§ Mr. WaddingtonI beg to move amendment No. 3, in page 3, line 20, at end insert—
'(5) An order under subsection (3) above modifying the third data protection principle may, to such extent as the Secretary of State thinks appropriate, exclude or modify in relation to that principle any exemption from the non-disclosure provisions which is contained in Part IV of this Act; and the exemptions from those provisions contained in that Part shall accordingly have effect subject to any order made by virtue of this subsection.'.The words "health data" do not appear in the amendment, but they are what the amendment is about. Health data — that is, information about a person's physical or mental health—fall into what we all regard as a particularly sensitive category of personal data. Earlier I quoted the words used by the hon. Member for Knowsley, North (Mr. Kilroy-Silk). He recognised that such data fall into a "special, peculiar and different" category. He said that personal health information was
potentially perhaps more embarrassing and it may also be more damaging."—[Official Report, Standing Committee H, 5 April 1984; c. 684.]Both the Council of Europe convention on data protection and the Bill itself already recognise that certain categories of data are of such a nature that they may require special protection. These categories of data include health data as well as data about a person's racial origin, his political opinions or religious beliefs and his criminal convictions.
Data about a person's physical or mental health have given rise to most concern. The health professionals, represented by an inter-professional working group chaired by Sir Douglas Black, have argued strongly that it is particularly important that special safeguards should be introduced to regulate the circumstances in which health data may be disclosed without the consent of a patient. They are concerned that without special safeguards the confidence and trust which exist between a patient and the health professional treating him will be seriously undermined. We understand that concern. It is, of course, of the utmost importance that the patients should be able to confide in health professionals secure in the knowledge that the information which they give will be properly safeguarded and will not be passed to all and sundry. Arrangements already exist within the National Health Service to ensure the protection of medical confidentiality.
The fundamental principle is that health data are not disclosed without the consent of a patient except in certain limited circumstances—for example, where disclosure is made for the purpose of preventing a risk to public health, or where the information is sought by the police in connection with the investigation of an offence. In these cases, special arrangements exist which require the disclosure to be authorised by the responsible professional.
The Bill, of course, does not undermine these existing arrangements, but the health professionals have argued that the Bill gives us the opportunity to put the informal arrangements on to a statutory footing. My right hon. Friend the Secretary of State for Health and Social Services agreed earlier this year to consider a direction to health authorities under the National Health Service Act 218 1977 requiring them to comply with a code of guidance. Such a code is being prepared in consultation with the inter-professional working group. It will embody the existing arrangements which I have just mentioned. But, of course, a direction made under the National Health Service Act can apply only within the National Health Service. To ensure that similar arrangements may be made outside the NHS, wherever health data are held, I move this amendment.
As I have said, the Bill, following the Council of Europe convention, already recognises that health data are in a special category. Clause 2 therefore provides a power for the Secretary of State to make an order modifying or supplementing the data protection principles to provide additional safeguards in relation to such data. This power would, therefore, allow an order to be made modifying the third principle as it applies to health data and imposing certain restrictions on disclosures of such data. But that alone would not be enough to meet the concerns of the health professionals since the Bill is constructed in such a way that the exemptions which it provides from the non-disclosure provisions would, in effect, take precedence over any such order under clause 2.
In other words, even though an order might say that to ensure compliance with the third principle a user must obtain the consent of a health professional before disclosing data to, say, the police, a user who had not registered the police as a recipient of data could nevertheless disclose the data without first obtaining a professional's consent, because clause 28(2) provides an exemption from any of the registrar's powers to enforce the third principle, whether or not that principle has been modified. It is, therefore, to overcome that difficulty that I move the amendment.
Quite simply, the amendment ensures that any order modifying the third principle may also modify the application of any of the exemptions from the non-disclosure provisions. If the amendment is accepted, we will have available to us the means of regulating the disclosure of health data. It is the Government's intention that that power should be used to impose upon data users who hold personal health data restrictions on the circumstances under which they may disclose such data. It will be necessary to conduct detailed consultations before the precise contents of such an order can be settled, but clearly it will follow very closely the code of guidance being prepared by the Department of Health and Social Security in consultation with the health professions. It may, however, be necessary to make some modifications to take account of the different circumstances that prevail in areas outside the National Health Service. The fundamental principles embodied in the code are, however, likely to be applicable in all situations. In particular, provision will be made to ensure that health data are not disclosed to the police except in cases where the seriousness of the offence in question is such that the public interest must prevail over the subject's right to confidentiality. It goes without saying, of course, that there will be close liaison with the health professionals during preparation of an order.
As I have already said, the whole issue has given rise to some rather extravagant and misleading claims. The Bill, which introduces entirely new safeguards for the protection of personal data, has been represented in some quarters as in some way diminishing the rights of data subjects by reducing the protection afforded to data about 219 their physical or mental health. That is nonsense. There is no way in which the Bill could ever have had that effect. Its whole purpose and effect is to improve the rights of data subjects, and I believe that it will achieve that purpose. We are, however, taking the opportunity of the Bill to provide that health data, because of their very special nature, are given even greater protection than other less sensitive categories of data. I hope that on that basis the House will welcome the amendment.
§ Mr. Denis HowellI found the Minister's speech remarkable. His interesting dissertion implied that he was about to make a concession that he and his colleagues think wholly unnecessary. He said that information about mental or physical health was adequately protected and that all the fears that have been expressed were unfounded — but, nevertheless, he was taking the opportunity to write the amendment into the Bill.
§ Mr. WaddingtonI must correct the right hon. Gentleman. I said that the story—which he must have heard — was that in some way the Bill would detract from the existing protection for citizens on the confidentiality of their medical information. That is nonsense. However, that is no reason why we should not listen to representations by the health professionals, who asked us to increase the protection presently given on health data. That is what we are doing. The Bill does not detract from the existing protection, but we are taking the opportunity to increase that protection. I am sure that that will please the right hon. Gentleman.
§ Mr. HowellIt pleases me enormously. If that is what the Minister thinks he is doing, I support it. However, it is not what the entire medical profession thought would happen — which is why it mounted an extraordinary lobby and made representations to both Ministers and Opposition spokesmen day in and day out. While the extraordinary discussions were taking place between the BMA and the DHSS, every now and again we heard bits of gossip or gained pieces of information which we put together. However, this is a genial occasion, so I shall not take issue with the Minister, and I know that he does not wish to take issue with me. We are sorry that the same considerations have not been applied to the social services as have been applied to the medical profession. However, we welcome the amendment.
I wish to make one point which the Minister may think frivolous, but it is not. I am concerned about the jargon used in the amendment. No ordinary citizen reading the amendment could possibly understand it. It states:
An order under subsection (3) above modifying the third data protection principle may, to such extent as the Secretary of State thinks appropriate, exclude or modify in relation to that principle any exemption from the non-disclosure provisions which is contained in Part IV of this Act; and the exemptions from those provisions contained in that Part shall accordingly have effect subject to any order made by virtue of this subsection.'.Any ordinary citizen buying a copy of the Act or reading it in the library will not have the faintest notion that it has anything to do with protecting health data. Indeed, the Minister conceded that in his remarks. I do not blame him for the jargon but why on earth cannot we write in plain English exactly what we are doing, which is protecting information about patients in the possession of doctors that should not be disclosed improperly? That is what we are doing, so why the devil cannot we say so in plain English?
§ Amendment agreed to.