COMMONS AMENDMENT (Hansard, 17 June 1999)

§ Baroness Hayman
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 26. In moving this amendment I shall speak also to Amendments Nos. 27, 29 to 49, 76, 87 and 91.
These amendments deal with a variety of issues regarding the provisions in the Bill designed to drive up quality. Those issues are: the addition of further NHS bodies to which the duty of quality applies; joint working arrangements between the commission for health improvement and the Audit Commission; arrangements between the commission and Ministers of the Crown regarding other publicly funded health services and measures to clarify and strengthen the provisions on the accessing and disclosing of confidential information by the commission. I shall briefly address each of these matters in turn.
Amendment No. 26 extends the bodies to which the duty of quality in Clause 16 applies to include health authorities, in addition to NHS trusts and primary care trusts to which it already applies. It is in line with 451 amendments debated during our own consideration of this clause, and has been largely prompted by that debate. We have no wish to be inflexible where we can see genuine scope for improvement.
We acknowledge that some health authority activity may be regarded as healthcare provision within the scope of the definition set out in the Bill. We have already made clear in guidance that we expect clinical governance to apply to health authority functions, such as communicable disease control. We believe that these are important and should be included within the scope of the statutory duty.
Amendment No. 76 applies the duty of quality for Scotland, set out in Clause 45, to the Common Services Agency of the NHS in Scotland. The agency is an integral part of the NHS in Scotland, providing a range of support services and activities which touch more directly on the treatment of patients; for example, breast and cervical cancer screening in Scotland.
Amendment No. 29 provides for joint working between the commission for health improvement and the Audit Commission. In A First Class Service the Government made clear that the commission for health improvement and the Audit Commission would be expected to agree a joint programme of national and local reviews in a way which makes best use of their particular expertise and combined resources.
I also recall that at Second Reading the noble Lord, Lord Clement-Jones, questioned what the relationship will be between the Audit Commission and the commission for health improvement. We believe that if your Lordships accept this amendment, it will be close and productive, not only for both commissions but also, and perhaps most importantly, for the NHS.
Noble Lords will know that the Bill provides for levels of assistance and partnership between the commission for health improvement and other bodies, but this does not allow for joint studies or joint reporting arrangements.
The amendment provides for joint reviews in two broad areas: first, joint reviews covering clinical governance and organisational risk, and, secondly, covering reviews of national service frameworks and value for money studies. In these joint studies the commission for health improvement will concentrate on clinical matters and the Audit Commission on those areas where it has longstanding expertise.
Subsection (2) of Amendment No. 29 provides for the commission to assist the Audit Commission in its wider programme of value for money studies by providing informed clinical expertise. The amendment also makes provision for joint reports and the recovery of costs by either commission for any assistance given to the other. The Audit Commission has expressed enthusiasm and commitment to working with the commission for health improvement and has given a particularly warm welcome to this provision.
I turn to Amendment No. 30. This enables Ministers of the Crown or a Northern Ireland Minister with responsibility for the provision of publicly funded healthcare services to enter into arrangements with the commission for it to perform functions in relation to 452 those services. The amendment has been designed with three such health services in mind: the Northern Ireland Health Service, the Prison Medical Service and the Defence Medical Service which provides healthcare to members of the Armed Forces. However, the amendment is not limited to these health services.
Those Ministers with responsibility for the provision of these services may consider that the commission can make a valuable contribution in raising the quality of services. Where they wish to do so, we believe it is sensible to provide for arrangements to allow access to the commission's expertise. Amendments No. 87 and 91 are consequential to this amendment to ensure that it works properly.
Amendment No. 27 amends Clause 17 and is consequential to Amendments Nos. 29 and 30. which I have discussed. Those provide for joint working between the commission and the Audit Commission and for arrangements between the commission and Ministers of the Crown. Clause 17 establishes the commission for health improvement and gives it the functions set out in Clause 18. Subsection 17(2) states that the Commission is to have the functions conferred on it under Clause 18. The two new clauses confer additional functions on the commission. This amendment extends subsection (2) of Clause 17 to include those functions.
I turn to Amendments Nos. 31 to 49 on confidentiality. Noble Lords will recall that we had an important and well-informed debate on issues of confidentiality in relation to the commission for health improvement. The Government certainly share the concern expressed here that confidentiality is protected. Amendments Nos. 31 to 49 consist of drafting and technical amendments, an amendment to address your Lordships' concern about when individuals can be identified from various pieces of information and an amendment to address when information can be disclosed about a health professional's performance.
The drafting amendments, Amendments Nos. 31 to 41, 43 to 45, 47 and 49, attempt to clarify and tighten the provisions in Clauses 19 and 20 to give greater protection to the confidentiality of individuals. They also address some technical legal points.
On more substantial amendments, noble Lords will recall we debated the issue of confidential information being disclosed that of itself does not identify but, when taken in combination with other information, reveals or helps to reveal an individual's identity. Concern was expressed about the possibility of this scenario and I gave a commitment to look at these concerns.
I believe that Amendments Nos. 42 and 48 now adequately address those concerns. In combination they make it a criminal offence to disclose confidential information which would enable an individual to be identified from the information or from that information in combination with other information disclosed by the commission unless that disclosure is made with lawful authority.
Finally, on confidentiality, there is Amendment No. 46. This amends Clause 20(5)(g). The existing provision was intended to permit disclosure where there were concerns about a health professional's performance. 453 However, in looking again at this provision we were concerned that the existing provision may be interpreted too narrowly; for example, only allowing disclosure of such confidential information in relation to a formal assessment of the health professional's performance.
In practice, this could mean that the commission could disclose such information to a regulatory body only where that body was already conducting an inquiry into the performance of the health professional concerned. Therefore, the commission would not be able to disclose such information to an employer or an appropriate regulatory body where it had emerged in the course of a review or investigation. This would hamper the commission's efforts to help to nip problems in the bud by informing relevant bodies of possible problems. Amendment No. 46 addresses that particular problem.
I am pleased to say that following discussions we have had, both the GMC and the BMA are content with this amendment, which brings the commission's operation into line with the GMC's code of conduct. The regulatory body's code states that a health professional must disclose information about a colleague if there is serious concern about his or her performance, conduct, or fitness to practice.
In previous debates on this Bill your Lordships expressed support for the provisions to improve quality in the National Health Service, although in characteristic fashion the House gave way to attention to detail. The result has been to help the Government to make many improvements in this and in other areas. These are a group of amendments which fall in that category and I hope that noble Lords will be happy to accept them. I beg to move.

Earl Howe
My Lords, I should like to express my particular thanks to the Minister for Amendments Nos. 42 and 48 which respond to concerns expressed by my noble friend Lord McColl at earlier stages in the Bill that if the commission wishes to disclose confidential information about a person, it should ensure that that person cannot be identified from that information in combination with other information it has disclosed. It is good news that the Government found a form of words to address that concern and I am sure that all noble Lords will be pleased to see these new clauses in the Bill.
Perhaps I can ask the Minister one question relating to confidentiality as it applies to deceased persons. Is she in a position to update the House any further on the Government's thinking in that area?

§ Lord Clement-Jones
My Lords, I add my thanks to the Minister and my support for this important set of amendments, again particularly Amendments Nos. 42 and 48, bringing the duties of the medical profession in line with the GMC's code of practice. They are very welcome. Amendment No. 29 was unexpected. It does a good job of clarifying the relationship between the 454 Audit Commission and CHI. It is always nice to be reminded of what one said in Committee even though it was some time ago—or feels as though it was.
There is the loose end on information relating to deceased patients. I understand that further consultation with the medical profession has been promised by the department and it will be useful if the Minister can describe the current state of play.

§ Baroness Hayman
My Lords, I am grateful to both noble Lords for their welcome for what we have been able to achieve. They are right to pinpoint the issue in relation to safeguards on information relating to deceased persons. We gave that matter specific attention and discussed it with the professions. It is a complicated area and we came to the conclusion that it would be inappropriate to use this Bill to make provision in that regard.
This is a complex area that goes far wider than the Bill. It needs to be tackled in the round, if that is seen to be necessary, rather than piecemeal in provisions that relate to the commission for health improvement. We hope to be able to develop guidance on the handling of confidential information in consultation with the professions. We will be keeping this under review to keep it in line with current law and practice, and the guidance issued by the professions. It is possible, as noble Lords will be aware, that directions can be issued to the commission on specific issues if that should become necessary.
There are real reasons—for example, the fundamental lack of legal clarity on how far the duty of confidentiality extends after death, if at all—that make this a complex area to tackle in the context of this Bill. But I accept that the wider issue needs to be considered and we hope to continue to do that with the professions.