Data Protection Bill [HL]

Lord Kakkar Excerpts

Monday 6th November 2017 Lords Chamber

[The Earl of Kinnoull (CB)]

I speak to Amendment 25A and declare my interests as set out in the register, particularly those in respect of the insurance industry. I thank the noble Lord, Lord Kennedy of Southwark, for a clear introduction to his thinking. I am also looking forward to hearing what the Minister says later on.

Amendment 25A is essentially a probing amendment relating to another problem of unintended consequences of the Bill’s far-reaching provisions. The impact assessment, in its section entitled “policy objectives and intended effects”, talks of setting new standards in accordance with the GDPR,

“whilst preserving existing tailored exemptions from the Data Protection Act”.

Later on, the assessment talks about ensuring that,

“the burden on business is kept minimal”.

Amendment 25A is designed to avert just such an unintended consequence which, although small in words, would be substantial in effect for insurers and therefore affect people who want to take out policies. Without this amendment, the Bill would affect insurers’ ability to process data in relation to obligations in connection with employment law. In short, they will have to redesign all their processes in what is a substantial and important area. The amendment changes the wording back to that in paragraph 2(1) of Schedule 3 to the Data Protection Act 1998, so that insurers can continue to use existing procedures. It is entirely consistent with the GDPR, in particular with article 9(2)(b), which is the bit which affects this and calls for safeguards. I can think of no better watchdogs than the Information Commissioner’s Office and the FCA. I therefore feel that this amendment should be uncontroversial and look forward to hearing the Minister’s reasoning on it. I would welcome discussions outside the Chamber should he want further detail.

[Lord Kakkar (CB)]

My Lords, I support Amendment 108A and remind noble Lords of my entry in the register regarding my duties as a doctor and medical researcher.

The overriding duty in common law to protect medical confidentiality is vital to contemporary clinical practice. There are considerable concerns that Clause 15 might provide an opportunity for that duty to be overridden through the application of future regulations. It is important for Her Majesty’s Government to establish that that is not possible and could not be the case in the future. The provisions in common law regarding medical confidentiality provide further safeguards for healthcare data beyond those provided in current data protection regulation and statute. It would be a retrograde step if provision were made that destroyed those safeguards. That might be manifested in a greater reluctance for individual patients to share their confidential information with healthcare professionals. This may result in a poorer ability for the public interest to be satisfied and safeguarded in terms of collecting data on important public health issues. It may also result in greater reluctance for individuals to participate in medical research or to provide their data for fear that it may be shared in the wrong way. Can the Minister provide reassurance that the application of Clause 15, as drafted, would not result in undermining this common law duty, and therefore have serious unintended consequences in the future? If Her Majesty’s Government are not able to provide that reassurance, how would they go about dealing with Clause 15? Would they include in the Bill a measure such as that proposed in Amendment 108A, or what other mechanism would they provide to ensure that this vital common law duty is in no way affected in the future?

[Lord Lucas (Con)]

My Lords, I offer a slight contrast to that. I hope that this clause will help with a couple of sorts of problems that I have come across over the last 20 or 30 years. One concerns children at university who become suicidal and their parents are never told because everybody believes they have a duty of confidentiality and cannot communicate with the parents. A friend of mine got very close to going over the edge but fortunately one of his friends told his parents and then everything got sorted out. Suddenly regarding parents as aliens when someone is 18 and in severe psychological difficulty is an uncomfortable effect of the way that current regulations are perceived. I hope that this provision might loosen things up.

Another aspect is dealing with schoolchildren with eating disorders. Many aspects of eating disorders present as social interactions with other children. However, if there is an absolute prohibition on discussing someone’s condition with other children, even the children who share a bedroom with them in boarding school, that seems to me destructive of the interests of the child. Therefore, I would like to see—and I hoped that I was seeing—a slight broadening of the current regulations which might lead to arrangements which allowed the best interests of the patient to come into effect rather than a strict adherence to the dogma of, “We can’t tell anybody”.