LORDS AMENDMENT (Hansard, 22 November 1976)

§ Lord WELLS-PESTELL
My Lords, I beg to move that this House doth not insist on Amendment No. 40, to which the Commons have disagreed for the Reason numbered 41 which, as your Lordships know, is because it is unnecessary to introduce a statutory requirement in order to ensure that confidentiality of medical records is maintained. I know how strongly certain noble Lords opposite feel about this. There is no one in your Lordships' House who is more concerned over the question of confidentiality than myself. It has been a concern in my own professional social work field for a good many years. This Amendment would impose on the Board an undertaking which requires the presentation of the confidentiality of medical information. This would be without precedent, for it has never been considered necessary to deal with this highly important issue by Statute. We ought to look at this carefully.
I can readily understand the anxiety that doctors may feel about [...]he paramount need to preserve the confidential relationship between their patients and themselves; and equally I understand and sympathise with any anxiety that there may be among potential patients on that score. The House will recognise it does not require a statutory undertaking to ensure that the confidential position of medical records is maintained. The Amendment places on the Board a requirement not to make recommendations about common waiting lists which could require doctors or dentists to disclose to anyone confidential information given by patients.
Since the beginning of the National Health Service not only doctors but many others, such as hospital staff, have handled the medical records of NHS patients and have faithfully observed their confidentiality. I do not want to go over the ground time and time again, but I am almost tempted to say there is a vast army of people in our hospitals who, of necessity, have access to confidential records, but I know of no instance at all where there has been any serious breach. I cannot think of any breach.
I can assure the House categorically that there is no question of any recommendation made by the Board on the 1711 best way of achieving common waiting lists and requiring confidential medical information about patients on waiting lists to be made available to people who have not been accustomed to handling such information responsibly in the past. Let us face the fact that it really has worked very well. If I may say this without being misunderstood, members of the medical profession over a long period of time have handled this situation very well. We see no need for it to be put in a Statute. I beg to move.

§ Lord PLATT
My Lords, the situation about confidentiality of records gets more difficult day by day and year by year. I could, if the noble Lord wished me, cite some instances where confidentiality has been broken; and of course there is the Road Traffic Act of 1947 which places a duty on a doctor to expose certain information to the car licensing authorities, and so forth. This is a subject which needs eternal vigilance. The Amendment was a good one, although no doubt we shall not press it.

§ Lord O'HAGAN
My Lords, I intervene for the reason that, having read what the Minister said in the Commons I do not think that he grasped the objective of the Amendment; and while the noble Lord, Lord Wells-Pestell, has, it was not apparent from his answer. We are dealing with Clause 6 which covers common waiting lists. This Amendment should be seen, in the context of Clause 6, with the aim of this Bill to make sure that admissions to NHS hospitals are on the basis of medical priority alone. When the Minister in another place said that he was not sure how it could be argued that the situation will be a new one, I think he was wrong because the situation is a new one; the preparation of common waiting lists is the novelty.
This Amendment attempts to deal with a situation created by the introduction of these common waiting lists which are to be based solely on the grounds of medical priority. If these waiting lists are introduced, somebody may get it into their heads to question whether a patient has 1712 been admitted as fast in their view as his medical condition demands, or whether somebody else has been admitted too fast. He may question some person outside the medical profession who may think that the intention of the Government in introducing common waiting lists has not been observed by a doctor in a particular case. He may think that, in spite of the introduction of common waiting lists, a doctor has not carried out the Government's intention of having a waiting list based on medical priorities alone. Somebody may say, "Why have you not done X or Y?"or, "Why have you done that?" and the person involved will find himself under considerable pressure to show that he has been carrying out the objective of the Government in introducing a common waiting list. Therefore, while I agree that what the noble Lord, Lord Wells-Pestell, said about the way in which the medical profession have observed the tradition of confidentiality in the past and I would not dissent from that in any way, I am saying that the Government have introduced a new factor. It is to cope with the additional stresses imposed by the Government's own proposal that this Amendment was put forward: at least, I supported it for that reason.
I wonder whether the noble Lord envisages a situation in which doctors will be questioned as to whether or not they are carrying out the Government's intentions. A doctor may be criticised for not admitting somebody solely on the basis of medical priority, but it would be different if he could turn to the Statute, or knew that he could quote it and say, "I am not allowed to explain this. It is the custom we have always observed, but I also have this additional protection in the law which puts me under an obligation to introduce a common waiting list." I believe that this Amendment would have preserved what both sides of the House wanted to preserve, and I wonder whether perhaps the noble Lord does not recognise that there is a new situation here—a situation of the Government's own making—which this Amendment was designed to improve by giving additional protection to those who would be called upon to carry out the Government's wishes.

§ Lord HUNT of FAWLEY
My Lords, as an example of how difficult it may be for a doctor to keep confidentiality, a 1713 case came to my notice the other day of a young man who had committed some petty felony. He was not sleeping well and went to his doctor, who gave him sleeping pills and asked a social worker to help the young man. He was indeed helped; but the social worker's notes went to be filed in the local authority offices where, by some means, they came to the notice of the police. The next thing the doctor heard was that the young man had been charged with the petty offence. That was not the fault of the doctor or of any one person, but the fault of the system. It is an example of how difficult it is for a doctor to be sure of confidentiality.

§ Baroness YOUNG
My Lords, I am quite sure we all accept the good faith of the noble Lord, Lord Wells-Pestell, in this matter and that he is as concerned as we are about the question of confidentiality. I entirely take his point that it has not been on the Statute Book before, but I do not think that anyone could have put the case better than my noble friend Lord O'Hagan, because this is in fact a new situation. I accept absolutely in good faith, as we have all accepted, the point about the common waiting-list, but the fact is that if admittance is based entirely on medical need there will be people who will question who should be in hospital, because there are going to be a lot of people looking at lists and seeing who is admitted. It is a matter to which I believe the Government ought to give very close attention, because it is absolutely fundamental to the relationship between a doctor and his patient that there should be medical confidentiality. It is the most fundamental of points and has existed for, I should say, thousands of years now. Once it gets about that this could be broken in a number of new circumstances, it will be very undermining to the Health Service. Therefore, although regrettably we must accept that the Government are not going to look at this, I would end by making a plea that when the Government issue their circular about the Bill they will make some observations about confidentiality in the new situation.

§ Lord WELLS-PESTELL
My Lords, I think we ought to get away from the feeling that this is something new. There is actually nothing new about this at all. 1714 In every hospital, every day of every week, decisions are being made as to whether A or B should be accepted, and it is done on medical need or medical priority. What we are grumbling about is that it does not happen in the private sector; and because it does not happen in the private sector one can go in for social purposes and not always need. In the National Health Service, by virtue of the number of people waiting to go into hospital, this is being done every day by doctors deciding, "This person ought to go in before that person". One hears, "I get a notification putting me off for a week because they have discovered that somebody else is more important." It is not a new situation; it has been going on for a long time, and there is no reason for people to have reservations about it.

§ Lord SANDYS
My Lords, the noble Lord may complain of that particular situation obtaining in the Service, but I venture to suggest it is really an administrative problem, because statutory powers already exist. If the noble Lord turns to the Public Health Act 1968 he will read the following words in Part [...], Section 1(6): Nothing in this section shall prevent accommodation from being made available for a patient other than one mentioned in subsection (1) above if the use thereof is needed more urgently for him or medical grounds than for a patient so mentioned and no other suitable accommodation is available. The statutory powers are there but are not being used.