Health and Care Bill

Lord Clement-Jones Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

This Bill proposes giving police those powers for any criminal investigation. It is absolutely wrong. I refer your Lordships to recent police cases of sexual assault, where we know they have also trawled victims’ telephones and computer data for any information they can find. Would these clauses allow similar fishing expeditions on their private and confidential medical data? Would they also apply to those who might be loosely associated with potential criminals? What about family members? Is it intended that their data be similarly trawled? Where does this end? This entire clause breaches an individual’s right to their medical data being kept confidential, other than in exceptional circumstances. It removes the power from the individual’s GP to make such a decision in exceptional circumstances. Worse, it enables commissioning staff and directors at an ICB to be required to hand over data to the police without the knowledge of the GP. It is totally unacceptable, and I entirely support this amendment.

[Lord Clement-Jones (LD)]

My Lords, I support the amendment in the name of the noble Lord, Lord Hunt, to which I have added my name. He is not the only one to be concerned about this part of the Bill. My noble friends Lady Brinton and Lady Harris have delivered powerful support and a demonstration of why we have to be absolutely vigilant about access to, and sharing of, personal data, as they were so successfully on the police Bill. We must not repeat those experiences.

We will talk further and more comprehensively about data later in Committee. In the meantime, Amendment 145, as the noble Lord, Lord Hunt, explained, tries to illicit from Government their intention behind these disclosure powers for ICBs in new Section 14Z61 in Clause 20 with regard to information, whether personal data is involved and what the safeguards are. New Section 14Z61 sets out the provisions whereby

“An integrated care board may disclose information obtained by it”


in the exercise of its power. As the noble Lord, Lord Hunt, said, the catch-all condition in new Section 14Z61(1)(f) under which disclosure can be made

“for the purposes of facilitating the exercise of any of the integrated board’s functions”

seems remarkably open-ended. My noble friends have also pointed out the sheer width of paragraphs (e), (g) and (h), which go even further than those originally proposed in the police Bill and raise crucial questions for the Minister to answer.

Amendment 145 aims to ensure that an ICB cannot disclose information where this is patients’ personal data. In my last intervention on the group headed by Amendment 26, I, like the noble Lord, Lord Hunt, expressed my support for the NHS’s digital transformation programme. It is clear, as the noble Lord says, that there is great potential growth in new technologies using data such as AI and machine learning. However, there is an absolute imperative to have the right safeguards in place in relation to duties and data. This is very much aligned with transparency in public information and engagement, particularly in this context. Transparency, choice and consent are crucial, as the noble Lord, Lord Hunt, says.

We have all looked forward to the Goldacre review, but I am not convinced that it will range wide enough and cover the governance arrangements needed to preserve and enhance public trust in the sharing and use of health data, but we will see. I look forward to the debate towards the end of Committee when we discuss the wider aspects of the Bill, when we will produce further illustrations of the rather cavalier way in which the Government, the department and the NHS have treated personal data. Not least of these is what has been called the attempted GP data grab of last year. In the meantime, I hope the Minister will be able to give assurances that the powers in Section 14Z61 will be very limited.

[Baroness Finlay of Llandaff (CB)]

My Lords, from the perspective of a clinician, I support this amendment very strongly. If it is not adopted, I can see it being imperative, in any doctor’s consultation, to warn the patient that their data could be accessible and to be very careful about what is recorded in the clinical record. Very often, patients come to see a doctor, possibly at a very early stage of slightly disordered thinking or because they have undertaken a potentially high-risk activity, often in the sexual domain, and are worried that they may have contracted some condition or other. If you inhibit that ability to see a doctor early, you will further drive people into whatever condition is beginning to emerge, so it will not be known about until later. That applies particularly in mental health, where early intervention might prevent a condition from escalating.

I can see that, without an amendment such as the one proposed by the noble Lord, Lord Hunt of Kings Heath, every clinical consultation will have to be conducted with extreme caution, because of potential access to data.