RIGHT OF ACCESS

HC Deb 08 July 1988 vol 136 cc1334-52

Lords amendment: No. 1, in page 1, line 5, leave out Subject to the provisions of this Act

11.52 am

Mr. Deputy Speaker (Mr. Harold Walker)

With this it will be convenient to discuss Lords amendments Nos. 2 to 22, 24, and 26 to 30.

Mr. Archy Kirkwood (Roxburgh and Berwickshire)

I beg to move, That this House doth agree with the Lords in the said amendment.

I had the privilege to sponsor this Bill and I am pleased that we have now arrived at the final stage of its passage through Parliament. At every stage it has grown a bit, like Topsy. As the parliamentary process continued, it seemed inexorably to grow larger and larger. The Bill had a formal Second Reading and a short Committee and Report stage. Then it went to the other place where it was considered briefly but nevertheless in detail. I take this opportunity to pay tribute to my noble Friend Lord Tordoff for his patience, application and procedural skill when piloting the Bill through the other place.

The purpose of the Bill is to allow individuals access to medical reports that are made about them by their general practitioners when they apply for insurance policies or jobs. The new statutory rights are not revolutionary but they are important and significant. The Bill will not increase the administrative or bureaucratic procedures that employers or insurance companies will have to face, but it will give important rights to individuals and will correct wrongs. The detailed work that I carried out when preparing for this measure suggested to me that serious inaccuracies find their way on to medical files, that they follow people from the cradle to the grave and that they can be prejudicial when they apply for insurance policies or jobs.

Before the Bill left the House for the other place the Under-Secretary of State for Health and Social Security, the hon. Member for Derbyshire, South (Mrs. Currie) was kind enough, if that is the right way to put it, to say that she would arrange for parliamentary counsel to check that there were no technical deficiencies in the drafting of the Bill. Daunting as they may seem, the amendments are largely the result of that scrutiny.

I am pleased to say that the overwhelming majority of the amendments are designed to improve the language and structure of the Bill. Changes to the substance of the Bill are limited. Amendments Nos. 1 to 4 are to clause I. In the original Bill, clause 1 provided for a new right of access. Amendments Nos. 1 to 4 are purely drafting amendments. The bar on retrospective access is removed from clause 1 and is relocated elsewhere.

There are some changes to clause 2, the interpretation clause. Amendment No. 5 provides for a new term, "the applicant". That is a legal generic term covering the person or company who seeks the medical report—the employer or the insurance company. It enables the drafting of subsequent parts of the Bill to be that much tidier.

Amendment No. 6 is purely technical. Amendment No. 7 makes it clear that only medical reports produced by the doctor who is or who has been responsible for the patient's medical treatment are covered by the Bill. There was doubt about whether the Bill, as originally drafted, embraced other medical reports. I wish to make it clear that it does not. A report by an insurance company doctor who has never treated the individual and who is merely examining somebody on behalf of the insurer would not be covered. When the Bill was discussed here I said that it had always been my intention to make that clear distinction.

Amendment No. 8 widens the definition of "employment purposes." It gives a right of access to the self-employed who are providing their services under contract. That was always the intention of the Bill, as originally drafted, it did not make that clear.

Amendments Nos. 9 to 13 are technical in nature and merit no further discussion. Amendment No. 14 deals with an interesting and slightly arcane point that was identified in the other place. If a general practitioner, when preparing a report for an employer, believes that it is necessary to consult another doctor for a second opinion —for example, a consultant who is responsible for the patient's hospital care—I do not expect the general practitioner to have to write again to the patient informing him of his right of access because a second doctor is being consulted. As the Bill was originally drafted, the general practitioner might have had to do that so that he could be said to be beyond reproach. The amendment makes it clear that that is not the Bill's intention.

Lords amendments Nos. 15 to 18, redraft clauses 3 to 5 and 7, which are the guts of the Bill. They improve the structure of that part of the Bill and tighten up the language without making any substantial changes to the meaning. The employer or insurer will still have to obtain written consent before seeking a medical report and to inform the individual of his or her rights on access and correction.

If the patient expresses a wish to see the report, the doctor will be informed and must allow up to 21 days for the patient to make arrangements for access. The patient can ask for errors to be corrected, and, if the doctor does not agree, the patient is entitled to attach a statement of his or her views. After the person has seen the doctor's proposed report, the doctor has to obtain the person's consent to send it. That is a second consent contained in the Bill. The doctor would have to keep a copy of the report for at least six months after sending it and allow the individual access to it during that. period.

12 noon.

Lords amendments Nos. 19 to 21 delete the redrafted clauses dealing with consent, notification of rights, access before the supply of a report and the giving of access. Clause 6 deals with important classes of exemption. Lords amendments Nos. 22 and 24 are purely technical and we shall discuss Nos. 23 and 25 later. Lords amendment No. 26 makes it clear that, even if a report is deemed to be exempt from access, the individual does not lose his or her right to withdraw consent for it to be sent.

Lords amendment No. 27 deletes clause 7 and the provisions on the retention of medical reports. It deletes a previously redrafted clause. Clause 8 deals with applications to a court to give people sanctions if the Bill is ignored. Lords amendment No. 28 rephrases clause 8. It improves it but only semantically and linguistically.

Lords amendment No. 29 makes it clear that notifications made under the Bill shall be made in writing and can be sent by post. There was originally some doubt about that. Lords amendment No. 30 reintroduces the power of retrospective access, which was taken out of the original clause 1.

I hope that I have satisfied the House that, although the amendments are quite lengthy and numerous, an enormous amount of careful examination has been given to the Bill by parliamentary counsel and officials, and I am grateful for their efforts. We are all tempted to throw brickbats at parliamentary counsel. In the past, I have taken them to task for doing violence to the English language and making ordinary language very complicated, but now, having been involved with two private Member's Bills, I am persuaded that there is no alternative. To make points absolutely legally clear, the language has to be superficially abstruse and arcane. I am indebted to the Under-Secretary of State for her assistance and for making available the services of parliamentary counsel and officials. I am also grateful for her extremely sympathetic attitude throughout our discussions.

I know that we are not supposed to recognise those who sit under the Gallery and work hard in high places forth of the House, but I would like also to pay a heartfelt tribute to the senior civil servant, Mr. Campion, for his advice and willingness to help, despite the many other pressures on his time. If the Civil Service has any sense of justice in terms of promotion I am sure that he will go far.

The Parliamentary Under-Secretary of State for Health and Social Security (Mrs. Edwina Currie)

I congratulate the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) on getting his Bill this far. I join him in recognising the efforts of Lord Tordoff in the other place.

It would be wise if I started by thanking the hon. Gentleman, on behalf of Mr. Campion, for his very kind remarks about him. Mr. Campion is the official who was very much involved in drafting this Bill and the Community Health Councils (Access to Information) Bill, which has now passed all its stages and awaits Royal Assent.

It has been an interesting experience for me during this parliamentary Session to find that, of the handful of private Members Bills that are likely to receive Royal Assent, my Department has been involved with two.

I am sure that Mr. Campion and his colleagues will take carefully the advice about going far. I understand that Mr. Campion is going to the Bahamas, where he will manage the Princess Margaret hospital. I am sure that we all wish him well and will look forward to seeing him in another incarnation at some future point. I join in the tribute to parliamentary counsel and other officials.

The House will realise that if we were to ask parliamentary counsel to go through every Bill that is laid on the Table, they would do nothing else. Therefore, the promise that I made when the Bill was debated on Report and Third Reading was that if it was the will of Parliament that the Bill should at some stage proceed to the statute book, I would request parliamentary counsel to ensure that the Bill achieved the hon. Gentleman's objectives and was in a form which would enable it to operate satisfactorily and not cause undue difficulty.

Ms. Jo Richardson (Barking)

I have followed with great interest the hon. Lady's explanation about the massive rewriting of the Bill in the other place. I read in Hansard that she said that she would be a little reluctant to commit a great deal of officials' time until she saw whether the Bill would make progress. I cannot believe that she or others could have thought that the Bill would not make progress. It clearly was not blocked by the Government.

I should like to hear from the hon. Lady whether it would have been less wasteful of time for everyone—including the promoter of the Bill—if the work and the help that was offered subsequently, and that had to be put into effect in the other place, had been offered to the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) right at the beginning. Removal of clauses and insertion of new clauses just confuses everyone.

Mrs. Currie

If it was possible to tell at the beginning, when there might be more than 100 private Member's Bills and, of course, Bills in the other place as well—which one was likely to be successful or to proceed further, that would be a sensible course of action. However, it is entirely a matter for the House, especially on Bills such as this, on which the Government are neutral, whether the Bill will make progress. In that sense, I think that it would be more appropriate for the hon. Lady to express appreciation, as I understand her party is not against the Bill, and as it fits in with everybody's efforts to improve the role of the consumer in the development and delivery of health.

This is a subject which, broadly, has all-party approval. I am also sure that parliamentary counsel did not spend an enormous amount of time on the Bill. Whatever the details of the drafting are, it was fairly clear from discussions in this House and in the other place exactly what the objectives are, which makes life easier for parliamentary counsel.

The difficulty of trying to legislate on issues such as this is revealed by the problems that we have had, but we remain convinced that people should have greater access to what is written about them in their records generally. The Bill as amended is consistent with the talks that are taking place with the medical profession to achieve that on a wider basis.

As I mentioned on Report and Third Reading, the discussions that we have had on the Bill and the all-party support for it have helped considerably. I believe that attitudes to access to medical records have shifted quite considerably during the past couple of years. That is in no small part due to the hon. Gentleman. We do not seek to oppose the Bill and we are content with the amendments.

The first batch contains 28 amendments. Although I do not want to disagree with the presentation made by the Bill's sponsors, it might help if I give some idea of what we are up to—[Interruption.] Rather, what we think that the hon. Member for Roxburgh and Berwickshire is up to. We agree that what the amendments achieve does not affect the substance or objectives of the Bill. However, the amendments improve the Bill's overall structure so that the sponsors intentions may be presented in a more logical sequence. Some amendments have been made to the definitions section to deal with omissions and drafting infelicities.

The first batch of amendments amend clauses 1, 2, 6, 8 and 9. They omit clauses 3, 4, 5 and 7. For the sake of clarity, I am including amendments Nos. 23 and 25 which we will debate in more detail shortly. The amendments replace the omitted clauses so that the Bill is presented in a more structured and logical way. I must emphasise that the Government are completely neutral on the Bill. The Government would prefer not to legislate, especially as we prefer to do things on a voluntary basis whenever possible. The amendments demonstrate just how difficult it is to legislate properly. However, as the Bill is likely to reach the statute book, we have provided assistance and on that basis we feel that the amendments do exactly what they are proposed to do.

Amendments Nos. 1 to 4 affect clause 1. As originally drafted, the clause was considered by my Department to be defective in that it appeared to confer a widespread right of access to medical reports unless precluded by the subsequent provisions in the Bill. That may well have been the sponsors' original intention, but we felt that that was too wide for a Bill of this order to bear.

The amendments narrow the scope of clause I while preserving its effects. As we said earlier, the exclusion of reports prepared before the Bill is enacted will be transferred from clause 1to clause 9. That is a normal parliamentary convention.

Amendments Nos. 5 to 13 affect clause 2. They are important as they help us to define the term "applicant" —the insurer or employer introduced in the new clauses. It will therefore make it much easier to interpret the legislaton in future. The amendments are also important because they will help to carry forward the sponsors' objectives to widen the definition of employment purposes and amend the definition of insurance purposes so that it focuses on the individual referred to in the various provisions in the Bill.

If the Bill is written in such a way that its exact wording carries out the sponsors' objectives, there are likely to be fewer objections to it in use. In other words, it is likely to be effective. I hope that improving the definitions will be non-controversial. However, the overall effect of amendments Nos. 5 to 13 is to focus the Bill more on the individual whose rights are the cornerstone of the Bill. The remainder of the group are minor consequential drafting amendments.

We believe that amendment No. 14 to clause 2 is quite important. It will overcome a possible ambiguity in the clause as drafted. The amendment makes clear that only reports prepared by a practitioner for employers or insurers are covered. Lord Prys-Davies made the point in Committee that the clause could apply to reports sought by a practitioner from another, which is not the intention of the Bill, as the hon. Member for Roxburgh and Berwickshire explained. Therefore, it is wise to make it absolutely clear that transactions between doctors to enable a report to be prepared are not covered by this amendment. That is important and will help to reassure the medical profession.

Amendment No. 15 is also important. The new clause replaces a defective clause which will be removed later. It is at the heart of the Bill because it concerns Consent to applications for medical reports for employment or insurance purposes. The substitution of the new clause to replace clause 4 is primarily part of the need to draft the Bill in a more structured way. Clarification of the provisions has been made and the substance of the Bill remains unchanged. The new clause provides that in subsection (1) the applicant, whom we have now defined as the insurer or employer, must obtain the consent of the individual—whom we have defined as the person about whom the medical report is being prepared—to seek a medical report. As the hon. Member for Roxburgh and Berwickshire said, the applicant must notify the individual that he has a right to withhold consent for the report to be obtained and that he has a right to access and to withhold consent and to amend and modify the report. Without the new clause drafted in the tight way recommended by parliamentary counsel, the Bill might have presented some difficulties. We feel that these are important technical drafting improvements. If the House is mindful to pass the Bill, we believe that they should he accepted.

12.15 pm.

Amendment No. 16 substitutes clause 5 with a rewritten clause. It is, again, the result of improved drafting and does not affect the Bill's objectives. The details of the time scales within which the applicant, medical practitioner and the individual must act are strengthened in terms of seeking, supplying and having access to a medical report.

The hon. Member for Roxburgh and Berwickshire will remember that we had quite a long debate in Committee and on Report and discussions at the back of the Chair over this matter because there was some ambiguity about the time scales. We feel that amendment No. 16 is the appropriate way to proceed.

Under subsection (1) of the new clause an individual is entitled when giving consent for a medical report to state whether he wants access to it. If he does, the applicant —the insurer or employer—shall notify the doctor and the individual that he has done so. Under subsection (2) the practitioner shall not provide the report to the applicant unless the individual has had access to it or 21 days have elapsed since the application was made and the individual has not taken steps to gain access to it.

Subsection (3) of the new clause provides that the individual may give notice in writing to the practitioner that he wants access before the report is sent. In those circumstances, the practitioner shall not supply the report unless … the individual has access or … 21 days … have elapsed and the individual has not taken steps to make the necessary arrangements. We may argue long and hard about what that time period should be. However, it needs to be fairly short so that the report still has currency. However, it must be long enough for people to have reasonable time in which to make approaches and decisions on whether they want access. We believe that the amendment is a technical improvement on principles that are already established in the Bill.

Amendment No. 17 is another new clause. It deals with consent to supplying of report and correction of errors. Again, this is a matter of drafting style and of a rather more structured approach. It provides in subsection (1) that an individual must give consent to a practitioner for a report to be sent to the applicant. Subsection (2) preserves the individual's right to amend the report or, if the practitioner is not prepared to make such amendments, to attach a statement to the report. Subsection (3) provides that such a request shall be made in writing. We had a long discussion at an earlier stage of the Bill about how the individual might show some dissent about what was being written. Having taken careful advice, we believe that the amendment would satisfy the sponsors' objectives. They are drafting improvements which we advise the House to accept.

Amendment No. 18 is another new clause, on retention of reports. It is intended to replace the provisions in clause 7 to make drafting improvements which spell out the obligations of medical practitioners in relation to the reports that they have supplied. Again, we are talking about time scales. They must retain the reports for six months and grant access with those rights to an individual by virtue of the Bill within that six-month period. They must make a copy available for inspection and supply a copy if the individual prefers that at a reasonable charge. Again, that seems very sensible. Amendments Nos. 19, 20 and 21 have the concomitant effect of leaving out clauses 3, 4 and 5, which we have replaced.

Amendments Nos. 22, 24 and 26 amend clause 6; we shall be discussing amendments Nos. 23 and 25 in a few moments. As the promoter of the Bill pointed out, they deal with exemptions. Their main purpose is to make minor drafting adjustments. Clause 6(5) has been rewritten to improve the drafting style and structure. In summary, it improves the drafting which provides that a practitioner may withhold information where serious harm may be caused to the individual or an identified third party. Even where such exemptions exist, the practitioner shall not forward a report without the individual's consent.

Amendment No. 27 would leave out clause 7 and amendment No. 28 deals with clause 8. My note simply says that they are intended to improve drafting style and will not change the substance of the clause, and I therefore cannot offer futher comment.

Amendment No. 29 would insert a new clause to clarify the notification provisions. It says that any notification shall be given in writing; and … may be given by post. I understand that provision that notification may be served by post was missing from the Bill. Whether it means that notifications will be missing if they are sent by post is probably a matter for another Minister and not for me, but it is important that the provision should be included.

Mr. Robin Corbett (Birmingham, Erdington)

Malicious communications?

Mrs. Currie

I doubt whether it would be regarded as a malicious communication if it were written with the interests of the patient in mind. However, our earlier discussions may be relevant in some circumstances, which is why the Bill may be needed.

Amendment No. 30 moves from clause 1 to clause 9 the provision ensuring that the Bill does not apply retrospectively. It does not change the purpose of the Bill but simply reorders it.

Although we have a large number of amendments before us, many of them duplicate each other and many simply strengthen definitions and do not change the substance of the Bill. The overall result is a considerable improvement and all concerned are to be congratulated.

Mr. Dafydd Wigley (Caernarfon)

I congratulate the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) on introducing the Bill. As one of the sponsors of the Bill, I am glad that it is making progress. It deals with one aspect of access to information—a large subject on which we need to make further progress. Much information that affects individuals is unnecessarily unavailable to them. Therefore, I heartily congratulate the hon. Gentleman on his progress with the Bill.

Like other hon. Members, I suspect, I have some difficulty in following the layout of the Bill now that substantial changes have been proposed in another place. That reflects on the way in which we deal with legislation that comes to us from the Lords with a substantial number of amendments. Would it not be more sensible to have a Bill as amended by the House of Lords, just as we consider a Bill as amended in Committee? That would make the Bill with the proposed changes easier to read. It would be less complicated than having to interpose the amendments in the original Bill as we do at the moment.

Mrs. Audrey Wise (Preston)

That might be going too far and it might still be hard to compare the original Bill with the Bill as amended in the Lords. Would not one solution be to have an explanatory briefing such as we have in the Bill itself? I share the hon. Gentleman's difficulties.

Mr. Wigley

We have an explanatory memorandum at the beginning of the Bill, but it is completely irrelevant by the time that it has been rehashed in the House of Lords. In Committee, we have notes on clauses which Departments kindly supply and that is of considerable assistance to us in our work. In this case, we are discussing what is virtually a new Bill without the help of an explanatory memorandum or notes on clauses.

I would have liked to ask the hon. Member for Roxburgh and Berwickshire one or two questions arising from the changes in the Bill, but I see that he is no longer here. I suppose that I should put them to the Minister, who hinted, when she dropped her guard a few moments ago, that much of the Bill is accepted by the Government even if it is not inspired by the Government. Perhaps she can clarify the way in which the Bill may work in practice. Not having served on the Committee, I have not had the opportunity to raise these points. First, we are avoiding retrospection. What, then, will be the position of an employer who has not taken steps as rigorous as he might otherwise have taken when employing a person, on the assumption that ongoing medical scrutiny of that person is possible? I assume that the Bill will apply to anyone now in employment who needs to have a medical. I think that the Minister sees my point, and I should be grateful for clarification.

I entirely accept the intention of the Bill to make information available, but am I correct in thinking that, even with the amendments, the Bill still provides that a report cannot be supplied without the individual's written consent? If the individual withholds that written consent—the phrase used in the explanatory memorandum for clause 5—the report cannot be given. What will be the position of an employee who is currently working for an employer if that employer starts to have misgivings about his suitability to continue to do a specific job? I worked for a time in the food industry, in which ill health could affect one's suitability for involvement at certain stages of food production. An employer at a food factory may feel that he needs a report. If the individual says that he will not give written consent, will the employer not be able to obtain the report? I imagine that that cannot be the implication, although that is what the explanatory memorandum to the original Bill suggests. I am not sure whether the description is correct or whether there has been a change. I am sorry to be raising an involved point, but I imagine that there must be some safeguards for the employer, too. If a medical report is a material factor because of the nature of the work that the employee is undertaking, the employer must surely have some way of getting the information without there being any form of embargo. If he does not, he may be forced into moving the employee, and from that could arise issues of access to information and the involvement of industrial tribunals. I imagine that this matter could be complex and I should be glad of assurances as to how the system will work.

Amendment No. 16 refers to a time lag of 21 days. I understand that the intention is that "supplying" will include provision of a report by post. Does one need proof of posting for those purposes? Should there be registered or recorded delivery post, or is it enough for the medical practitioner to say, "I put the report in the post" and for the 21 days to start clocking away from then?

From time to time constituents see hon. Members about difficulties in getting a job. We ask the constituent whether he minds if we have a word with his doctor. I take it that the Bill, in applying to employers or those involved in insurance, will not cut across our ability to ask the doctor questions.

Mr. Kirkwood

indicated assent.

12.30 pm

Mr. Wigley

The hon. Gentleman is saying that it definitely will not restrict that ability. The Bill as originally drafted provides for the making of inquiries, albeit not by the employer. The revised wording is tighter, and I think that my understanding of the measure is correct.

We need to be certain about these matters before the Bill reaches the statute book. In asking questions, I am in no way diminishing the Bill's importance or trying to be obstructive. As I said, I agree with the direction in which we are moving. We need to be certain about these specific points.

Ms. Jo Richardson

I congratulate the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) on introducing this worthy Bill. As I said in an intervention to the Minister, it is extraordinary that a Bill may start as a private Member's Bill but, when the Government get hold of it with their parliamentary draftspeople, it becomes entirely different. The Bill has been rewritten considerably.

The hon. Member for Roxburgh and Berwickshire said that the amendments and new clauses were debated at some length in the House of Lords, but that did not happen. Lord Tordoff introduced 25 amendments and five new clauses in a speech that lasted all of nine minutes. It is a bit much to explain in only nine minutes why a Bill has been re-written and why clauses have been withdrawn and new clauses added. That is treating the House cavalierly. After those nine minutes, the House passed all the amendments and new clauses within half an hour and then on 23 June had five minutes on Third Reading. That is a superficial way of assisting Parliament in drawing up new guidelines for an important extension of freedom of information.

Mrs. Wise

To be fair to the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), who is not here at present, he said that the other place had considered this matter briefly. Exactly how briefly was not clear. The hon. Gentleman said that the Bill had been considered a great deal by officials and draftsmen and in that context he talked about the detail. Does my hon. Friend agree that it is dangerous to have the Bill considered in detail by officials and then briefly by those with parliamentary responsibility and that we should ensure that there is closer parliamentary scrutiny?

Ms. Richardson

I agree with my hon. Friend. Some Bills are only a few lines long and have a simple point to make, which one can immediately grasp. As I am a London hon. Member and am regularly in the House on Fridays, I catch up with many private Members' Bills. Some are easy and some are more difficult to absorb. I have read this Bill with great care and have tried to understand and slot in the amendments. This morning, the Minister did her best to justify why what appeared to be perfectly good drafting in the original Bill had been replaced by what she tells us is better drafting. That is beyond me.

Mrs. Currie

I am sure that the hon. Lady realises that I am not the promoter of the Bill. Indeed, if I were, there would not be a Bill.

Mr. Corbett

The Minister is neutral.

Mrs. Currie

I am entirely neutral.

The Government's view is that we should not legislate in such matters. Therefore, the hon. Lady's comments about the necessity for explanatory memoranda and all the rest should be directed to the distinguished, important and highly motivated hon. Member who is sitting in front of her, the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood).

Ms. Richardson

With great respect, I was directing my remarks to the promoter of the Bill, and I hope that he will have an opportunity to say something. From her tone, I gathered that the Minister welcomed the Bill. She said that she had waited to see what progress it made before she committed some of her parliamentary draftsmen staff to it. I thought that she took up the matter rather enthusiastically.

Mr. Wigley

Does the hon. Lady recall that the Minister said: the proposals that we have brought forward and then corrected herself?

Ms. Richardson

Exactly. That leads me to conclude that we must be careful. I am not against the Government —whatever Government—giving the professional assistance that they have at their disposal. Back-Bench Members who bring forward Private Members' Bills do not have that professional assistance. The Government should face up to their responsibilities and say, "In effect, now that we have altered the Bill, it is a Government Bill." I advise its promoter that the Bill is virtually a Government Bill.

I shall make some comments about a few of the amendments, if I have them right, and there is no guarantee that I have understood them all. Amendments Nos. 1 and 2 seem to be a prime example of redrafting for no purpose at all. They simply substitute one set of words for another. For example, amendment No.1 deletes the words Subject to the provisions of this Act and Amendment No. 2 inserts the words in accordance with the provisions of this Act I cannot see the difference between the two. The Minister said that the new form is tighter, and more understandable. I despair when the public see us substituting words such as in accordance with the provisions of this Bill for subject to the provisions of this Bill They may think that we are being pedantic. When asked why the words had been changed, Lord Tordoff did not know the answer.

Ms. Diane Abbott (Hackney, North and Stoke Newington)

Does my hon. Friend agree that another example of that is Amendment No. 13? It states: leave out 'an' and insert 'the'. Members of the public find such amendments inexplicable.

Ms. Richardson

I agree with my hon. Friend. I probably have that point among the notes that I have scribbled.

I am not trying to be unfair or introduce matters that I should not, but amendment No. 3 contains the word "individual". As a matter of interest, can the individual be a resident only of Great Britain, or can he or she be a resident of any part of the United Kingdom? I am trying to find out whether Northern Ireland is covered. [Interruption.] The Minister and her advisers are clearly trying to make up their minds. Clause 7(3) of the original Bill provided that it would extend to Northern Ireland, but that was taken out and does not appear in the present version. The Earl of Arran said that it is the intention to apply the Bill to Northern Ireland by Order in Council once it receives Royal Assent."—Official Report, House of Lords, 18 May 1988; c. 379. If that is so, why could not the original provision remain in the Bill, where it would have the force of statute rather than the less binding force of a Government intention? What is the reason for the change? No explanation has been given. I see the Minister struggling and seeking advice, so I assume that she does not know either. In other contexts, the Government constantly remind us that Northern Ireland is as much a part of the United Kingdom as Nottinghamshire, so why at this stage in the game do they run away from legislating for Northern Ireland identically with other parts of the United Kingdom?

Amendment No. 8, which extends the provisions of the Bill to self-employed persons, is greatly to be welcomed. Can the promoter tell me whether people on restart and training programmes after previous unemployment will be regarded as trainees for the purposes of this legislation? An employer may wish to ask for a medical certificate in respect of a trainee. This may be covered elsewhere, but the position is not clear to me.

On amendment No. 15, the Minister gave no justification for the substitution of the new clause for the provisions in the original Bill. My comments on this show my great faith in the promoter, whose Bill I understood rather better than the version now before us. All that Lord Tordoff could say was that the drafting and structure had been improved, but he offered not a shred of evidence for that sweeping generalisation. Again, the House is being treated with a certain contempt, if that is not too harsh a word, in being expected to absorb legislation of this magnitude and gravity in this way. A thoroughly worthy and laudable Bill has been virtually rewritten in the House of Lords and very little time is available for the House of Commons to consider the new version and for the Minister to explain what is happening.

Amendment No. 22 relates to clause 6(1), which provides that a doctor may withhold some information in a medical report on certain grounds, one of which is that the information would indicate the intentions of the practitioner in respect of the individual. That phrase is incomprehensible and I cannot see its relevance. It is included not on its merits but as a piece of bureaucratic tidiness. Lord Tordoff also said: The Government have asked for this exemption in order to keep in line with the Data Protection Act. That is another mystery which is slightly beyond me."—[Official Report, House of Lords, 7 June 1988; Vol. 497, c. 1310.] One way or another, there are many mysteries in the Bill that Lord Tordoff did not clarify, because he did not understand them either. Certainly they have not been clarified in my mind.

Having said that, I do not wish in any way to alarm the Bill's promoter into thinking that I do not approve of it. It is very worthwhile legislation. Bit by bit, with this Bill and that of my hon. Friend the Member for Islington, South and Finsbury (Mr. Smith) which will also come before us with Lords amendments, we are making a little progress—considerably more than the present Government ever made or will ever make.

12.45 pm

Mr. Richard Holt (Langbaurgh)

I only intended to look in for a few moments this morning, not meaning to get involved in any way in this legislation, which I have not followed. However, on reading the explanatory memorandum on clause 1, I wondered why we were discussing this legislation at all, as to my mind it will be almost meaningless. From my 25 years of experience in personnel, I know that the last thing an employer ever does is to call for a medical report from a would-be employee's general practitioner. He will go to somebody else. However, the explanatory memorandum states: Only a medical report prepared by a medical practitioner who is or has been responsible for the individual's clinical care is subject to the Bill.

Madam Deputy Speaker (Miss Betty Boothroyd)

Order. I remind the hon. Gentleman that, much as his comments may have been welcomed in the Second Reading debate, I shall be obliged if he will now speak to the amendments.

Mr. Holt

I appreciate your comment, Madam Deputy Speaker, and, without wishing to stretch the patience of the Chair, I spoke with the Bill's promoter before intervening and I believe that amendment 14 covers the area to which my general remarks relate.

If parliamentary time is to be allotted to improving access to medical records, which I wholeheartedly support, the narrow way in which that is to be introduced will do very little to enhance progress. If anything, it points to ways of stopping progress. I do not seek to do anything that will halt the progress of the Bill, but I hope that anyone who is enthusiastic about it will realise that there is really very little to be enthusiastic about. I trust that the Bill's promoter will not feel that I am being critical of him or of his Bill. He has done a jolly good job in bringing it to the House, but the House itself should have amended the Bill, and the Government should have made it clear that the Bill will cover the report of any medical practitioner.

Mr. Corbett

The hon. Member for Langbaurgh (Mr. Holt) put his finger on an extremely important point. He may be looking for the Government's assistance with this Bill, but as the Minister herself confirmed, the Government are neutral to the point of not wanting to raise a finger. She said this morning that, had she had her way, the Bill would not be before us.

I had not appreciated that reports of the kind to which the hon. Member for Langbaurgh referred, from a medical practitioner other than the individual's own GP, will be excluded. The hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) made that clear, as did the Minister earlier. The concern expressed by the hon. Member for Langbaurgh is particularly important in view of his experience in personnel. I must say that it was not my point, but I hear and respect what he says. If that is so—and we have been told twice this morning that it is so—employers or insurance companies have a way around the provisions staring them in the face, and in my view it is an extremely unwelcome loophole.

I hope that the hon. Member for Roxburgh and Berwickshire will accept that I am not trying to hold up the Bill, which is a step forward on a long and bumpy road. Nevertheless, an employer or prospective employer, or an insurance company, could be encouraged deliberately to avoid consulting the individual's own doctor, safe and sure in the knowledge that that individual could not then ask to see and comment on the report. We may speculate on how often that is likely to happen, and whether it is good personnel or industrial relations practice, but it could happen, and I do not think that that is right. In such circumstances, the independent doctor would not normally have access to the individual's medical records as a guide to his medical history and background, which surely is not helpful to an independent doctor asked to carry out an examination and then make a report.

Mr. Wigley

Is not the likely pattern that an employee will be required, particularly when joining a company in which his medical condition is a sensitive issue, to give an assurance that he will always be willing to submit to the scrutiny of the company's medical officer—as is often the case at present? In such circumstances, the employee will have no access to the information that the medical officer may have or may be providing to the management about him, and the medical officer will certainly not go to the employee's GP so as not to trigger the provisions of the Bill. Should we not be careful of such a development?

Mr. Corbett

That is perfectly possible. Let us view a brighter aspect of the matter and suppose that an employee is being considered for promotion to some fairly important management post. Those responsible for the appointment may want an up-to-date report on his medical condition, which would be wholly understandable. It would be sensible for an independent doctor not just to examine the individual, but to discuss with him the conclusions he has reached. Although the Bill provides that that shall not happen, there is nothing to stop it from happening.

I do not want to nit-pick, but there are other problems—

Mr. Holt

Could we expand the example that the hon. Gentleman has given, in the practical world? Let us say that a man is going into senior management, and that as part of his new emolument package he is put into a private medical insurance scheme. Will the two doctors have to communicate with each other in writing, and will that written communication be made available to the person who is to be promoted? If not, the whole thing is meaningless.

Mr. Corbett

I am afraid that I cannot answer that question: it is best directed to the promoter of the Bill.

Clause 2, which deals with interpretation, says: 'care' includes examination, investigation and diagnosis". Can it be any one or two of those, or must it be all three? If it can be any one, two or three, could it not be argued that, because the definition must embrace an examination, an examination by an independent doctor called in by the insurance company or employer may be covered by the Bill?

Mr. Wigley

Perhaps I can assist the hon. Gentleman. Lords amendment No. 6 seeks to leave out "and" and insert "or", so that the Bill would read 'care' includes examination, investigation or diagnosis". Presumably, "care" means a clinical examination which could be undertaken by more than one doctor.

Mr. Corbett

I am grateful to the hon. Gentleman for his intervention, which both helps and hinders. We have established that any one of those criteria could apply. That being the case, clearly a clinical examination must be carried out by an independent doctor, and that at least would bring it partially within the Bill.

The other aspect which I find worrying echoes the point made by the hon. Member for Langbaurgh. It does not involve far-fetched circumstances. Let us suppose that the independent doctor who has been called in is uncertain on a point, after his examination of the individual, either because he does not believe what he has been told about the individual's previous medical history or because his questioning did not provide him with the information that he was seeking to confirm a conclusion that he was reaching.

As the Bill stands, it seems that the independent doctor would be unable to consult the medical practitioner responsible for the clinical care of the individual. If the independent doctor wanted to consult the individual's GP, what would be the status of the report produced by the independent doctor? One could argue that if the independent doctor consults the individual's GP, technically and practically the GP has had a hand in preparing the report of the independent doctor in the sense that his observations or revelations of previous medical history would feature in that report.

Even if the independent doctor had been denied information, opinion or assistance to confirm or clarify his or her opinion, or if the individual's regular GP had had some part, however small, in preparing the report, that would seem to bring the report into the scope of the Bill.

I am not seeking to complicate the matter. This is an important point, which worries me, because it does no service to the individual, the independent doctor, the employer or the insurance company if the independent doctor's report is flawed or incomplete in that it is unable to tell a full and accurate story.

If that is so, what is the value of such a report unless it is confined to establishing what is the general state of health of the individual, to which the answer is bad, not so bad, good, very good or excellent? I am not absolutely sure how much value that would have in terms of prospective senior management. I should have thought that there are people knocking about who could do that without any medical qualification.

What is the value of that report? Surely it is in everybody's interest that the report should be as accurate as possible. Surely it is beyond belief to make a distinction between a report drawn up by an individual's regular GP and that of a company doctor called in for that purpose. I suspect, because of the time, that we shall have to let this one go if we want to give the Bill a fair wind to the statute book, as I am sure the whole House would wish to do. We keep nibbling at the edges of this subject and it is perfectly obvious from the comments that have been made today that it is something to which we will have to return, probably in the context of a full-blooded freedom of information Act. That is the only way to clear up this and many other issues.

1 pm

Mr. Kirkwood

I am suitably chastened as I fully expected to be, bringing before the House this plethora of amendments. I understand the comments that have been made. There were constraints of time and I was not highly placed in the list of private Members' Bills. The pressure of time in the Department was also considerable. I accept that it is difficult for the House to cope with such a number of amendments which substantially change the wording of the Bill. However, the Under-Secretary of State and I, who are at one on this, have been trying to make the point that there is no major change of substance in the Bill. The issues in the Bill as we are suggesting it should be amended are not significantly different from those in the Bill during the earlier stages.

It is true that there was a formal Second Reading and that the Committee and Report stages were constrained. I fully accept that. However, that was the time when some of the issues should have been raised. The important points that have been made by hon. Members today were in the Bill then, although perhaps in different words.

We must bear in mind that the provenance of the Bill is simply to try to get round the fact that medical files kept by general practitioners are substantially inaccurate in many cases. That is what causes people to suffer the prejudice that the Bill seeks to redress. The Bill does not seek to be a freedom of information Act, which I would fully support, and it does not seek to address the question of independent medical reports. It simply attempts to give individuals an additional layer of protection against suffering prejudice because some mistake, subjective comment or other piece of information finds its way into medical files, which as I have said follow people from the cradle to the grave. Such information could cause people to suffer prejudice when applying for jobs or insurance policies.

The Bill has a limited objective and I accept that. Anybody who studies the information that has been made available to me by the freedom of information campaign and others about the extent to which individuals can suffer prejudice in such circumstances would be convinced of the need for this small change in the law. It simply seeks to ensure that any information made available specifically for the purpose of prospective employers or insurers will be accurate.

If that is the genesis of the idea behind the legislation, it is necessary only to focus on the information derived from the medical files. Therefore, independent examinations, for which prospective employers or insurers are entitled to ask, have a more limited function. In an independent report there is no danger that an error in the medical file will be translated into a report that will cause an individual to suffer prejudice. We have to keep the proposal in that context.

Mr. Wigley

The hon. Gentleman spoke of a "prospective" employer. I am sure that he will confirm that we are dealing with not just prospective employers but existing employers. That is my understanding of the wording in both the Bill and the amendment from the other place. Secondly, there is an amendment that changes the definition of "care" to specify, "examination, investigation or diagnosis." That is an important amendment which substitutes "or" for "and". In that context would not a doctor who is responsible for the clinical examination of an individual come within the scope of the Bill and would that not include a doctor working for a company? If it does, the Bill goes considerably wider—in many ways I would welcome that —but it will cause problems with the individual's ability to prevent the report being available to a company's management. It is an issue that we must address before passing it as law.

Mr. Kirkwood

Reports required during the course of someone's employment as well as when they apply for a job will be included in the Bill. That was certainly the Bill's original intention.

The change of the definition of the word "care" is specifically designed—I took advice on this matter—to exclude people conducting independent examinations. Reports should be made on the objective or clinical judgment of a general practitioner who has a patient in front of him, of whom he can ask questions, and examine and on whom he can carry out tests and do all the other things he needs to do to arrive at a conclusion. It is only necessary for the GP to state whether the person is suitable for the job in question. The general practitioner does not have to go into a deep psychological or mental history. He must certify only that the person is medically fit for the job.

I am trying to ensure that the patient does not suffer any prejudice because the medical file that the GP has been using is wrong. Medical files are transmitted from GP to GP.

Mr. Wigley

I am sorry to press the hon. Gentleman, but I am sure that hon. Members will agree that it is important to clarify this matter. In the Bill the definition of "a medical report" means a report. of an individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual and that means the clinical examination of the individual. Doctors who work for companies or are used by companies may have been responsible for the clinical examination of an employee. Such a doctor may not be the GP of the employee. In those circumstances, a report prepared by that doctor for the company would be subject to the procedures of the Bill. If the employee says, "No, that report cannot be used" it would be a veto on its use.

Mr. Kirkwood

I understand what the hon. Gentleman is saying, but that is not the advice that I have been given. Independent examinations are outwith the scope of the Bill. I do not believe that it is necessary to include them. If that definition is inadequate, I apologise. I hope that assistance will come from another direction that is completely outwith my control.

The hon. Member for Caernarfon (Mr. Wigley) made a further important point and I do not want to duck it. He said that employers may suffer inconvenience by being denied access to information. The information about which I am talking is that supplied by a patient to a general practitioner in confidence. The medical file follows the patient from cradle to grave. I do not believe that, because inconvenience may be suffered by an employer, individuals should have to allow information to be passed on if it cannot be cast-iron guaranteed as accurate and correct.

Mr. Wigley

In general, I agree with the hon. Gentleman. That is why I am a sponsor of the Bill.

Mr. Kirkwood

Why, then, does the hon. Gentleman not leave me alone?

Mr. Wigley

I am determined that any Bill that I sponsor can be defended by me when it leaves this place. A person with a contagious disease might be working in a food factory. The implications for the general public go beyond the rights of the individual. I want to be sure that we have struck the right balance.

Mr. Kirkwood

Individuals will have the right to see the report, or they will have the right to make a written statement if they cannot persuade the doctor that the report is inaccurate. They will also have the right to say that the report must not be sent. That would be the best way to deal with the case that the hon. Member for Caernarfon described. If an applicant, suffering from a contagious disease, worked in a food factory and denied the doctor the right to send a report based on his medical record, the employer would be able to ask for an independent medical examination, and that would reveal the contagious infection.

I am trying to protect the individual in as many ways as I can from being prejudiced by incorrect information on his medical file. The hon. Member for Caernarfon and I agree that the best policy would be to allow patients to have access to all their medical files. The Department is moving fast, although not fast enough for some of us, in that direction. I detected an encouraging warmth of tone, if no more than that, in the Minister's voice when she said that some progress is being made. If sufficient progress had already been made, there would be no need for the Bill, but we are not there yet.

We were given advice about what happens in Northern Ireland. It is an important point. If parliamentary draftsmen have to find their way through arcane procedures, those governing Northern Ireland are even more arcane to a simple-minded Scottish Member of Parliament such as I. I am told that Orders in Council are the appropriate way to deal with Northern Ireland legislation and that it would be without precedent to legislate for new statutory rights without going through the Order in Council procedure. I pass on that information for what it is worth. That is what I was told when I asked the question.

We considered at some length how the self-employed would be affected by the Bill. I understand that if a contract is in prospect between an employee and an employer the provisions of the Bill would apply, but a complicating factor is whether the prospective employer is a Department of State. We may have to return to that point when we discuss later amendments.

I am sensitive to the criticism that the House is being asked to consider an unsatisfactory Bill, but I am not the master of my own destiny. It is self-evident that the Bill is not perfect, but if the amendments were accepted, the possibility of ambiguous construction by the courts would be much less likely. I throw myself on the mercy of the House and ask it to accept the Lords amendment.

Mrs. Currie

If I may respond to the point that the Bill is different now because the Government have taken an interest in it, I would point out that in our view the Bill is important. The alternative to corrections by parliamentary draftsmen would be to allow deficiencies to appear in legislation approved by the House. The Government have a responsibility to help everybody to avoid legislative nonsense. That does not by itself make it a Government Bill. I consider that responsibility important. In my previous incarnation, much of the work I did involved making some kind of sense of and headway with legislation passed by a Labour Government. If they had taken as much care with all their legislation as the promoter of the Bill and his sponsors are taking with this piece of legislation, no doubt we would have had a much easier time.

1.15 pm

I thought it might help if, for 10 seconds, I allowed a slight glimpse behind the dark curtain of Government processes and gave the House an idea of exactly why parliamentary counsel felt that some major redrafting was necessary. Parliamentary counsel were examining why we needed new clauses to replace clauses 3 to 5 and 7. They said: I confess that we have found those clauses of the Bill somewhat unsatisfactory from a structural point of view: it does not strike us as being very easy to see how the story develops over the clauses. In particular, the opening words of clause 5(1) are somewhat divorced from what has gone on before. And clause 5(1)(a)(ii) is intimately connected with the provision tucked away in clause 7. The hon. Gentleman did not spot that when he wrote his Bill, and neither did I when I discussed it with him on Report and Third Reading. I suppose we should both offer the House an explanation and an apology. It is, on my side, offered with a full heart and great contrition.

I must apologise if I confused the Opposition earlier—especially the hon. Member for Barking (Ms. Richardson), for whom I have the greatest respect and affection—when I said that, if we had our way, there would not be a Bill. What I meant was that in all our discussions about the efforts that have been made to improve patients' access to information written about them in medical records—access which we regard as increasingly important and valuable in improving their health and their compliance with the advice and assistance offered to them by their doctors—we prefer to proceed by negotiation. I am content that we are making progress in that, but we never rule out the possibility of legislation. I suppose it sits there as a dark threat of what might happen if we do not make any progress on these matters.

Our objective is to try to improve the relationship between doctors and their patients and to make sure that confidence, which should be a major part of the relationship between doctor and patient, is reinforced. That should be very much a part of the pattern of acceptance of treatment and care in future. It is not intended in any way to diminish that confidence or to interfere with that relationship, but if Parliament decides —as it may in about five or 10 minutes—that it wishes this piece of legislation to proceed, the Government are, of course, entirely helpless, but will do whatever they can to ensure that it goes on to the statute book in the appropriate way.

Question put and agreed to.

Lords amendments Nos. 2 to 22 agreed to.