Patient Confidentiality

HL Deb 05 May 1993 vol 545 cc778-96

8.7 p.m.

The Marquess of Reading rose to ask Her Majesty's Government how they propose to resolve the difference in priorities between the Department of National Heritage and the Department of Health with respect to patient confidentiality and the media in the context of the Patient's Charter.

The noble Marquess said: My Lords, the Question I put before this House hinges upon a most important principle—a universally accepted principle that pre-dates the National Health Service and even our own system of parliamentary democracy. It is a principle, however, which is regularly flouted by the press in pursuit of cheap headlines and increased circulation. It is flouted most shamefully when the press choose to focus upon those who are most vulnerable, often obtaining what should be confidential information by devious means.

I speak of a matter which has been drawn most forcefully to public attention by the Matthew Trust, whose advisory council I am proud to chair and which has pioneered reforms in the way in which the mentally disordered are regarded and treated.

On 10th March this year, in this House, with support from the Special Hospital Service Authority, the trust called a Forum on Press and Patient Confidentiality. I was privileged to be among more than 100 representatives of the medical and legal professions, the caring services, the media and the main political parties who took part. The trust director, Peter Thompson, chaired this comprehensive review of the issues raised, on the one hand, by the need for press freedom in a democracy and, on the other, by the need to protect the rights of the individual, particularly with regard to medical records. Dr. James Appleyard of the British Medical Association underlined the need for a Department of Health code of confidentiality, especially as the new referral procedures in the health service effectively increase the range of people with access to patient records. It is a call the BMA has been making for many years.

As happened when the trust investigated the newspaper ombudsman system in relation to complaints from the mentally unwell, there was overwhelming acknowledgement that a problem exists which simple remedies might cure. The missing link is the political will to afford protection to the vulnerable.

These days we have a Patient's Charter to assist us in our dealings with the National Health Service. It grants us access to our own medical records, reminds the NHS of its legal obligation to keep them confidential and assures us that our privacy will be respected. That is all well and good so far as it goes. But what protection do we, or those who suffer mental disorder, have from breaches of this charter? More significantly, what protection is there for patients in special hospitals like Ashworth, Rampton and Broadmoor, which I am visiting this coming Friday?

The press display an unhealthy interest in their predicament because of the notoriety surrounding the distressing consequences of their behaviour. A hospital is a place of healing, and any cure, especially for severe psychiatric disorder, requires peace and trust and consistency of care. Breaching confidentiality does more than just cause distress to the patient, to relatives and to friends. It undermines that fundamental principle of trust. And what redress is there when someone's life is damaged by irresponsible, not to say inaccurate or sensational, reporting? At present there is none. Those with means might sue for libel. That option is not open to the mentally ill. Does their disability render them fair game for the press? Their only protection resides in a document which was issued by the then Ministry of Health 37 years ago. Approved by medical and media professionals at a conference on 16th May 1956, it offers guidance to hospital staff about their dealings with the press.

Much has happened since then in the NHS, in our understanding of mental health issues and, not least, in the behaviour of the press. Over the past few years we have seen increasing public concern about the press, particularly over invasions of privacy and breaches of confidentiality. Since 1989 there have been no fewer than four investigations into the indecent enthusiasm of the press for muck-raking in pursuit of profits. The findings of the National Heritage Select Committee hearings on this topic were published earlier this year on 16th March.

Mr. Clive Soley MP held special parliamentary hearings about the press last December. His report refers to the tragic suicide of the 19 year-old television actor David Scarboro, a star of "Grange Hill" and "East Enders", who was forced to abandon hospital treatment for mental illness after sensational stories in the gutter press. And it tells of bizarre efforts by the tabloids to turn the visits of a serious researcher to the murderer, Peter Sutcliffe, into a British version of the "Silence of the Lambs". Indeed, a recent book about Peter Sutcliffe contains photographs obtained by clandestine means inside a special hospital.

We still await a formal response to Sir David Calcutt's second inquiry into press invasions of privacy. It is not expected until the debate surrounding Mr. Soley's Freedom and Responsibility of the Press Bill is concluded in July. Yet on 29th June 1992, in this place, the Minister told us that the outdated 1956 guidance note for hospital staff was under review and that a consultation paper would be issued shortly. We are still waiting.

Correspondence which the Matthew Trust has had from the Department of Health and the Department of National Heritage suggests that a conflict of responsibility lies behind this inordinate delay. The priority of the Department of Health must be to protect the confidentiality of patient records. However, the priorities of the Department of National Heritage are quite different. There is an apparent reluctance to offend the press by imposing restrictions on their methods of operation. Surely a conflict of departmental interests should not be allowed to stand in the way of measures to protect the vulnerable from abuse.

I respect the work of the media and would not wish to hamper their ability to investigate matters of public concern. But I do object to their abuse of the rights of the mentally ill. Parading the private tragedies of the sick in public is no less abhorrent than seeking entertainment by visiting Bedlam, as happened in less enlightened times. Political expediency may yet allow the mentally ill to be sacrificed in an effort to curry favour with the press.

Indeed, we are faced with an extraordinary situation. in a television interview at last year's Conservative Party Conference, the Secretary of State for National Heritage pre-empted Sir David Calcutt's findings by saying that a free press should remain unfettered. The press may warm to the idea that they will emerge unscathed from a storm of criticism, but it is cold comfort to those who fall foul of their morbid fascination with mental disorder.

My question is simple: how is this apparent impasse to be resolved? In my considered opinion, and that of the Matthew Trust, a joint working party should be established to consider how best to protect patient confidentiality. It should include medical staff and representatives of all those who come in contact with patients and their records, voluntary agencies with a special interest like the trust and representatives of the press and other media. Their task should be to devise a simple formula which will, first, inform patients and their relatives of their rights; secondly, inform hospital staff of their responsibilities to patients, including the right to make public the shortcomings of the NHS when their superiors refuse to listen; and, thirdly, enable the press to fulfil their responsibilities without infringing the rights of patients.

Much of the discussion about how this can be achieved has already taken place. With good will the outcome of the deliberations might be available before government announcements about press regulation, and a revised Patient's Charter and guidance to hospital staff would assist the Press Complaints Commission to improve the newspaper industry's code of conduct.

This in turn might help the Government out of their current impasse. I look forward to hearing that the Minister intends to adopt that course of action.

8.18 p.m.

The Earl of Longford

My Lords, I rise to offer very sincere support to the noble Marquess who has just addressed us in such an attractive and moving way. I agree that part of my motivation for speaking is that the inspiration for this debate comes from the Matthew Trust and its founder and director, Peter Thompson, who has been my friend for more than 30 years. I have said before, and I say it again now, that within my knowledge no individual has done as much for the mentally afflicted as Peter Thompson. I couple with the name of Peter Thompson that of Elly Jansen. Like Peter Thompson, she started without any resources at all. She has built up quite an organisation which has become worldwide. It is the Richmond Foundation. We read that she has been troubled in recent years, but I know that all who care for mental patients will never fail to pay tribute to her integrity and achievement on behalf of these same mental patients.

I know that the Minister, so exceptionally well-qualified in this field, is well aware that this issue is of very wide concern. I had not myself realised quite how wide the interest was until the conference the other day which was held here. I had the honour of being the host. It was a conference that dealt with the topic we are discussing this evening. It was attended by representatives of every sort of health organisation, including two representatives from the Minister's department. I have no doubt that she will receive favourable reports.

Perhaps I should now turn to the subject of the Unstarred Question. I do not wish to make a general assessment of the role of the media in our society today. However, it happens that this morning I received a copy of a speech that was delivered by someone I should like to think of as a friend of mine —I hope that he will say the same about me after these remarks. I refer to Mr. Andrew Knight, the executive chairman of News International, which controls The Times, the Sunday Times, the News of the World, the Sun—never forgetting the Sun—and Today. No doubt it also has other interests. Mr. Knight began his important speech the other day by announcing that we in Britain have the best media in the world. I suppose that in the general sense of saying that everything British is better than anything else, one can go along with that opinion. Personally, I do not have enough worldwide knowledge of the media in the remote parts of this planet to know whether that is true. All that one can say is that one will not hear very good remarks made about the tabloids in this House. When I opened a debate on them some years ago, it was thought that they had gone downhill. Most people now feel that they have gone further down that road. However, as an inveterate reader of The Times, I am not going to say that Mr. Knight was necessarily wrong.

I must, however, narrow the discussion. On another occasion we can have a general debate on the role of the media, about which the noble Lord, Lord McGregor of Durris, who is to follow me, is an expert. Are they behaving well towards the Royal Family? The answer must be no—there is no question about it. Are they behaving well towards anybody? That is another issue which might profitably be discussed. Are the media behaving reasonably towards the most vulnerable members of our society, the subject of this Unstarred Question and the people upon whom we must try to focus? To say the least, there are clearly grounds for disquiet.

The issue before us is not an easy one. Last November I opened a debate, which was replied to by the noble Baroness, on the Blom-Cooper report on Ashworth Hospital. We had to agree that, in one sense or another, the media did a good job in bringing out many of the things that were going on at Ashworth Hospital which would not otherwise have seen the light of day. The Blom-Cooper report followed, and great improvements are now afoot. I hope that they will come to fruition. I do not say that every time the media take an interest in what is going on in these places they are necessarily wrong. However, as anyone who is involved in these matters knows, there are many examples of the media behaving indefensibly. The noble Marquess referred to one or two.

I have had some experience over the years with prisons, which are not exactly our subject tonight, and with special hospitals, which are. Many is the time I have arrived at the scene to find a representative of one of the tabloids awaiting me. On leaving, the representative has been quick to ask me whether there is anything of interest to report. Perhaps as an elderly public man I should not complain too much about that, but the real question is whether that degree of nosing into the affairs of people who are suffering greatly from some awful mental illness is legitimate.

I shall give only one example. I have visited Ashworth Hospital many times. On one occasion not so very long ago —but before the Blom-Cooper inquiry—I found some difficulty in conversing with a security officer behind a glass window. It was difficult to discover exactly what he was demanding of me. I had a plastic bag with me containing some letters from a particular patient. I could not understand whether the security officer was saying that I should not take the plastic bag in because the patient might put it over his head and commit suicide or what he wanted me to do. The conversation came to an end eventually and I saw the patient. The News of the World carried a story that I had assaulted the security guard. In a sense, I suppose that it was a tribute to my prowess to say that an octogenarian could assault a virile young fellow through a glass window, but that was an impossibility. One may say, "How can that story get about?" Obviously it was through some mole who either told somebody after the event or had somebody watching the scene. I have experienced such things a great deal.

Therefore, when I say that I am calling (as I shall be in a moment) on the noble Baroness to lay down guidelines, one has to admit that, with the best will in the world, guidelines will not always be followed. One must accept such things and look at the matter realistically. At the same time, however, some guidelines are better than no guidelines and good guidelines are better than bad guidelines.

We are all waiting eagerly to hear from the noble Baroness because some time last year she indicated —I do not know whether she promised, but she held out the hope—that guidelines would be made available. I think that that is right. At any rate, a consultation paper was to be made available to us, but that has not happened. No one in the world is more likely to be able to extract satisfactory guidelines from the Department of Health (although it might be a little awkward) than the noble Baroness. I hope and pray that she will not fail to help us tonight with new guidance, whether or not that takes the form of official guidelines. If she does fail, I know that it will not be her fault, but I hope and pray that she will not fail.

8.27 p.m.

Lord McGregor of Durris

My Lords, I am intervening in the debate only in order to report to the House the experience of the Press Complaints Commission in dealing with complaints about the sort of behaviour which was spoken of in highly general terms by the noble Marquess and in similar terms by the noble Earl. The code which the commission upholds is precisely concerned to maintain the rights of individuals in the field which is of concern to the noble Marquess. One difficulty about that field is that there is much more generalised concern than there are actual complaints about instances of bad behaviour.

Perhaps I may take the case of the Matthew Trust and the report it published in 1992 about which the noble Marquess and I have corresponded at some length. In my opinion, the report, which dealt with the way in which the press treated mentally disturbed and distressed citizens, contained a large number of inaccuracies. Those were discussed with the trust. The commission is most concerned to assist bodies like the trust in protecting citizens for whom it takes responsibility. In fact, a complaints body can only deal with complaints that are made to it.

Over the past two-and-a-half years, the trust, which in its report condemned the conduct of the commission and the way it dealt with complaints, submitted one complaint to the commission. That complaint was dealt with, though not to the satisfaction of the trust. Those whom the trust cares for are frequently not in a position to make complaints on their own behalf. We have told the trust, as we have told a large number of other voluntary bodies, that we shall be happy to take third-party complaints in respect of breaches of the code of conduct by newspapers. That offer to the trust has produced one complaint—and, I repeat, one only.

I turn now to the invasion of privacy by the publication of material derived from medical records. In advance of this evening's debate, I had a search made through all the complaints made to the commission. In this field we have received only one complaint about the publication of medical records. We broke our rule that we would publish all our adjudications and findings in that case and treated it anonymously at the request of the complainant. It was a reasonable request because publication would necessarily have involved revealing medical treatment. The commission required the offending newspaper to apologise in writing to the people who had suffered. That was how that single instance was dealt with.

The commission has been at great pains to put its facilities at the disposal of voluntary bodies and to publicise its activities. All that I can report to the House in respect of the subject matter raised by the noble Marquess is that there does not appear to be evidence of substantial complaints among members of the public or among voluntary bodies. Alternatively, if such complaints exist, they are not brought to the commission where they can be remedied.

The Earl of Longford

I wonder whether the noble Lord will permit me to intervene?

Lord McGregor of Durris

Of course.

The Earl of Longford

I must be careful about phrasing my question because it could be offensive. However, does the noble Lord realise that there is not as much confidence in his own commission as he would wish existed?

Lord McGregor of Durris

I have confidence in the commission and the way in which it deals with complaints. However, I repeat: we can only deal with complaints that are made to the commission.

The noble Marquess has been in fairly regular touch with the commission over a period of time. He knows that we exist and that we have undertaken to deal with any complaints made to us by the Matthew Trust. The trust has made one single complaint in the face of the generalised record of abuse which the noble Marquess presented to the House. I cannot assist the House in matters affecting the department, beyond saying that if there are any consultations to which the commission can contribute and if there is any assistance that we can offer to the Minister's department in dealing with such matters affecting the press, we shall be only too happy to do so.

In advance of any such consultations, I emphasise that the code of practice that exists covers the revelation of medical information which would in almost every circumstance be condemned by the commission. Certainly, in respect of putting voluntary bodies and the department in touch with newspapers that are regarded as offending in that respect, the commission will be only too happy to put to the relevant bodies in the industry proposals for improving or changing the code of conduct.

I very much regret the manner in which the noble Marquess made his accusations against the press. I also very much regret the manner in which the Matthew Trust (which the Press Complaints Commission has been at great pains to assist in pursuing its work) has been unwilling to use the facilities offered to it by the commission.

8.37 p.m.

Lord Thomson of Monifieth

My Lords, I do not wish to intervene in the dispute that has just taken place across the Floor of the House between my noble friend Lord McGregor of Durris, the Chairman of the Press Complaints Commission, and the noble Marquess, Lord Reading, about the volume and character of the complaints that lie behind tonight's debate. For my part, I am reassured by what my noble friend said about the volume of those complaints. But, nevertheless, as the noble Earl said, I think that there is a general concern about the area. The noble Marquess was correct to raise the debate on the general question of a patient's right to confidentiality. That is particularly acute where one is dealing with the most vulnerable kinds of patient with mental illness in secure hospitals. It has become clear from the speech made by my noble friend Lord McGregor that that is part of a much wider debate on the rights and responsibilities of the press in a democratic society.

I hope that arising finally out of the exchanges that have just taken place, it may be generally accepted that, fortunately, this area ought to be an aspect of that general question which attracts less controversy and is more specific and manageable than protecting the private lives of politicians, princes or princesses. Of course, tonight's debate is a continuation of the one raised on 29th June last year by the noble Lord, Lord Carter. When replying to the debate the Minister, the noble Baroness, Lady Cumberlege, drew on a previous experience as a district hospital chairman and member of the former Press Council. I hope that she will not take offence if I say that I believe that she got the balance right between patient privacy and public accountability. Her speech was positive and promising; but, as has been drawn to her attention, the promise has still be be fulfilled. She said: It is widely recognised that the guidelines are 36 years old and I am pleased to announce that new guidelines are being prepared and will be issued shortly for consultation". — [Official Report, 29/6/92; col. 636.] Your Lordships are entitled to discover from the Minister tonight how short is "shortly".

That kind of delay appears to be par for the course in relation to the Department of Health. The delay that we have suffered since our last debate is nothing compared with the delay described by Dr. James Appleyard, chairman of the BMA's representative body at the forum to which the noble Marquess referred. According to information provided to me by the Matthew Trust, Dr. Appleyard reported that a draft guide of confidentiality was drawn up in 1984 following the Data Protection Act of that year. That code of confidentiality was drawn up by the DHSS as it then was, and the Intra-Professional Working Group, which included the BMA and Sir Douglas Black, President of the Royal College of Physicians. Nine years later that draft code remains filed away somewhere in the Department of Health, even though the BMA again raised the matter in 1991. According to Dr. Appleyard, the BMA called the Department of Health on 9th March only to be told that the department was still working on the problem. Therefore, delays appear to be endemic at the Department of Health. We await with great interest to hear what the Minister has to say about progress on these issues, which are essentially for her department.

I do not underestimate the difficulties in the health service. Unfortunately, I was unable to attend the meeting referred to, but it was reported in the British Medical Journal. According to the report, Charles Kaye, chief executive of the Special Hospitals Service Authority, said that staff would be telephoned at midnight by journalists offering £4,000 for information on individual patients. I am sure that the chairman of the Press Complaints Commission will wish to know about that matter and inquire into it. Charles Kaye was worried about the damage that lurid press coverage could do to a patient's rehabilitation. He accepted the public's right to information about how patients could be treated and rehabilitated within the special hospitals and said: but we must ensure that we are not providing media access over general issues at the expense of individuals". That sums up the nature of the issue very well.

At the hospital end we need as quickly as possible updated guidelines and a strengthening of the confidentiality aspects of the Patient's Charter. The guidelines should be the subject of the widest possible consultation and, having been agreed, of the widest possible dissemination in order to take account of the fragmentation of the health service which is occurring with the new hospital trusts and fund-holding GPs.

It may be that the Minister has been the victim of the ambitions of her own department in respect of this matter. In the debate on 29th June in this House she said that the guidelines that are being proposed will be more comprehensive and will cover a larger remit than just information to the press. I wonder whether, given the concern that exists about tonight's matter, it might not be more worth while, without waiting for the wider and fuller guidelines, to concentrate on guidelines which deal merely with press intrusion.

It is clear that there will be the need for disciplinary action against staff who leak confidential information about patients to the press. However, as was said by the noble Earl, Lord Longford, moles are difficult to detect. Those of us who have served in government will know how difficult it is. If some newspapers are prepared to offer the difficult-to-resist bribes on the scale reported by Mr. Kaye, real action is required at the press end. That raises the wider issues of the Government's response to the second report of Sir David Calcutt's commission, which was published in January.

I must say to the noble Marquess that I do not believe that a theory of a cold war between the Department of Health and the Department of National Heritage is lying behind the problems. He described it more modestly as an impasse, which is the main thrust of the Question which he has tabled for Answer today. I simply assume that the departments have very different responsibilities and therefore start from different points of view.

However, one recommendation from Sir David Calcutt has particular relevance to the proper protection of patients' privacy. For the second time, and in his second report, Sir David Calcutt repeated the recommendation to which I drew attention last June. He recommended that a new offence of criminal intrusion into private property should be created. Calcutt specifically included hospitals within that recommendation. The Liberal Democrats, from whose Benches I speak, in their evidence to Sir David Calcutt strongly supported that course. I must say in passing that I am puzzled that in the Calcutt Report that clear recommendation is apparently to be confined to England and Wales. The Minister from the Scottish Office, who is a distinguished lawyer, has left the House but we all know that Scottish law is superior to English law. Nevertheless I hope that Scottish law will not be deprived of the advantages of such legislation when the Government finally pluck up the courage to introduce it.

Without widening the debate unduly I must add that in our evidence the Liberal Democrats came out against a statutory press tribunal, as recommended by the Calcutt Commission, or the introduction of a privacy law. We favoured a strengthened Press Commission and the consideration of a general tort of harassment, which would also be relevant to the problem that we are discussing tonight. I was happy to read in the press today—and I was a little disappointed that my noble friend Lord McGregor did not mention it—that the Press Complaints Commission has taken action in strengthening its own arrangements by ensuring that it has a majority of lay members with an independent chairman. It has also taken certain steps to deal with forms of intrusion such as long-range lenses. I am sure that that will be most welcome.

My experience of self-regulation, which I shared a great deal with my noble friend Lord McGregor, is that for it to be effective it must have at its disposal some kind of effective sanction to deal with serious breaches of a code of practice. We on these Benches proposed in our evidence to the Calcutt Commission that newspapers should provide a good performance bond related in size to their circulation which would be at risk if the commission found them guilty of gross misbehaviour. I should have thought that that might be relevant to the kind of misbehaviour reported by Mr. Charles Kaye.

The Government are properly reluctant to breach the principle of press freedom with a statutory tribunal. I strongly share the views expressed by my noble friend Lord McGregor on that principle. However, I was not clear whether the noble Marquess equally shared that attachment to the principle of a free press.

I commend the proposal that I have made about providing an effective sanction for a self-regulatory body like the Press Complaints Commission. I urge that on the special position of patients, particularly mental patients less able to look after themselves, the Government should make progress as quickly as possible. There seems to be no reason why there should not be a set of Department of Health guidelines which concentrate simply on relations with the press, without waiting for the Government's decision and possible new legislation on the greater generality of Sir David Calcutt's recommendations.

8.50 p.m.

Lord Desai

My Lords, we are grateful to the noble Marquess for raising this Question. We are not debating the general matter of freedom of the press, nor are we debating what kind of action the Government should take in response to Sir David Calcutt's second report. Quite specifically the Question asks: Her Majesty's Government how they propose to resolve the difference in priorities between the Department of National Heritage and the Department of Health with respect to patient confidentiality and the media". Within that context the noble Marquess has drawn our attention to patients with mental illness problems. I believe that we should confine ourselves to that because we are not discussing the general privacy of citizens. That is very important but it is not on our agenda this evening.

We are discussing mentally ill patients and what should happen about them. Should we do something special for them in addition to what we do for ordinary citizens? There is a principle involved here. Mentally ill patients are extremely vulnerable and are often unable to do very much on their own as regards having recourse to a complaints procedure and so on.

We must confine ourselves to what the Government are being asked to do. We must consider whether there are special problems relating to mentally ill patients. We must consider issues of confidentiality and press freedom in that regard. Many people have already quoted what the noble Baroness said last year in response to a debate in the name of my noble friend Lord Carter. She said that the guidelines would cover: the importance of preserving confidentiality, the responsibilities of all staff in the NHS for the management of health information and for controlling its use and disclosure and operational guidelines for preserving confidentiality and handling disclosures of health information".—[Official Report, 29/6/92; col. 6381 That is a very good coverage of the issues which are broadly at stake. Without adding further to the embarrassment of the noble Baroness, we await that statement.

I wish to go slightly further than that this evening. When the Select Committee on National Heritage in another place examined the question of privacy and media intrusion some useful remarks were made. One of those remarks, to which the noble Lord, Lord Thomson, referred, concerned the problem of prohibiting harassment and besetting. The committee in another place suggested that Section 7 of the Conspiracy and Protection of Property Act 1875 could be extremely useful because it deals with the problem of besetting. Many people who have experienced "door stepping" by the media will agree that it involves a great deal of harassment.

I agree with the noble Lord, Lord McGregor of Durris, that the Press Complaints Commission cannot deal with matters about which it has received no complaint. We should think more generally about that. We have a peculiar situation in which many people are dissatisfied but they do not register a complaint. The commission feels that it must receive a complaint before taking action—and yet, paradoxically, people are complaining loudly about the treatment of this or that Royal or this or that scandal. However, no formal complaint is made. Perhaps the Government should consider whether the commission's remit should be broadened so that it can initiate a complaint by itself. It can say to itself, "Although we have received no complaint, we do not believe that that behaviour is acceptable".

Lord McGregor of Durris

My Lords, I am grateful to the noble Lord for giving way. The commission has put itself in just that position in respect of the Matthew Trust. We have urged the Matthew Trust to send us every complaint which it has on behalf of any mentally distressed or disordered person. We have assured the trust that such complaints will be handled immediately. We have received only one complaint.

Lord Desai

My Lords, I am grateful to the noble Lord for that information. I am sure that that problem can be sorted out. However, over and above the Matthew Trust, I believe that a provision such as I have suggested should be available. There is a much greater level of dissatisfaction among the customers or the public than it is possible to record or report officially. There is a problem in that regard which we must think about.

Given the vulnerability and the many specific problems which the mentally ill have, I make only one suggestion. This will not be the responsibility of the Department of Health but rather it will be the responsibility of the Department of National Heritage, but, nevertheless, I shall put forward my suggestion. There is an offence of inciting racial hatred. Obviously the freedom of the press is restricted in that it is not allowed to report events which may incite racial hatred. I am not a lawyer and this is not a proper formulation, but we need a similar offence to prevent causing extreme distress. Press intrusion may even cause health problems. Of course, it may be inconvenient or annoying but it may also affect a patient's recovery. It may cause a relapse. I realise that legislation must be tightly defined. We do not wish to restrict press freedom, but we should consider whether certain forms of intrusion are damaging to the health of a patient, especially a mentally ill patient. Once again, I thank the noble Marquess for initiating the debate.

8.57 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

My Lords, I welcome the opportunity to debate the important issue of the media and patient confidentiality, especially in the context of the Patient's Charter. I have listened with very great interest to the speeches by my noble friend Lord Reading and other noble Lords who have participated in the debate, and I am conscious of the depth of knowledge within your Lordships' House both concerning the NHS but also the fourth estate.

When I first read my noble friend's Question, I must confess that I was baffled by it. The Question refers to, a difference of priorities between the Department of National Heritage and the Department of Health with respect to patient confidentiality and the media". I was aware of no such difference of priorities—nor were my ministerial colleagues in the Department of National Heritage. I am therefore grateful to my noble friend for shedding light on those issues.

From the start I can reassure your Lordships that there is no difference in priorities between the health and heritage departments. We are both committed to open government, to accountable management and to ensuring that patients' interests are protected from unwarranted intrusions by the media.

It may not be comfortable for the Government to have problems made public. I am not thrilled when a newspaper splashes a story of inefficiency, corruption or mismanagement within the NHS, but it is right that it should have the opportunity to do so. It is a job of the media, painful though it may be, to expose shortcomings and make the executive accountable but there is a wide and discernible gulf between policies, bad management and inefficiency both by governments and individuals in their working capacity, and the private lives of anybody whether they be Ministers, managers or a traveller on the Clapham omnibus.

I am conscious that the NHS should not be divorced from general rules that will govern the freedom of the press and the wider aspects of the intrusion into people's private lives; but I agree with the noble Lord, Lord Desai, that people in special hospitals need particular protection because of their extreme vulnerability. I am not convinced that they need different rules though, only the strictest application of the rules that apply to everyone.

As the noble Lord, Lord Thomson of Monifieth, mentioned, the debate that took place last June in which the noble Lord, Lord Carter, asked a question on the same theme, was a precursor of today's debate. My noble friend Lord Reading mentioned the one day forum hosted by the noble Earl, Long Longford, on patient confidentiality and the media. The forum was organised by the Matthew Trust and I am delighted that it attracted a wide audience from among health care and media groups. My noble friend Lord Reading and the noble Lord, Lord Thomson, gave examples of press intrusion which have given cause for grave concern. However, I must say, as a former member of the Press Council, I understand the view expressed by the noble Lord, Lord McGregor of Durris, that the commission generally has to act on complaints made to it.

The noble Lord, Lord Desai, expressed the public's general dissatisfaction with the press. I suspect, however, that there is some truth in the adage that I believe Tom Stoppard expounded: we all believe in the principle of the freedom of the press; it is just the newspapers that we do not like. This clearly is a matter of grave concern. I am therefore pleased to have the opportunity to explain the legal background and the Government's policy on privacy. It is well known I quote Lord Justice Glidewell in the Court of Appeal on 23rd February 1990 that in English law there is no right to privacy, and accordingly there is no right to action for breach of a person's privacy". Lord Justice Glidewell was giving judgment in the case of Gordon Kaye v. Andrew Robertson and Sport Newspapers Ltd.

Your Lordships will remember the case. A journalist and photographer working for the Sunday Sport had got into ward G in Charing Cross Hospital where Mr. Gordon Kaye, the star of the popular television series "'Allo, 'Allo" was lying in intensive care. Mr. Kaye was suffering from severe injuries of the head and brain caused by a flying piece of wood that smashed through the windscreen of his car.

The journalists apparently induced Mr. Kaye to say some words and they photographed him. Shortly after they left Mr. Kaye had no recollection of their visit and the medical opinion was that Mr. Kaye was in no fit state to be interviewed or to consent to it. Mr. Robertson, the first defendant and editor of the Sunday Sport, called his staff's achievement, a great old-fashioned scoop", and the court was able to grant only limited relief to the plaintiff.

The case, which happened while the privacy committee, under the chairmanship of Sir (then Mr.) David Calcutt, was sitting, may well have been decisive in prompting it to recommend criminal offences of physical intrusion with intent to obtain personal information for publication purposes.

Mr. Kaye was not the only celebrity in hospital to suffer from the attentions of the press at about that time. The late Russell Harty, and Mr. David Lewry, captain of the "Herald of Free Enterprise", also found that a hospital was not a safe haven.

The privacy committee recommended that the press should be given a last chance to prove that self-regulation, under a new Press Complaints Commission, could work. The newspaper industry duly set up the commission, under the distinguished chairmanship of the noble Lord, Lord McGregor, replacing the old Press Council, in January 1991. In mid-1992 the Government asked Sir David Calcutt to review its effectiveness. Sir David concluded that the Press Complaints Commission, as at present constituted, was not an effective regulator of the press. He recommended a statutory press complaints tribunal, the introduction of intrusion offences and four other measures bearing on privacy.

The Government accepted Sir David's assessment of the commission, urging it to give attention to the points he listed as its failings. The Government also accepted the five recommendations for protection of privacy, though we reserved our position on the tribunal for which, we consider, a more persuasive case would have to be made out.

I should add that we are also considering carefully the report of the National Heritage Select Committee which contains many recommendations for government and for the newspaper industry. We will respond to the committee in the normal way and hope at the same time to give our final response to the Calcutt recommendations.

The intrusion offences would make it criminal to enter or remain on private property, to place bugging devices, or to photograph or record someone's voice, without consent and with the intent to obtain personal information with a view to its publication. Sir David considered that "private property" should include, among other things, any part of a hospital or nursing home where patients are treated or accommodated", and that the courts should have power to restrain publication of information which had been illegally obtained.

These offences, which we hope to introduce at a suitable legislative opportunity, will not, however, stop responsible investigative journalism. As I said, it is the freedom—and some would say the duty—of the press to seek out the truth about unlawful, misleading or hypocritical conduct or statements.

The noble Lord, Lord McGregor, mentioned the industry's code which the commission upholds. The code requires journalists not to intrude into an individual's private life except in the public interest. Although I believe the code has been very useful in some circumstances, the Government consider that this form of regulation has not proved to be wholly effective. We believe the criminal law is necessary to prevent the most blatant and unjustified forms of intrusion.

On matters of policy the NHS should be entirely open and one of the most effective ways of countering negative publicity is to promote positive understanding of the hospitals and their work. The Special Hospitals Service Authority, which since 1989 has been responsible for the management of these hospitals, has rightly seen this as an important activity. Since its inception it has appointed press officers in each hospital and it has actively encouraged six separate television programmes describing its work. The authority has pursued a policy of inviting journalists to visit hospitals and to join in the debate on a wide range of professional issues. Indeed, today's Nursing Times carries an interview with the SHSA's head of nursing services about the work being undertaken in the difficult area of the use of seclusion.

However, while the authority is keen to invite the press to see and comment on its work, it will not sacrifice any patient to a one day's news sensation and has not hesitated to take firm action against any newspaper which has abused access to its hospitals or attempted to reveal the identity of patients without their consent. I endorse the view of the noble Earl, Lord Longford, that the services, the ethos and the whole atmosphere of the special hospitals has improved.

The Government attach the highest priority to the confidentiality of personal health information in the NHS. When patients visit their GP or hospital, they need to feel assured that the information given is treated in the strictest confidence. The same applies to the information recorded about them by health professionals and other NHS staff. Details of diagnosis and treatment are very sensitive. It is essential that all the information is held securely, and only made available to those who need to have it, in order to care for the patient and manage the health service.

All personal information held by the NHS is, of course, protected by common law. By "personal information" I do not mean only medical details. Names, addresses and other identifying details are all "personal information". The NHS, and those employed in it, have a duty under the common law not to divulge personal information to any third party —and this includes the media. Disclosures outside the NHS may only be made in strictly limited circumstances—such as if required by statute or court order, or if it can be justified in the public interest— for example, scientific research or to prevent serious risk to public health.

In addition, doctors and other health professionals have an ethical responsibility to safeguard the confidentiality of patients' personal information. This well-established right to confidentiality is, as my noble friend stated, enshrined in the Patient's Charter. The Department of Health also has long-standing guidance, issued in 1956, which makes it clear that information must not be divulged to the press without the consent of the patient. The need to get the patient's consent to the release of any information is absolutely fundamental.

In fact, I would want to tighten the safeguards still further. The Patient's Charter places great emphasis on the rights of the individual. The current circular states that hospitals may, in response to a, press inquiry, confirm that a named individual is a patient in the hospital. Even divulging that someone is in a hospital—without giving any further details—constitutes a breach of confidence, a point made very forcefully in your Lordships' last debate on this subject. The name of a hospital can in some cases lead to inferences of a very sensitive nature being drawn. No information should be released without the consent of the individual concerned.

As my noble friend Lord Reading, the noble Earl, Lord Longford, and the noble Lord, Lord Thomson, quite rightly reminded your Lordships, when we debated the issue last June I stated that the department would update its guidance on information to the press and re-issue it as part of a comprehensive document. I regret that that has not been possible. The preparation of the guidance has continued to raise a number of complex legal and data protection issues which are taking time to resolve. But I share the impatience of your Lordships' House and I am very anxious that we should at least progress the area concerning the press, as suggested by the noble Lord, Lord Thomson.

I am therefore announcing tonight that we shall publish, within a fortnight, draft guidance on this specific issue for comment. A copy will be placed in the Library of the House as well as being sent to various organisations, including the Matthew Trust, for their views. I also warmly welcome the offer of the noble Lord, Lord McGregor, on behalf of the Press Complaints Commission to contribute to our endeavours. When we have considered the responses we shall then issue substantive guidance to the NHS on that narrow aspect.

With regard to the comprehensive guidelines, mentioned by the noble Lord, Lord Desai, we are committed to issuing these for consultation as soon as possible, and our timetable is not governed by the Calcutt review and the Department of National Heritage's response.

There are one or two other points which have been raised this evening which I should like to pick up. The noble Lord, Lord Thomson, raised the question of sanctions against NHS staff for breaches of confidentiality. All NHS staff are bound by their terms and conditions of service to maintain confidentiality. Breaches may result in disciplinary proceedings, including possible dismissal.

My noble friend Lord Reading raised the BMA's concern due to the increased flow of information following the NHS reforms. In September 1992 the department issued guidance on the secure handling of confidential information in contracting. This requires purchasers and providers to set up safe havens for the handling of such information.

The noble Lord, Lord Thomson, also asked why we had delayed so long in respect of the 1984 guidance. I understand that guidance was drawn up in 1984 in advance of Sir Douglas Black's inter-professional working group and as a result of the work of that group, a further draft was prepared for the statute book. We sought comments in 1987 and again in 1989, but some professional bodies continued to hold reservations about the code. Legal advice is that a statutory code is unnecessary because the common law provides adequate safeguards for protecting the confidentiality of personal health information. We are therefore finalising draft guidelines, which draw heavily on the original code and, as I said, we shall issue them for consultation at the earliest opportunity.

In conclusion, I am grateful for the opportunity to discuss the issue which my noble friend's Question has provided. It is clear that the whole House shares the concern about press intrusion into patients' affairs. I hope that I have dispelled any misconceptions that there may have been about conflicting priorities. I assure the House that there is no conflict and that the Government will continue to do all that they can to protect the freedom of the press and the patients' right to confidentiality.

House adjourned at fourteen minutes past nine o'clock.