sacred bond of confidentiality could in fact be expected to be broken, that will be very damaging for no good purpose.
Baroness Jones of Moulsecoomb (GP)
My Lords, I have made no secret of the fact that I think that this is an appalling Bill. When I started looking at the amendments, I had to struggle not to sign up to all of them, because they all made sense, but I had to let my noble friend Lady Bennett of Manor Castle sign some, and she signed Amendment 48. She apologises for not being in her place today.
The noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, laid out why all the amendments in this group are so important. Bringing together all the local authorities and other bodies to reduce serious violence is an excellent initiative, but it cannot come at the expense of breaching key safeguards for sensitive personal information, especially medical information. The amendments are about striking the right balance so that authorities can work together without being under a duty to breach doctor-patient confidentiality. Without this, we risk ever greater government intrusion into our personal and private lives in the vague name of keeping us safe—something this Tory Government seem to be very keen to do by quite repressive measures. By supporting the amendments, we can ensure that the Government do not overstep the mark.
Lord Hope of Craighead (CB)
My Lords, I support the principle behind the amendments but will make two short points to elaborate on what has already been said. First, I support what the noble Lord, Lord Carlile, said about balance. This has been referred to as a common-law duty, but the common law does not strike hard edges in such matters; it leaves room for balance to take account of particular circumstances.
At one stage in my career, when I was a senior judge in Scotland, I needed to know the state of health of one of my judges, who I knew was terminally ill with cancer. I was able to persuade his doctor, his skilled adviser, to let me know the truth when the judge himself was not prepared to do that. I felt that was the right thing to do; he thought it was the right thing to do; and it was an illustration of balance. The information remained entirely confidential between ourselves, but I had to take a decision as to the extent to which I could trust that judge to continue to sit in open court. The advice I received was very welcome: I was able to allow him to sit in certain conditions, in the light of the information I was given. I give that as an illustration of the way in which balance can operate in practical situations.
The other point to which I want to draw attention is the difference between Amendments 22 and 48. On the one hand, Amendment 22 states simply that
“no information may be shared … which breaches”
the duty set out in the General Medical Council ethical guidance on confidentiality. That is a simple formula that merely requires looking at the way the guidance is expressed; no doubt, with the balances that are built into the guidance. On the other hand, Amendment 48 says that regulations
“must not require the release of personal health information if a doctor regards that release as a breach”
of the duty of confidentiality.
I rather wonder whether that would be the right way to go: to leave it up to the decision of a doctor without further consideration. With great respect to the medical profession, that may be taking a little bit of a risk, because there are situations where a doctor may feel under pressure and that would not be the right thing to do. I think the amendment would be strengthened by taking out the reference to the doctor and just laying it down as a matter of proper structure that the regulations should not require the duty of confidentiality, as set out in the guidance, to be breached, leaving individual doctors’ decisions out of it.
Lord Kakkar (CB)
My Lords, I support the principles of the amendments and declare my interest as a registered medical practitioner.
The debate in Committee has been most interesting in this regard, because it raises a delicate and deeply sensitive issue for any practising clinician—any practising healthcare professional—with the suggestion that something that is considered absolutely sacrosanct, the duty of confidentiality, may be in some way undermined.
That is, of course, not to neglect or fail to understand the fact that there are clear circumstances provided in the context of well-recognised and frequently applied professional guidance in which confidentiality may indeed be breached. But there is a suggestion that the way the Bill is drafted, there may be a deeply undermining impact on a very important principle, one that is so well recognised that it is protected in both data protection legislation and, as we have heard, common law. I wonder whether the Minister can explain why it is so important to achieve what are important objectives in the Bill that we need to undermine the common-law effect of such an important principle—confidentiality of medical information—and why they need to be promoted in the way proposed in the Bill. Have Her Majesty’s Government considered other ways to achieve their important objectives without creating this deep anxiety and uncertainty, because the full implications are clearly not well understood by the regulator or by professionals more generally, and which, we must therefore all feel, has the potential to be attended by consequences that could be deeply unhelpful to the nature and solidity of the doctor-patient relationship?
Baroness Hamwee (LD)
My Lords, I am well aware that we have some of the most senior lawyers in the country in the Committee today, and very senior doctors who have grappled with these issues, so perhaps I should put my point as a question. If the legislation provides for something that a doctor “regards”, is not the concept of reasonableness implied in that proposition, so the doctor must be reasonable in what he regards?
Lord Patel (CB)
My Lords, I am sorry to intervene again, but it may help the debate if I address some of the issues raised. I should have mentioned in my speech—but I deliberately did not—my personal experiences when I was approached on four occasions by the police to give some information about patients. I refused, because I followed the guidance of the General Medical Council, and at no time did that threaten or harm the health of the patient nor anyone else—relatives or any members of the public. On one occasion, I voluntarily informed the police about a patient who had approached me for completely different reasons, but I had noticed that harm was being done to her and, on subsequent occasions, it became quite clear that it was becoming a serious issue. Therefore, I disclosed information to the police; again, following the GMC guidelines.
The common law may have soft edges, but if a doctor follows the common law and the guidance the GMC issues, it works. On what happens when a doctor refuses to give information, despite the fact that the patient is being harmed or that the patient may cause harm to other people, then the doctor will be wrong in his or her duty, and therefore can be overridden. That is the only point I would make.
Lord Carlile of Berriew (CB)
My Lords, I hesitate to be disorderly, but I was asked a direct question by the noble Baroness opposite. I think in fact it has been pretty fully answered by my noble friend Lord Patel, but the noble Baroness phrased her question in the language of judicial review, and I would just point out to her that in the real world the possibility of the judicial review of a single medical practitioner in these circumstances is not realistic in the slightest, so it would not happen. If I may say so, it is a good question but the wrong good question.
Lord Paddick (LD)
My Lords, I thought there was no such thing as disorderly interventions in Committee. Everyone is free to speak as many times as they wish at any point in the debate, so I am very pleased that the noble Lord used that opportunity.
In this group we return to the issue, which I raised last Wednesday, of what the new legal duty is really about—a police-led enforcement approach to preventing and tackling serious violence rather than a public health approach. Many and various specified authorities come under this new legal duty, and there are various reasons why these authorities should not be forced to divulge personal information to the police, of which the pre-eminent, and perhaps most readily understood example, is patient confidentiality.
In addition to the excellent points made by my noble friend Lady Brinton and the noble Lords, Lord Patel and Lord Kakkar, I should also mention the joint briefing that noble Lords will have received from mental health professionals represented by the British Psychological Society, the representative body for psychology and psychologists, and the British Association for Counselling and Psychotherapy. They believe that the Bill as drafted allows the police to override the duty of medical confidentiality, eroding trust and confidence in clinical psychologists, counsellors and psychotherapists with the associated threat to public health, as we have heard from the noble Lord, Lord Patel, who also believes that it will undermine the relationship between him as a doctor and his patients.
Like medical doctors, these health professionals are able to share confidential information on public-interest grounds already, on a case-by-case basis, if that is necessary for the prevention, detection or prosecution of serious crime or where there is an imminent risk of serious harm to an individual. There is already a system in place, as the noble Baroness, Lady Fox of Buckley, has said. As the noble Lord, Lord Kakkar, has said, we support what the amendments seek to achieve, which is to prevent the Bill undermining patient confidentiality.
Whether we are talking about doctors in general practice or psychiatrists, psychologists or counsellors, there are already well-established, well-understood policies and procedures, practices and protocols to deal with the balance between patient confidentiality and the police being able to access confidential information in the exceptional circumstances where it is necessary for public safety. Perhaps the duty of confidentiality for those in other fields is less well established and accepted, and we will come to those in another group, but, at least when it comes to patients’ and clients’ health and well-being, surely there can be little argument that the existing provisions are adequate, work well and should not be overridden.
Having said that, I listened carefully to the noble Lord, Lord Carlile of Berriew, who pointed out that there is a balance to be achieved and that in the past medical practitioners have got that balance wrong where they perhaps should have passed information to the police. Surely, however, that is an argument for enhancing or reviewing the current system rather than arguably going much too far in the other direction and making it a legal duty that doctors breach medical confidentiality.
We on these Benches say that what the Bill tries to do in terms of compelling health professionals, in this case, to divulge information to the police goes too far. What needs to be done is simply going back and looking at any examples that the Government can give, as the noble Lord, Lord Carlile, has done, where current practice does not work effectively.
Lord Rosser (Lab)
I thank the noble Baroness, Lady Brinton, for raising the issue of medical confidentiality. She said the amendments provide that in exercising the serious violence duty, an authority or individual could not share or be required to share any information that would breach doctor-patient confidentiality as set out in the General Medical Council ethical guidance on confidentiality. One of the amendments would also remove clinical commissioning groups and local health boards from the list of authorities that are subject to the serious violence duty under Part 2 on the prevention, investigation and prosecution of crime.
As has been said, Clause 9 gives the Secretary of State the power to authorise by regulations the disclosure of information by or to a prescribed person, a specified authority or local policing body, an education authority, a prison authority and a youth custody authority. While the Bill states in Clause 9 that such regulations
“must provide that they do not authorise a disclosure of information that … would contravene the data protection legislation”,
that does not relate to a breach of any obligation of confidence owed by the person making the disclosure in respect of which the requirement is only that the regulations “may” provide that such a disclosure does not result in a breach.
Clause 15 on the disclosure of information provides for the disclosure of information but states:
“A disclosure of information authorised by this section does not breach … any obligation of confidence owed by the person making the disclosure”.
Yet, as has been said on more than one occasion today, it is the common-law duty of confidentiality that helps to uphold the trust of patients in health services, which can be extremely hard to gain and extremely easy to lose.
Clause 16, on the supply of information to local policing bodies, states:
“A local policing body may … request any person listed … to supply it with such information as may be specified in the request”,
but
“a person who is requested to supply information … must comply with the request”
and:
“A disclosure of information … does not breach … any obligation of confidence owed by the person making the disclosure”.
That sounds more like a demand than a request. The only caveat is that compliance with the request for information does not require a disclosure of information that would contravene the data protection legislation, although even then
“in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account”.
The subsection in question is the one that the person so requested to supply information must comply with the request.
Could the Minister give a couple of examples of what that means in practical terms? What do the words
“in determining whether a disclosure would do so, the duty imposed by that subsection is to be taken into account”
actually mean in hard, practical terms?
Maybe I am wrong, but Clause 16 appears to legally require clinical commissioning groups and local health boards to provide confidential health information to the police, and Clauses 9 and 15 would grant CCGs and LHPs permission to share confidential health information with a wider list of recipients such as councils and educational authorities, as well as the police. Perhaps the Minister will put our minds at rest on this, but on the face of it this appears to introduce a mandatory blanket obligation for clinical commissioning groups and local health boards to share confidential health information with the police, replacing, as has been said, the existing system, which allows healthcare professionals to disclose confidential information on public interest grounds on a case-by-case basis if it is necessary for the prevention, detection or prosecution of serious crime or where there is an imminent risk of serious harm to an individual.
I hope the Minister, speaking on behalf of the Government, can address in her response the concerns that have been raised, and say what safeguards would prevent confidential medical information being inappropriately made available under the Bill, beyond the existing criteria, guidance and procedures for such disclosure in relation to public interest grounds. If the Government are saying—I am not entirely clear whether they are or not—that the present arrangements are not properly working or are no longer appropriate in today’s world, perhaps there is a need for further discussions by the Government on this aspect of the Bill to make sure that we get any change in the law right and maintain what has been referred to in today’s debate as “the right balance”.
We need to know far more about the real reasons for the change the Government are proposing, what its implications are and how it will be interpreted and applied under the terms of the Bill. I, too, hope the Minister will agree to further discussions on this issue in view of the concerns that have been raised and which are certainly worthy of a full and detailed response with examples.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate; it has been incredibly informative. On the last point made by the noble Lord, Lord Rosser, about further discussions, and as requested by the noble Baroness, Lady Brinton, I am very happy to convene a meeting. On that note, officials have met the GMC to discuss the data-sharing clauses. They have agreed to support the drafting of the statutory guidance and officials have also offered to meet the BMA, but a date has not been fixed. I would like to schedule the meeting that the noble Lord and the noble Baroness request, and it would be great if they would join it.
On the first point made by the noble Lord, Lord Paddick, about a police-led approach, in the serious violence duty draft guidance it is writ really quite large that this is not led by one agency or another but is a shared endeavour towards a public health approach. There are two pages on that, and I think the noble Lord might find that really helpful. At this point, I also thank the noble Lord, Lord Carlile, for both giving the benefit of his experience and bringing balance to the debate; “balance” seems to be a word quite often used in this debate.
Information sharing between relevant agencies is absolutely essential to the discharge of the serious violence duty. The issue before us is how such information sharing, particularly when it relates to personal data of identifiable persons, is properly regulated, and the scope of any restrictions on data sharing. I recognise that there are concerns, particularly in respect of patient information, and that we need to examine them carefully, but I am also concerned that at least some of these amendments seek to significantly weaken the provisions in Chapter 1 of Part 2. Amendment 54 is a case in point. It would have the effect of removing specified health authorities—clinical commissioning groups or CCGs in England and local health boards in Wales—from Schedule 1 and consequently remove the requirement for such authorities to participate in the preparation and development of local serious violence strategies.
I know that noble Lords would agree that the health sector has a very important contribution to make to local partnership working to prevent and reduce serious violence. The provision of local health data will be necessary to take a comprehensive view of the levels of violence being brought to the attention of services in a local area. Local health services may also be involved in the implementation of local strategies, for example where health-related support services are to be commissioned for those at risk of or involved in serious violence. I therefore do not think that it is appropriate to remove specified health authorities from this part of the Bill.
On the point made by the noble Lords, Lord Paddick and Lord Rosser, I would like to be clear that the information-sharing provisions under the serious violence duty do not place any mandatory requirements directly on GPs, doctors or other practitioners to disclose information that they hold. The power to disclose information in Clause 15 applies to information held by CCGs in England and local health boards in Wales, as they are specified authorities. Local policing bodies can request information under Clause 16 from CCGs in England and local health boards in Wales only when it relates to them, their functions, or functions they have contracted out, and only where that information is for the purposes of enabling or assisting the local policing body to exercise its functions under Clause 13 of the Bill. I think that was the point that the noble Lord, Lord Patel, referred to, unless I am wrong.
Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on a case-by-case basis, in line with data protection legislation, which is also the case for the serious violence duty provisions.
On the common-law duty of confidentiality, the point made by the noble Lord, Lord Carlile, about balance was really pertinently made. So many crimes that we can all think of, particularly against children—he mentioned a case that involved children—could have been avoided had practitioners shared relevant information. Existing statutory guidance on the Care Act 2014 already signals specific circumstances where the common-law duty of confidentiality and data protection legislation would not be contravened by the sharing of personal data—for example, where there is an overriding public interest.
Confidentiality can be overridden if there is a necessity—namely, abuse or neglect. Ordinarily, consent should be obtained but, where this is not possible, practitioners must consider whether there is an overriding public interest that would justify information sharing—namely, risk of serious harm. Again, that point was made by the noble Lord, Lord Patel. Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on that case-by-case basis.
I hope that I have provided some reassurance on this matter. As I indicated at the start, I know that there are particular sensitivities about sharing patient information, but, having heard the concerns, I will reflect carefully on this debate and convene the meeting that noble Lords requested ahead of Report. I hope that, with that, the noble Baroness, Lady Brinton, will be content to withdraw her amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
May I remind the Committee that the noble Baroness, Lady Brinton, is participating remotely? I apologise if I interrupted somebody who wanted to speak.
Baroness Chakrabarti (Lab)
Forgive me, but before the Minister sits down, can I ask her to reflect and, if she wants to come back, to address the issue of who decides? I am very grateful for her assurance about intention and that there is no attempt to go further than classical practice has gone, which is a public interest exception to general patient confidentiality. But if, for example, under the new provisions, there were to be a dispute between, say, the police and the relevant health authority and/or the relevant health authority and the individual practitioner, who would decide? That is of course crucial in relation to patient-doctor trust.
Baroness Williams of Trafford (Con)
The decision may be challenged, but the person who decides would be the person who holds the data.
Lord Paddick (LD)
My Lords, I am very grateful to the Minister for her explanations and for the promise of further meetings. It might help those further meetings if I raise the issues I have now. I am concerned at her saying that approaches cannot be made directly to medical practitioners but only through these other bodies. If the result was the same—that confidential medical information about individuals was divulged—that is not much of a reassurance. I am grateful for the information that officials met with the GMC and that it agreed to help with statutory guidance. Perhaps the Minister can meet with the GMC and it can help with amending the Bill.
The Minister said that the issue with some of the amendments is that they weaken the duties in the Bill. That is the whole purpose of the amendments. Regarding the draft guidance and its emphasis on a public health approach, that is not what is on the face of the Bill. The perception of all those I have spoken to—we will come to this issue when considering further groups—is that this is all about providing information to the police. To be fair, the Minister said so in her response. The belief among many authorities is that this is all about providing information to the police and is not a two-way process.
The Minister talked about the Care Act and said that there is already a duty to pass over confidential medical information if there is an overriding public interest. Where in the Bill does it say that there must be an overriding public interest before information is passed over?
Baroness Williams of Trafford (Con)
The detection and prevention of serious violence would be the relevant part, which also reads across to the Care Act 2014. There would have to be a public interest assessment and as I said, there is no mandation. But the body or doctor in question would, as the noble Lord, Lord Carlile, said, have to balance the importance of the prevention, detection, and reduction of serious violence with the disclosure of that information.
Baroness Brinton (LD) [V]
My Lords, I thank all noble Lords who have spoken on these amendments, especially those who are doctors—the noble Lords, Lord Patel and Lord Kakkar—and those who are lawyers. The noble Lord, Lord Carlile, and the noble and learned Lord, Lord Hope, rightly pointed out the balance of decision-making that every doctor must strike. I too made that point in referring to the excellent GMC guidance on confidentiality and good practice in handling patient information. I apologise if my point was not clear. It is not that doctors do not have to navigate the boundaries of confidentiality, because they do and I am quite sure there are times when they can be improved, as I said. As my noble friend Lord Paddick and others have said, this Bill contains powers that appear to override these responsibilities, demanding that CCGs and health boards in Wales pass on personal medical information; however, the doctor who logged that data is unable to take part in any decision about it being passed on.
The noble Lord, Lord Rosser, explained the concerns of those of us who have signed these amendments about these duties, which clearly override a doctor’s choice in making such a decision. The noble Lord, Lord Patel, said that circumstances are vital, since under this Bill he, as a doctor, would not necessarily be consulted by the CCG in question before it passed on any sensitive data to the policing body. I am grateful to the noble and learned Lord, Lord Hope, for Amendment 48, the wording of which I will look at before any amendment is brought back.
The noble Baroness, Lady Chakrabarti, and others talked about where the boundaries lie. We have heard repeatedly about the boundaries, but I want to pick up on my noble friend Lord Paddick’s question to the Minister. He asked her to point out to us exactly where in the Bill it sets the parameters for the GMC guidance and everything else we have discussed. I cannot find it, and nor can the GMC, the BMA and others who have briefed us. That is why we have tabled these amendments. We want this to be made clear. In a perfect world the data would be pseudonymised or anonymised, but we recognise that for some of these clauses that is inappropriate. Therefore, the doctor who has taken that medical information must be involved in any decisions.
I thank the Minister for the offer of a meeting and absolutely appreciate that this will happen. We understand that information will need to be shared between bodies—that is not the object of our amendment. We agree that the major issue is whether that information is identifiable and whether the doctor who made the original decision to record it is part of any decision about its being passed on. I completely understand the Minister’s concerns about Amendment 54. However, the question of the balance of the information being passed on—in this case, personal, confidential and identifiable medical data—clearly must be worked out more explicitly to give the registration bodies, doctors and nurses confidence that their use of the data will not be abused by others who may not have the full information required to address those difficult boundary issues. The doctor must have a say in any data being passed on.
I look forward to getting answers to my many questions in due course, so that we can all gauge who is making the decisions about the data being passed on and what level of information can remain confidential. I thank the Minister for her answers. I expect to return to this issue on Report and look forward to action in the meantime, such as meetings at which we can find those answers. For now, I beg leave to withdraw my amendment.
Lord Young of Cookham
“(3A) Specified authorities which are housing authorities must have particular regard to their housing duties when performing their duties under this section.”
Lord Young of Cookham (Con)
My Lords, this amendment is grouped with a number of other amendments giving priority for housing for those at risk. As I said at Second Reading, I very much welcome this Bill, particularly Part 2. I gave notice then that I would be tabling some housing-related amendments to make the Bill even better. I am grateful to Stella Creasy in another place, who has championed the cause of young people at risk and whose office has given me some very helping briefings.
The noble Baroness, Lady Blake, and I are job-sharing on this group. She will speak to Amendment 51, the principal amendment. In a nutshell, it seeks to specify in law what the Government say is happening anyway and should indeed be happening if best practice is to become universal in this highly sensitive area of gang violence, child exploitation and abuse.
Basically, the amendment would put children at risk in the same category for priority housing as families fleeing domestic violence—a measure introduced in the Bill as a result of pressure from, among others, my noble friend Lady Bertin. It would ensure that, instead of being forced to gather extensive evidence and demonstrate unique vulnerability—not easy if your life is under threat—such people were given priority for urgent moves. This would be automatic.
The noble Baroness, Lady Blake, will develop the case. I will confine my brief remarks to the other amendments in this group. Part 2 of the Bill outlines duties to collaborate to prevent serious violence. These amendments would ensure that housing authorities and registered social landlords were included in this new duty, and that there is timely information sharing between the police and housing authorities for the purpose of preventing serious violence. Any effective multiagency response must include housing; including housing in the Bill will support a comprehensive public health approach to tackling and preventing serious youth violence. Education, prison and youth custody authorities are listed in this part of the Bill but housing is not, despite the Explanatory Notes on this section of the Bill saying this on page 13:
“The Strategy explained that the Government’s approach was not solely focused on law enforcement, but depended on partnerships across a number of sectors such as education, health, social services, housing, youth services and victim services.”
These amendments complement those tabled by the noble Lord, Lord Paddick, and others involving the NHS and children’s social care, which we will come to in a moment.
Amendments 26, 29, 31, 38 to 40 and 44 would amend Clauses 7, 8 and 9. They would require the strategy for a local government area, as well as the related powers to collaborate and identify kinds of violence, to include housing authorities so that they are fully consulted as the strategy is drawn up and the actions they need to take are specified. The Minister may argue that, although the Bill specifies who must be involved in the plan—education, prison and youth custody authorities—it does not preclude others from being involved. However, as far as I can see, the Bill does not say that; it implies exclusivity to the three nominated authorities. Without Amendment 38, for example, housing authorities would not have to carry out their role in any plan to reduce violence.
Of the last amendments, Amendment 62 would require housing authorities to disclose relevant information, which they are not required to do at the moment. This is necessary. One serious review case study said that there was
“little evidence of the Housing Service being closely tied into the operational work of the Safeguarding Partnership. As a consequence information that was only known to the Housing Service took time to percolate to the other partners, while the implications of the housing stress under which Child C’s family was placed were not discussed in a multi-agency forum.”
Much of the violence that young people are at risk from is location-based, such as a gang on a particular estate. Housing providers may have an insight into this in a way that others do not. Without Amendment 62, that risk would persist; Amendments 66, 69 and 70 cover the same points.
These amendments would ensure that government policy is effectively delivered by ensuring that housing authorities are included in the Bill as key partners in protecting young people against gang violence. I beg to move.
Baroness Blake of Leeds (Lab)
My Lords, I support the amendments in the name of the noble Lord, Lord Young, to which I have added my name. I too pay tribute to Stella Creasy in the other place for her commitment and great foresight, as well as for the support of her team.
As we have heard, the purpose of this chapter is to prevent and reduce serious violence by requiring public authorities to co-operate and develop strategies for tackling this issue. The Government tell us that their aim is to build a public health approach to the reduction of serious violence. That aim is welcome only if we can put in place the right tools to achieve it. What we will keep coming back to throughout today’s debates is that a public health approach works only when it is genuinely focused on prevention and early intervention, and is properly invested in. If not, we will continue simply to treat the symptoms of serious violence, not its causes.
Lord Carlile of Berriew (CB)
My Lords, I support the amendments introduced so ably by the noble Lord, Lord Young, and the noble Baroness, Lady Blake. This has been an example of how good this House is at certain things, with two noble Lords with huge experience in the policy area under consideration—and I understand, in the noble Baroness’s case, a deep understanding of the housing situation in one of our major metropolitan cities, Leeds. We should listen to them with great care; I am sure the Minister will.
Other examples can be given of evidence showing that housing really needs to be included right at the core of all these considerations. A recent initiative by a very experienced retired criminal Queen’s Counsel, Bruce Houlder QC, focused on knife crime. The work that Mr Houlder—a very good friend of mine—is now doing, to some acclaim, demonstrates, among other things, that knife crime becomes a cultural issue in certain housing areas. It requires attention in a Bill such as this.
I want to add something about the Edlington case, which I mentioned earlier. One of the issues that arose in that case, which I included in my report to the Secretary of State, was that housing was not included in the consultative group trying to resolve the florid problems of the two children who became serious offenders. Had it been included, they would have been moved and would not have been allowed to stay in the housing where they were. It was absolutely fundamental as a mistake, and we are now nearly 10 years on.
I hope that the Minister responding to this debate will take on board what has been said and ensure that further consideration is given to these amendments.
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I rise to speak briefly to this group of important amendments, and declare my interest as a vice-president of the LGA.
The noble Lord, Lord Young of Cookham, and the noble Baroness, Lady Blake of Leeds, set out the reasons for these amendments, and I fully support them. Those responsible for providing housing have changed over the years, from the time when it was solely the purview of local authorities to now, when it is a mix of elected councils that hold housing stock themselves through to housing associations and registered social landlords providing a mix of accommodation for couples, families and, less frequently, single people living alone.
Whatever their circumstances, tenants all deserve to feel safe in their home and free from violent attack. Women and young people are often the target of violence, sometimes with catastrophic consequences. Some of this will be domestic violence; in other cases it will be gang related. Whatever the cause or outcome, it is essential that the housing providers have a robust strategy in place—first, to prevent violence in the first place and, secondly, to deal with the aftermath once it has occurred.
Housing provider co-operation with the police is essential in dealing with violent abuse. Relying on GDPR protection to avoid releasing information is unhelpful at best and, at the other end of the spectrum, borders on ignoring the violent act itself. Of course, this release of information on behalf of the housing providers does not extend to medical professionals, the subject of the previous group of amendments.
Violence is abhorrent and prevents people enjoying the safety they should feel in their home, whether that is a bedsit or a three-bedroom family home. Local authorities will receive complaints about the behaviour of their tenants from neighbours. This might be about noise or anti-social behaviour. In more serious cases, the complaints will be about violence suffered by children and women, and sometimes men, living in a nearby home. It is difficult for local authority housing departments and RSLs to take action on what might be a malicious complaint, but I believe that where a robust serious violence reduction strategy is in place, officers will have the confidence to act before the violence ends in a tragedy, as in the case study the noble Baroness, Lady Blake of Leeds, mentioned.
I have only one caveat: the Government should ensure that local authorities, whose budgets have been slashed over recent years, have sufficient funding to be able to produce and implement a violence reduction strategy and not be expected to fund additional work on their already overstretched budgets.
Society is becoming immune to the level of violence experienced by some communities. This has to be reversed. A serious violence reduction strategy for each community living in social housing, whoever the provider may be, is a step in the right direction towards raising the profile of the damage that such violence causes and beginning to tackle its reduction. I fully support this group of amendments.
Lord Bach (Lab)
My Lords, I support these amendments absolutely; they are practical and in the real world. From my experience as a police and crime commissioner over five years, it is quite clear that serious violence has a huge amount to do with place and a lot to do with housing in those places. If we are to have the partnership that is presumably behind the Government’s proposals on serious violence, it is absolutely essential that housing and those who control it have a vital role; without them, all sorts of disasters will occur.
When I was a police and crime commissioner, I would hear from police officers or citizens day by day about the problems in areas where they lived and the mismatch, sometimes, between those responsible for housing and their ability to talk to the police and get things done, on either side, as quickly as possible. These are very important amendments, and I hope that the Government will listen carefully to them.
Lord Paddick (LD)
My Lords, we support these amendments. It is not just victims of domestic violence who need help and support from housing authorities in escaping serious violence. Young people groomed and exploited by criminal gangs also need and deserve to be urgently rehoused in certain circumstances, as the noble Lord, Lord Young of Cookham, so clearly set out.
Again, this needs to be a truly multiagency approach to reducing serious violence and not a police-led enforcement approach. The police need to provide information to housing authorities where they believe that someone is being coerced into criminal activity and is threatened with serious violence if they do not comply, and that taking that person out of that scenario by rehousing them can reduce the risk of serious violence.
I repeat that option 2 of the Government’s consultation on the serious violence duty is the best option and the one preferred by the greatest proportion of respondents to the Government’s own consultation—that of enhancing existing crime and disorder partnerships. These are the existing and well-established mechanism, where local authorities and police forces work together to prevent and tackle crime and disorder and where the local police chief and the local authority chief executive are equal partners in doing whatever each partner and others can do to reduce crime and disorder.
Baroness Williams of Trafford (Con)
My Lords, I am most grateful to my noble friend Lord Young of Cookham for setting out the case for these amendments. I fully agree with him that local authorities and housing associations are able to make a significant contribution to local efforts to prevent and reduce serious violence.
In light of the fact that local authorities have responsibility for delivering services such as housing and community safety in local areas, we expect that such services will be a crucial part of the contribution that they make to the partnership arrangements, as they participate in the preparation and implementation of the serious violence strategy. We believe that they are therefore well placed to provide that strategic overview of, and information about, housing issues in the local area.
The statutory guidance for the serious violence duty, which has been published in draft and to which we have referred a few times this evening, highlights such duties and emphasises their relevance, as part of the work to meet the requirements of the serious violence duty. We do not think that it is necessary to explicitly state in the Bill that local authorities must have due regard to their housing duties as they fulfil the requirements of this duty because there will be a requirement for them to have due regard to the statutory guidance in any case.
Furthermore, current legislation already provides for those in most need to be prioritised for social housing, and statutory guidance makes it clear that local authorities should consider giving priority to those who require urgent rehousing as a result of domestic abuse and other types of violence. We will continue to work with the relevant sectors to ensure that the statutory guidance is clear on this point, ahead of a public consultation following Royal Assent and prior to the serious violence duty provisions coming into effect.
But, of course, we must do all that we can to identify and provide support to the individuals who are most at risk of involvement in serious violence, including those occupying social housing or who may be at risk of homelessness. But including registered providers of social housing within the provisions for the serious violence duty will not be necessary to achieve this.
As part of the work to prevent and reduce serious violence, specified authorities in a local area will be required to work together to identify the kinds and causes of serious violence and, in doing so, establish the groups of individuals who are most at risk in a local area.
Legislation already sets out that, when a local housing authority makes such a request, a private registered provider of social housing or a registered social landlord shall co-operate to such extent as is reasonable in the circumstances in offering accommodation to people with priority under the authority’s allocation scheme. This includes properties provided to those in priority need, including those with urgent housing needs, as a result of violence or threats of violence. Statutory guidance on allocations issues earlier this year, to which local authorities may pay due regard, makes this clear. It is also worth noting that the Tenancy Standard, issued by the Regulator of Social Housing, contains specific provision to ensure that private registered providers of social housing co-operate with local authorities’ strategic housing function.
Those who are at risk of violence should already receive support, if they need social housing and/or homelessness assistance, but local authorities must be able to respond to their strategic housing function and individual needs on a case-by-case basis. There is a risk that these amendments would inadvertently undermine the work of specified authorities to establish the most prevalent crime types and cohorts most at risk by mandating that a particular group falls under this category.
Furthermore, we must make sure that the duties placed on registered providers and local housing authorities are proportionate, bearing in mind both their size—there are, after all, 1,400 private registered providers of social housing in England, some of which are very small, and 165 local authorities that are social landlords—and the extent of their direct levers to deal with serious violence. They may therefore have limited direct capabilities, if any, to help to identify or prevent serious violence in the area. This is particularly true of small communities with reduced capacity and resources. The duties would therefore impose a material and unresourced burden.
We must also bear in mind the risk that social tenants may be inadvertently stigmatised as at risk of serious violence. Stigma was a key theme to emerge from the social housing Green Paper consultation exercise, and we must therefore be particularly careful not to further this perception and feeling.
I turn to Amendment 51. It is vital that all victims of serious violence who need to leave their home in order to escape violence are supported to access safe and secure alternative accommodation. It may be helpful for noble Lords if I explain how the existing provisions in homelessness legislation apply in relation to victims of violence.
A household is considered to be homeless if it would not be reasonable for them to continue to occupy their accommodation. Section 177 of the Housing Act is clear that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic abuse or other violence against that person or another member of their household. This means that victims of violence or of threats of violence that are likely to be carried out, who need to move because it is not safe for them to remain where they are currently living, are able to access support from council homelessness services. Furthermore, if a housing authority has a reason to believe that a person is homeless, eligible for assistance and has a priority need, Section 188(1) of the Housing Act requires the housing authority to provide interim accommodation while it carries out further investigations.
If homelessness is not successfully prevented or relieved, a housing authority will owe the main housing duty to applicants who are eligible, have a priority need for accommodation and are not homeless intentionally. Households containing dependent children have priority need, as in the examples raised by the noble Baroness, Lady Blake of Leeds, relating to gang-related violence, which was mentioned also by the noble Baroness, Lady Bakewell, and the noble Lord, Lord Paddick.
In addition, a person might be assessed as having priority need if they are considered significantly more vulnerable than an ordinary person would be if they became homeless as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence that are likely to be carried out. Homelessness legislation therefore already makes provision for victims of serious violence to receive support to access alternative accommodation.
Many local housing authorities already work with the police and other partners to reduce the risk of serious violence, including through the provision of alternative accommodation. Where this works well, it is clear that it is very important that services such as youth offending teams, educational authorities and the National Probation Service work together locally to provide support for the household and the victim of violence. Housing alone without that support is clearly not a sustainable option. The new serious violence duty will facilitate this and is intended to generate better partnership working locally to further protect this cohort.
The draft guidance is clear that local authorities are responsible for the delivery of a range of vital services for people and businesses in a local area, including but not limited to children’s and adult’s social care, schools, housing and planning, youth services and community safety, so they will have an essential role to play in partnership arrangements. The inclusion of this detail in the guidance for the new duty, alongside the existing homelessness legislation and guidance, is the most effective way of supporting victims of serious and gang-related violence to relocate and start afresh.
While it is so important that those at risk of serious violence who are homeless or are at risk of homelessness are supported to find an accommodation solution that meets their needs and reflects their individual circumstances, we do not think it is right to extend automatic priority need to other victims of serious violence that is not domestic abuse. While the violence or threat of violence may be present in their community, it does not usually take place in the home itself.
We think that the current legislative framework and accompanying statutory homelessness code of guidance, combined with the statutory guidance on social housing allocations, strikes the right balance as it considers the vulnerability of the applicant on a case-by-case basis and is the most appropriate means of determining priority for accommodation secured by the local authority. This approach ensures sufficient provision for homeless victims of serious violence who are vulnerable as a result of that violence, while also ensuring that finite resources, including temporary accommodation, are prioritised effectively and accommodation is there for those most in need.
The second part of Amendment 51 seeks to place a duty on the Secretary of State to
“issue a code of practice”
covering Section 177 of the Housing Act. I say to my noble friend at this point that the statutory homelessness code of guidance already provides such guidance for housing authorities when a person at risk of violence or the threat of violence approaches a local authority in housing need. The statutory guidance on social housing allocations also makes it clear that local housing authorities should consider giving preference to such persons.
Lord Paddick (LD)
My Lords, can I ask the Minister to clarify something? I think the noble Baroness said that this additional duty was not necessary, as it was with domestic violence, because the violence does not happen in the home. In the example I gave, where a drug dealer owed money harasses and threatens a family to get their money back, surely you could say that that violence is happening on the doorstep, or perhaps inside the home if the drug dealer breaks the door down. Surely there is a need in those circumstances for that family to be rehoused to reduce serious violence and get them out of the way in a similar way to a victim of domestic violence.
Baroness Williams of Trafford (Con)
I think what I said to the House was that households containing dependent children have a priority need and that a person may be assessed as having priority need if they were considered to be significantly more vulnerable than an ordinary person would be if they became homeless as a result of ceasing to occupy accommodation by reason of violence from another person or threats of violence that are likely to be carried out. In terms of domestic abuse, it is widely acknowledged that domestic abuse crimes are committed inside the home, out of the view of the public, by household members. The changes made to the Domestic Abuse Act to extend priority need to people who are homeless as a result of being a victim of domestic abuse reflected that.
Baroness Blake of Leeds (Lab)
The Minister is setting great store by the guidance that is going to come forward. Can I ask her for reassurance that there will be adequate opportunity for those working on the ground to put across the point of view of the reality of dealing with families in some of the most distressing circumstances we could possibly imagine?
Baroness Williams of Trafford (Con)
Certainly, I completely concur with the noble Baroness and there will be ample opportunity to look at the draft guidance as well.
Lord Young of Cookham (Con)
My Lords, I am grateful to all those who have taken part in this debate, beginning with my co-pilot, the noble Baroness, Lady Blake, who made the point that this is all about prevention and early intervention, and housing is absolutely crucial if we are to achieve that. She mentioned the broad support for this group of amendments from organisations such as Shelter and Crisis and made the point that this is simply building on existing provisions and extending what is already the case for domestic violence to gang-related violence—I will come back to that point in a moment. The thrust of the amendment to which she spoke was to embed best practice in statutory guidance; she mentioned the tragic case of the child Chris.
I am grateful to the noble Lord, Lord Carlile, who referred to the work of Mr Houlder on knife crime—the scourge of many housing estates—and also referred to the Edlington case, which he mentioned in an earlier debate. That underlined the point that there can sometimes be fatal consequences if there is inadequate consultation between the housing authorities and police authorities—a point that was underlined later in the debate by the noble Lord, Lord Bach. I am grateful to the noble Baroness, Lady Bakewell, for her support; she made the point that there is a potential resource implication behind these amendments if they are to be fully effective. Again, the experience of the noble Lord, Lord Bach, as a police and crime commissioner was of real value to the debate; he emphasised the importance of strengthening the link between housing and the police.
I am grateful to the noble Lord, Lord Paddick, who expressed concern that the Bill was too focused on a police-led initiative. The impact of these amendments will be to broaden the base by including housing; other amendments later on will also help broaden the base. He was anxious that this should not be entirely police-led.
I am grateful to the Minister for a thoughtful, sympathetic and comprehensive response to the debate, informed by her experience as a council leader in the north-west but also by her time as a Minister in what was then the Ministry of Housing, Communities and Local Government, now the Department for Levelling Up, Housing and Communities—he said with some hesitation. She made the point that she expected housing authorities to participate—they were well placed to do so—and referred on many occasions to statutory guidance. The concern that I have, and some other noble Lords may have, is that there is a gap between statutory guidance and what actually happens on the ground; hence the case for legislation to make it clear that this is not just guidance, there is an obligation so to do.
I recall listening to exactly the same arguments we have heard this evening in resisting what became the Domestic Abuse Act, which gave a statutory right to be rehoused to those suffering from domestic violence. Previously, the argument was, “There are adequate powers for local authorities to do this under the housing legislation.” However, we have now taken the step forward and put it in the Domestic Abuse Act, and this will build on that precedent and extend it to gang violence. I am concerned by the gap between theory and practice, and this would embed best practice in legislation.
Having said that, as I said, my noble friend gave a thorough response which I want to reflect on, together with the contributions of other noble Lords who have taken part in this debate, and in the meantime, I beg leave to withdraw the amendment.