Police, Crime, Sentencing and Courts Bill

Debate between Lord Carlile of Berriew and Lord Patel

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[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.

--- Later in debate ---

[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.