Health and Care Bill

Debate between Lord Hunt of Kings Heath and Baroness Chisholm of Owlpen

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

[Baroness Chisholm of Owlpen (Con)]

My Lords, I am grateful to the noble Lord, Lord Hunt, particularly for his brief and, as always when he speaks, his clear understanding of the amendment. It makes it so much easier for us to know where the noble Lord is coming from.

I am grateful to all other noble Lords who spoke on this issue, and I understand the interest in the integrated care boards’ power to disclose information that is personal data. As the noble Lord, Lord Hunt, mentioned, public trust is essential in this and individuals’ data will be used lawfully and with respect, and held securely with the right safeguards in place. It will need to be proportionate, transparent and subject to individuals’ rights to access and correct information in use.

Let me further explain how we will make sure this happens. I assure noble Lords that the clause already restricts integrated care boards’ powers to disclose information by limiting these to the specific circumstances set out in the clause. Further, all use of personal data is subject to data protection legislation, including the UK general data protection regulation and the Data Protection Act 2018. This legislation provides several key protections and safeguards for the use of an individual’s data, including strict rules and key data-protection principles for the sharing of personal data.

Under the UK GDPR, health data has to be treated as a special category. This data requires additional protections due to its obvious sensitivity. For this type of data to be lawfully processed, a further condition must be met, in addition to identifying a lawful basis, as set out in the GDPR and the Data Protection Act.

This data protection legislation applies to the use of all personal data and provides robust safeguards in relation to information and disclosure. Importantly, there are additional protections on the use of health data, including the common-law duty of confidentiality, along with the role of the National Data Guardian, who advises and challenges the health and care system to help ensure that the public’s confidential information is safeguarded securely and used properly. As the noble Lord, Lord Hunt, mentioned, there are also the Caldicott principles; there are seven of these, which I am sure noble Lords are aware of, so I will not go through them all now. They provide guidance to health and care organisations on the use of confidential information. Along with this, there is also the national data opt-out.

I remind the Committee that new Section 14Z61 will apply, which provides when an ICB may disclose information obtained by it in the exercising of its functions. I emphasise that maintaining trust that healthcare data is being used properly is paramount. Individuals’ data will be used lawfully and with respect, held securely and have the right safeguards in place. None of the changes we are making will remove the duties of organisations to comply with the requirement of data protection legislation. Along with that, we are working with the Home Office to ensure that the protection and confidentiality of patient information is upheld within the Police, Crime, Sentencing and Courts Bill. Appropriate safeguards are in place and the Bill makes it clear that information can be shared only in accordance with data protection laws.

I am concerned that this amendment could cut across the different pieces of relevant legislation, preventing the ICB from effectively discharging its functions where it may be necessary to disclose information, which may include personal patient data. This would include investigating complaints, making safeguarding referrals for patients whose welfare is at risk, complying with court orders and assisting criminal investigations. It would also risk a confusing data-sharing system, with different rules applying to different organisations.

I know that my noble friend the Minister, the noble Lord, Lord Kamall, has agreed to talk about this further with the noble Lords, Lord Hunt and Lord Clement-Jones. He wants to meet civil liberties organisations, along with them, to discuss this subject further. However, I regret that the Government cannot accept this amendment. I hope that I have given the noble Lord some reassurance and that he will feel able to withdraw the amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am of course grateful to the noble Baroness but I am not sure that she has entirely dealt with the concerns expressed. Because the noble Baroness, Lady Brinton, referred a lot to the GMC, I should just say that, although I am a member of its board, I am not acting here on behalf of the GMC at all.

The noble Lord, Lord Clement-Jones, and I signed the amendment and we both start from the basis of supporting digital transformation in the NHS, but we have always seen that it has to go hand in hand with the safeguards. That is why this debate is so important. We have heard powerful interventions from the noble Baronesses, Lady Brinton and Lady Harris, about why the police Bill had to be amended in relation to police access to patient information. The noble Baroness, Lady Finlay, referred to the issues for clinicians if they did not feel that the integrity of the patient confidentiality system was sufficiently safeguarded.

The Minister has basically said that we need not worry, because the NHS will only deal with information lawfully, and she went through some of the protections, including the fact that in the Bill there are conditions before the integrated care board can release the information. She referred to the data protection legislation, the GDPR, the special category given to health data about patients and the Caldicott principles. She went on to say essentially that my amendment would cause problems, because it would get in the way of legitimate information being given by the ICB, which might have an impact on patient care quality.