Police, Crime, Sentencing and Courts Bill

Baroness Williams of Trafford 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.

[Baroness Chakrabarti (Lab)]

Before—

[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.

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to the list of those who have a priority need for accommodation under the Housing Act 1989, if the provision would reduce or prevent the risk of that person becoming a victim of serious violence. My noble friend Lady Bakewell of Hardington Mandeville quite rightly raised the issue of funding for local authorities to enable them to fulfil this vital duty.

[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.

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[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.