§ 6.16 p.m.
§ Lord Tordoff
My Lords, I beg to move that the Bill be now read a second time.
Some of your Lordships may remember—and it may have been noticed at the time—that my honourable friend in another place, Mr. Archy Kirkwood, last year presented a Bill on access to personal records, which I had the pleasure of moving and getting through all its stages in one day just prior to the general election. This dealt with a number of matters—access to records for housing, and so on. At that stage, we should have liked to have put in something about access to medical records. It was fortuitous that again Mr. Kirkwood, who seems to have a remarkable streak of luck in these matters, came high in the ballot in another place this year and introduced the Bill which I am now introducing to your Lordships.
It is a very limited Bill. It seeks to deal only with access to medical reports and not access to medical records. I would that it went further than it does, but one has to take these things slowly. In brief, the objective of the Bill is to give people a chance to see medical reports that their own doctors send to an employer or to an insurer so that they can correct any inaccuracies, and discuss and up-date the doctor on anything that is recorded on the medical record that is not up to date. It gives them the opportunity to know what they are consenting to when they sign a form authorising a medical report for employment or insurance purposes. They can make representations on any proposed disclosure which they would regard as an unnecessary breach of their privacy. Ultimately, if they are wholly dissatisfied with the proposed report, they can withdraw consent for it to be supplied.
If they do not make use of the opportunity to see the report before it is sent, and for some inexplicable reason they are later turned down for a job or for an insurance policy, after the event they can check whether the mistake in the doctor's report might have been responsible. Even at that stage they might be able to reverse the decision or prevent that mistake recurring in a future application.
A number of case histories have been reported in another place. I propose to quote only two, one of which is new and one of which has been mentioned before. The first case which illustrates the need for access to information of this kind is from a woman who said that certain clinical data regarding herself had come to light and recently, on opening a referral 372 letter from her GP, she found that the GP had written:I know nothing about her, except that she has had emotional problems since the death of her husband".This lady goes on to say:I married my husband in 1961. I was a spinster, he a bachelor. My husband is alive and living here with me in our home…At no time in my life have I ever had to consult a Doctor because of emotional problems".She adds that the GP has no direct personal knowledge of her. Although on the list of Dr. A for some years she has never sought a consultation with him. The truth is that she has never met or set eyes on Dr. A. She was very upset and angry about this because she regarded the suggestion that she suffered from emotional problems as extremely damaging to her. She had held high positions in management in charge of staff, and with the label of emotional disturbance she would expect the level of her standing to be greatly reduced. It was obviously damaging her possibilities of obtaining employment in the future. That is one case.
Another case was quoted in Hansard in another place at col. 678 on 29th April in which the speaker said:Not long ago I went to the family practitioner committee in my neighbourhood. It has very good people and has recently computerised its records. It proudly punched up my cervical smear test record and said, 'You have not had one for ages. You are due for one now'. I said, 'But you haven't got any of my cervical cancer smear test records on your computer, I had one as recently as—and the date was given.
It punched more buttons and the computer record was a total blank.The reason for that was that it had the wrong NHS number. It had one digit wrong. I knew that and I was probably the only person in the entire country who did. It had punched 'LNUN' instead of 'LNVN'. That was clearly a mistake in somebody's handwriting".That was a quotation from Edwina Currie speaking on this Bill in another place. Mrs. Currie has been extremely helpful in the process of this Bill. I realise that the Government will wish to maintain a neutral postion on this Bill. Nevertheless, I should like to go on record as saying that Mrs. Currie has been extremely helpful to my honourable friend and I think that the Bill is all the better for the co-operation that we have had.
Access to reports for employers may be particularly important where there is anything in the medical record to suggest a history of mental illness. A 1978 report by MIND described repeated cases of employment discrimination against people with a past history of mental illness who were presumably currently healthy and otherwise qualified for work. We must ask ourselves whether patients who consent to the revealing of their medical history understand what that entails. Do they hope and expect that the doctor will be somewhat choosy in presenting the information? I doubt whether the consent of patients may be described as informed consent. Do they realise that their written consent amounts to much more than most of us would believe? People would suppose that there would be some brief, factual report of their general health. But it can be much more, and not all of it always objective. It is somewhat inaccurate, as we have seen in those two case histories.
373 With people worrying about AIDS—and no one is more worried about AIDS than the insurance companies, and one can understand why and I do not criticise them for that—the result is that they are becoming much more intrusive in the questions they ask. There is no doubt that jobs can be missed and insurance refused by the reporting of misleading. Inappropriate or even thoroughly wrong information.
Let me deal with the scope of the Bill. The Bill applies only to reports produced by a doctor who has been responsible for the clinical care of the individual—that is to say the patient's GP or a psychiatrist or a consultant who has treated the person. It does not cover reports produced by a doctor who has not treated the patient—for instance, a company medical officer who has carried out a pre-employment medical examination—or a doctor who has carried out an independent medical examination on behalf of an insurance company. Although the Association of British Insurers has questioned whether a strict reading of the Bill as drafted supports this interpretation, we believe that it does, and we have the support of the DHSS in that belief. Nevertheless, the DHSS has been good enough to say that it will have this confirmed by parliamentary counsel, and if there is any doubt we can provide an amendment at a later stage of the Bill; and I undertake to do that.
The reason for concentrating on reports produced by a doctor who has treated the person is that the doctor will have acquired information from the patient on the understanding that it is only to be used for medical purposes and protected from disclosure by mutual confidentiality. Disclosure of this information to an insurer or an employer for commercial rather than medical purposes involves virtually an enforced breach of this confidentiality. This is not the case when the individual submits to a medical examination for an insurer or employer. The person knows from the outset that the examination is carried out for the benefit of the company rather than for his or her own health.
As the Bill stands, the definition of employment— the "employment purposes" covered by the Bill—relates strictly to employees. Again the Government have said that they will be content to see the definition widen to bring in reports relating to self-employed persons acting under contract. Again I am hoping that we shall have some advice on that before we reach the next stage of the Bill when it might be necessary to propose a further definition in Clause 2.
Clause 3(1)(a) is the part of the Bill that requires an insurer or employer to have the written consent of the applicant before approaching the applicant's doctor for a medical report. Originally the Bill limited the validity of that consent to 90 days. But that caused problems for the insurers in that it would have prohibited their approaching the doctor on the death of the insured, perhaps in cases of suggested fraud. We found it impossible to secure a form of words that would be acceptable both to the Association of British Insurers and the BMA. The Bill, therefore, is now silent on this matter and preserves the present 374 situation whereby doctors will limit consent to the particular transaction. There is no change from the current practice.
Perhaps I may say a few words on how to apply for access to a report before it is sent. The Bill allows an applicant to have access to a report before the doctor supplies it, and for six months after it has been supplied. The procedure for applying for access to a report which the doctor intends to supply is as follows. First, the insurance/employment application form which asks for consent to take up a medical reference will invite the applicant to indicate whether he or she wants to see the report before the doctor sends it. Secondly, if the applicant says, no, or does not indicate, yes, the company can approach the doctor and the doctor can reply immediately. Thirdly, if the applicant says, yes, he or she has 21 days in which to contact the doctor and make arrangements for access. The company has to notify the applicant that it is seeking a medical report—reports are not sought in every case—and the 21-day period starts from the date on which that notification is given. Finally the company also has to notify the doctor that the applicant wishes to have access and to tell the doctor to wait for up to 21 days before sending the report to give the applicant time to arrange for access.
A parallel procedure exists under Clause 4(3) which deals with those cases where the company gets the applicant to pass the request for a report on to the doctor. It will also be possible, as I indicated before, to apply for access after a report has been sent. The doctor is required to keep a copy of the report for at least six months. Originally there was some suggestion that there should be a much longer period. However, I recognise that in practice six months will be long enough because this will probably come into effect only when people who have been turned down for a job or for an insurance policy wish to look back to see whether there is any reason in their medical report.
The exemptions are contained in Clause 6 and they are based on those in the Data Protection Act—about which the noble Lord, Lord Mottistone, knows far more than I do—and in the order which regulates access to health records under the Act. Thus the words in Clause 6(1) about disclosure, which:would indicate the intentions of the practitioner in respect of the individual".are included at the suggestion of the Government to bring it into line with the Data Protection Act. Similarly the words in Clause 6(3) about exemptions have also been included at the Committee stage in another place at the fairly firm suggestion of the Government.
Clause 8 deals with disputes over the contents of reports and when the applicant sees a report which the doctor intends to supply and disagrees with something, there are three options open. First, if the information is demonstrably wrong the doctor should correct it under Clause 5(2)(a). If the doctor unreasonable refuses, when it is obvious that the information is inaccurate, the applicant can as an ultimate step go to court for an order under Clause 8(1) requiring the doctor to comply.
375 If there is a difference of opinion which is not provable one way or the other, the doctor is not required to amend the report in any way. He would merely invite the applicant to provide a written account of his concerns, and the doctor would send that to the employer or insurer with his medical report. Finally, if the applicant is wholly dissatisfied with the report he or she can withdraw consent of it to be sent at all, bearing in mind that that would probably jeopardise the application for employment or for insurance but it is an option that the applicant should have open to him.
The most important aspect is that the Bill does not give the applicant the right to force the doctor to suppress any relevant information or to change a professional opinion.
The Bill does not apply to Northern Ireland, but I understand that the Government have undertaken to give effect to that by an Order in Council if the Bill receives Royal Assent. I shall be glad if, when the Minister replies, he will confirm that.
As I have said, I understand that the Government wish at some stage to suggest an amendment relating to the definition of "employment records". That exposition takes us through the Bill. It is a limited Bill and Mr. Kirkwood and I are beginning to learn that we have to move slowly on these matters. We certainly wish to include other medical reports such as those for social security and housing, but we decided that we did not want to take on too many Government departments at one time. Discussions are taking place between doctors and the department on the wider issue of access to medical records. Indeed I wish that that were in the Bill before us today, but there has to be time for the doctors to try to come to some agreement with the Ministry on how access to medical records can be achieved. However, I feel that they cannot go on dragging their feet for ever. Meanwhile the more modest but important proposals on medical reports are before the House.
We believe that openness will in the end lead to greater accuracy, perhaps even to greater honesty, but it is important that the Bill leads to greater accuracy. People will not find themselves failing to get jobs or insurance policies because of inaccurate or misleading information in reports about which they know nothing. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Tordoff.)
§ 6.34 p.m.
§ Lord Mottistone
My Lords, I am in general in favour of the Bill as drafted and welcome it. However, there is one worry, and that is that it does not fully protect all persons who might in certain circumstances be attacked by a mentally ill person who has access under the provisions of Clause 6 to a medical report, even if restricted under the terms of the clause. I should add that I am advised in this respect by the National Schizophrenia Fellowship.
What we should like to see in Clause 6 is the addition of "or others" after the word "individual" in line 34 on page 3. A researcher reporting in The Lancet on 6th December 1986 about giving psychiatric patients access to their medical files, also 376 drew attention to the small but not negligible number of patients—I emphasise "not negligible" because he reckoned the number is eight out of 100—who already had a history of violence and might react aggressively. The researcher mentioned factors which might trigger off a reaction. For example, a report for an employer forming part of a medical report might say, "This man would be a poor employment risk and I do not advise taking him on". That would put at risk the person who wrote the part of the report concerned, such as a previous employer who might have been consulted.
It may be argued that that person could be protected by Clause 6(2). However, even that subsection is not wholly protective in all cases. The NSF had a recent case of a member whose sister (once in Broadmoor) was allowed to see her notes by a GP. There were statements made by members of the family which caused the sister to write threatening vengeance. Suitably edited in accordance with Clause 6(2) the family members might be protected, but their children could be at risk. It might be further argued that perfectly applied Clause 6(1) and (2) provide the necessary protection.
As I have attempted to show, however, there are potential loopholes which could arise from inadequate editing. These could simply be dealt with by including an amendment on the lines that I have suggested. I believe that the Government might support such a safeguard because a recent DHSS consultation paper sent out in March 1988 about regulations under the Access to Files Act, says at paragraph 10:The regulations will enable access to be refused if it would be likely to result in serious harm to the physical or mental health or emotional condition of the individual requesting access or to any other person".I emphasise the addition at the end of the quote, "or to any other person"; and it is just such a phrase that I am seeking to add to the Bill.
Thus, knowing all the difficulties of amendments to Private Members' Bills from another place, I most sincerely hope that it will be possible for the Government to back a simple amendment on the lines that I have described when we come to the next stage of the Bill and will help the Bill if it has to return to another place through that process which I believe the Government can readily do if, as I suspect they might, they agree to what I am suggesting.
§ 6.38 p.m.
§ Lord Rea
My Lords, I wish to speak extremely briefly as a member of the profession most concerned in the Bill. The Bill will be very helpful and I fully support it. Here I am speaking not only for myself but for the British Medical Association, which I understand has been working on the Bill with the original sponsor in another place.
Many patients who give consent to the release of confidential information about themselves are not aware of the extent and the probing nature of the questionnaire submitted to their doctors. Access to such reports would improve their awareness and validate their consent.
There are just one or two points upon which I should like the noble Lord's comments. I am not sure 377 why the access is restricted to reports for employment or insurance purposes only: why not all reports which are prepared for patients by their doctors for a third party? Although most medical reports which are used for legal purposes are shown to clients, not all of them are.
Some reports to housing or social service departments are not made available; perhaps they should be. Can we be sure that the provisions in Clause 4, which require a delay of up to 21 days in the submisson of reports when access has been requested, do not unduly delay the sending off of those reports? Usually I am under pressure from the patient himself to produce the report absolutely as soon as possible, because a mortgage or a job may depend upon it. Is it not possible that by requesting access, a delay, possibly unwittingly, might be incurred? Could the noble Lord say whether pressure by the requesting firm or person might in fact dissuade a patient from requesting access to a copy of his report?
One small and useful aspect of the Bill is that it will require medical practitioners to keep a copy of the report they make for at least six months. This is useful not only for purposes of the Bill but also for the clinical records, because the report often provides a useful summary of the patient's medical history to date.
I should like to make one last point on Clause 6. I think it is essential to allow the withholding of information in certain cases. It has to be inserted for the very small number of patients who might be damaged by hearing or reading some bad news about themselves which has so far not been given to them. This would concern only a very small proportion of patients, certainly in my own case; but I think it has to go in.
I may have missed the point made by the noble Lord earlier in his introduction of the Bill but at the end of Clause 6(1) it refers to a medical report whose disclosure:would indicate the intentions of the practitioner in respect of the individual".One can think of all sorts of things that that might mean. Could the noble Lord perhaps spell out what is actually meant by these words in the Bill? I think that this is a very useful Bill and I intend to support it fully.
§ 6.43 p.m.
§ Lord Ennals
My Lords, I do not need to add much to what has already been said. I very much welcome this Bill and congratulate Archie Kirkwood on introducing it in another place and the noble Lord, Lord Tordoff, on introducing it here in a somewhat amended form following its passage through the other place.
Until I read the report of the debate, I had not fully realised the importance of this small piece of legislation. I had not clearly thought, as I should have done, that when any of us applies for a life insurance policy we are in a sense giving permission for information to be made known to other people that we may not precisely know ourselves; nor would we realise how many people may be involved.
378 It is essential that we should at least have the protection of being able to see the information which is being passed from one person to another, particularly as, as the noble Lord, Lord Tordoff, said, there may be a mistake. It could be that the information given not only includes something about another person but may contain something which is quite incorrect about ourselves. We simply would not know that such information had been passed on and we do not know what has been passed on. It is absolutely essential that such problems are dealt with. The doctor may have mixed us up with another patient or he could have made some reference about sexual behaviour or drug addiction which could be extremely damaging whether or not it is true.
The purpose of the Bill is absolutely right and it may be that as a result of the representations that I am sure several of us will have received from the British Insurance Association some amendments may need to be introduced.
I heard the point that was made by the noble Lord, Lord Mottistone, who is not in his place at the moment. I would not wish to comment on the point made by the National Schizophrenia Fellowship without studying it more carefully. I would be concerned if anything were done in this House that would prevent the Bill achieving Royal Assent. We would have to look very carefully at an amendment proposed at this stage, bearing in mind that any amendment approved by this House would have to go back to the other place. It is perhaps a pity that any such changes could not have been introduced in another place. However, I am encouraged to know that the Bill at this stage has the approval of the BMA, and if there have to be amendments we will look very carefully at them from these Benches. I hope we can pass this Bill, which is already a compromise Bill, pretty rapidly through your Lordships' House.
§ 6.46 p.m.
§ The Earl of Arran
My Lords, perhaps I may begin by paying tribute to the noble Lord, Lord Tordoff, who has given us such a clear and lucid explanation of the Bill, and to the honourable Member for Roxborough who introduced this Bill in another place.
Although the Government would not have chosen to legislate in this area, they believe that as a matter of principle people should have the right to know what is recorded about them. Where somebody finds that information is incorrect or misleading, it is only right and proper that they should have the opportunity to amend or modify that information.
The Bill provides for individuals to have the right of access to medical reports relating to themselves provided by medical practitioners before they are passed to a prospective insurer or employer. Where considered necessary, the individual has the right to amend the report or even prevent it being sent. This Bill is confined only to reports prepared by the medical practitioner who is or has been responsible for the clinical care of the patient.
The medical history provided in those reports prepared for employment or insurance purposes will 379 be reflected in an individual's medical record. The Government gave an undertaking last year that they would enter into talks with the medical profession with a view to opening up medical records to patients on a non-statutory basis. This Bill comes at a time when such talks are taking place, and indeed had they been completed it may not have been necessary. It is nevertheless compatible with our general philosophy and we do not therefore seek to oppose it. The complications of trying to legislate on even this limited front are illustrated by the Bill before us. In many ways the practical difficulties of implementing a Bill of this kind confirm our belief that the non-statutory approach is to be preferred if at all possible.
The Government have an interest in seeing that legislation that reaches the statute book is satisfactory. We wish this Bill well in its passage through your Lordships' House and we shall be taking advice to see whether any technical deficiencies exist in its drafting which can be put right at Committee stage.
In the meantime I can confirm to the noble Lord, Lord Tordoff, that it is the intention to apply the Bill to Northern Ireland by Order in Council once it receives Royal Assent. Furthermore, in response to my noble friend Lord Mottistone, we shall be looking at the points made by him before it is considered in Committee.
§ 6.49 p.m.
§ Lord Tordoff
My Lords, I am most grateful to everybody who has joined in the debate today on this short but important Bill. The noble Lord, Lord Mottistone, has clearly raised an important point and one which I should like to take away and look at to see what might be done. My initial feeling is that perhaps it is covered by Clause 6(1) and (2), but if I am wrong about that let us by all means find some way of covering it. I believe also that his comment is probably more applicable to medical records than to a report of this kind where the whole record would be exposed and quotations from other people may be seen and need to be expunged. It is less likely that such quotations will be contained in a medical report, but we shall look at the matter and see what can be done.
I am grateful to the noble Lord, Lord Rea, who raised the question of housing and social services and other matters about which I spoke. It is a fact that we must go step-by-step and it is foolish to try to educate too many government departments at once. Once one moves away from the step-by-step approach, one often finds oneself in the crossfire of a number of interested parties. To a certain extent that occured between the BMA and the insurers, but I believe that we have come through that all right.
The 21 days' delay is as much in the hands of the applicant as anyone else. It is a maximum period of 21 days. If the applicant is in a tremendous hurry to obtain the results, he can see them as soon as he is in a position to see the report. In other words, once the doctor has produced the report, it should be possible for the person to see and agree it. It can then be sent off straightaway and there is no question of having to delay for a period of 21 days. That is the maximum 380 period during which the doctor may have to hold it back in order that access might be given.
Clause 6(1) indicates the intentions of the practitioner. Apparently it contains some kind of magic wording from the Data Protection Bill. It was not included by us but at the suggestion of the Government. I cannot pretend to be an expert on the subject in the way in which the noble Lord, Lord Mottistone, is; but I gather that it is a formulation which needs to be included.
I am grateful to the noble Lord, Lord Ennals. I am glad that now he has read the debate which took place in another place he realises that the issue is perhaps more important than it appears at first sight.
The Minister said that the Government prefer a non-statutory approach. I should like to think that that is true, but I fear that there must be carrots and sticks in such matters and this is a fairly gentle stick. If by the passage of this modest measure we encourage the medical profession to move more quickly into a non-statutory situation regarding other matters connected with medical records, the Bill will have achieved a bonus. However, the Minister rightly says that that is not incompatible with the kind of approach that the Government are making. I am grateful for his comment on Northern Ireland and the Order in Council.
I am grateful to all noble Lords for their participation in the debate.
On Question, Bill read a second time, and committed to a Committee of the Whole House.