Police, Crime, Sentencing and Courts Bill

Lord Rosser Excerpts

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

[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.