Data Protection Bill [HL]

Lord Lucas Excerpts

Monday 6th November 2017 Lords Chamber

[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”.

[Lord Lester of Herne Hill]

My Lords, the Minister rightly signed on the face of the Bill his statement of its compatibility with the European Convention on Human Rights. I wonder whether the answer to the question of the noble Lord, Lord Kakkar, is not provided by the Human Rights Act itself, which says that all legislation, old and new, must be read—and given effect, if possible—compatibly with the convention rights. One of those convention rights is the right to privacy. The right to privacy embraces the equitable duty of confidentiality referred to by the noble Lord, Lord Kakkar. Therefore, the reassurance is given by the Human Rights Act rather than by anything else. The relevant provisions of this Bill would have to be read compatibly with that. However, I may be speaking out of turn.

[Lord Patel (CB)]

My Lords, if I have understood the noble Lord, Lord Lucas, wrongly, I am sure that he will correct me. However, the impression he gave was that the confidentiality between a doctor and a patient forbids the doctor to inform a family member if the patient is likely to suffer harm, even self-inflicted harm. That is not the case. The doctor is bound to respect confidentiality, but if that is likely to result in not informing the family of the harm that may be caused to a patient, or distress to the family, it is not true that confidentiality will still hold.

[Lord Lucas]

My Lords, I am glad to know that. I have not dealt directly with a doctor on this at all but rather with university and school authorities. In those cases—not steadily and not, thank goodness, frequently—I have encountered a complete unwillingness to risk telling anybody anything for reasons of confidentiality. I hope that principle is misunderstood, but this certainly happens. In cases where there is a very clear principle of confidentiality, the circumstances under which it can reasonably be interpreted as being in the best interests of the patient to breach it need to be better understood by people who are not medically trained so that they feel confident in passing the information back. I am not trying to create law in an extremely difficult area. I hoped that the Bill might lead over time to universities feeling that parents were part of the solution, and to schools feeling that other children were part of the solution, and feeling confident that guidelines had been evolved which allowed them to seek support for these children beyond just their own tight resources. I am delighted to hear what the noble Lord said but that is not what gets through once it has been through the filter of university, at least on the occasions that I have dealt with it. I probably see the cases that go wrong. If something has worked out right, there is no reason why it should come to me.

--- Later in debate ---

[Lord Ashton of Hyde]

I said that we believe that the term is sufficiently broad to cover processing that would have been permitted hitherto, which the noble Earl refers to. However, of course, if we have got it wrong and if the insurance industry has a point it wants to bring up, it would be sensible, and I would be delighted, to meet him and the industry to discuss that. As I said before, we have an open mind, so I will certainly do that.

On the provisions in paragraphs 2 and 3 of Schedule 1 on health and social care, and public health, respectively, which are the focus of Amendments 27 to 29, it is fair to say that the drafting here has moved on slightly from the approach taken in Schedule 3 to the 1998 Act. However, article 9(2)(h) of the GDPR refers specifically to processing which is necessary for,

“the assessment of the working capacity of an employee”,

and,

“the management of health … care systems”.

Article 9(2)(i) refers specifically to processing which is,

“necessary for reasons of public interest in the area of public health”.

The purpose of paragraphs 2 and 3 of Schedule 1 is to give these GDPR provisions legislative effect. To remove these terms from the clause by virtue of Amendments 27 to 29 would mean that healthcare providers might have no lawful basis to process special categories of data for such purposes after 25 May. I am sure that noble Lords would agree that that would be unwelcome.

The noble Lord, Lord Kennedy, asked some questions on paragraph 2 and asked for an example of data processed under paragraph 2(b). An example would be occupational health. The wording of paragraph 2(2)(f) of Schedule 1 is imported from article 9(2)(h), and I refer the noble Lord—I am sure that he has remembered it—to the exposition given in recital 53.

Paragraph 4—the focus of Amendments 32 to 34—provides for the processing of special categories of data for purposes relating to archiving and research. The outcome of these amendments would be to name specific areas of research and types of records. The terms “scientific research” and “archiving” cover a wide range of activities. Recital 157 to the GDPR specifically refers to “social science” in the context of scientific research, and recital 159 makes it clear that,

“scientific research purposes should be interpreted in a broad manner including for example technological development and demonstration, fundamental research, applied research and privately funded research”.

The Government are not aware of anything in the GDPR or the Bill which casts doubt on the application of these terms to social science research or digital archiving.

Finally, on the important issue of confidentiality, Amendments 31 and 70 are unnecessary, because all health professionals are subject to the common-law duty of confidentiality. The duty is generally understood to mean that, if information is given in circumstances where it is expected that a duty of confidence applies, that information cannot normally be disclosed without the information provider’s consent. However, beyond relying on the common-law duty of confidentiality, health professionals and social work professionals are bound by the requirements in their employee contract to uphold rules on confidentiality, whether that information is held on paper, computer, visually or audio recorded, or even held in the memory of the professional. Health professionals and social work professionals as defined in Clause 183 are all regulated professionals.

I can therefore reassure the noble Lord, Lord Kakkar—I am also grateful to the noble Lord, Lord Lester, for his support with regard to the Human Rights Act—that the Government strongly agree on the importance of the common-law duty of medical confidentiality but also recognise that it is not absolute. For example, there already are, and will continue to be, instances where disclosure of personal data by a medical professional is necessary for important public interest purposes, such as certain crime prevention purposes or pursuant to a court order. I therefore cannot agree to Amendment 108A, although, as we have already said, the Government are committed to looking at the issue of delegated powers in the round. I will certainly include that in that discussion. Therefore, with that reassurance, I ask the noble Lord to withdraw his amendment.

[Lord Lucas]

My Lords, might I beg a meeting of the Minister to discuss the matter of suicidal students at university and how that will be handled under the new legislation as it is developed? This need not necessarily fit within the timescale of the Bill, but I would very much like to be able to understand policy on it and to involve universities in moving from the current unsatisfactory position.

[Lord Ashton of Hyde]

It is always a pleasure to meet my noble friend, and I am happy to do that.