§ Mr. Graham Brady (Altrincham and Sale, West)
It is a pleasure to initiate this short debate this morning and I am grateful for the opportunity to do so. Only an hour and a half ago I sat down after winding up the debate on education in the cities, so I hope that the Minister will be generous if my thoughts are not quite as well collected as they should be.
This is an important subject, relating to an unintended consequence of the Data Protection Act 1998 for the work of hospital chaplains. My constituent, Rev. Graeme Skinner, the vicar of St. Mary Magdalene church in Sale, first raised the issue with me in March this year. He wrote to say that he was deeply concerned about the impact of the Data Protection Act on hospital chaplaincy. He described the Act as "a millstone" for the ministry and, since then, he has expressed the fear that hospital chaplaincy might be marginalized by the application of its provisions.
I should like to express my gratitude to several people in various churches who wrote to give me useful information and guidance in a complex area of law, especially Rev. Edward Lewis of the Hospital Chaplaincies Council.
In March this year I first raised my concerns on behalf of the Rev. Skinner with the Leader of the House, who kindly undertook to examine the matter further. He said that it was important thata law that was intended to protect our people benefits them rather than detracts from their quality of life."—[Official Report, 21 March 2002; Vol. 382, c. 441.]I wholeheartedly endorse that view which, if we can find our way through the current difficulties, should become part of the law.
I then pursued the matter with a letter to the Leader of the House, asking about the outcome of his further investigations. On Wednesday 24 April I received this response:Where a patient is incapable of providing consent, perhaps through serious or terminal illness, it is possible for hospital staff to disclose religious affiliation, as this may in the circumstances be in the best interests of the patient…The Department of Health is currently considering the need to issue guidance on this matter."—[Official Report, 24 April 2002; Vol. 384, c. 293W.]As the Minister knows, I pursued the matter more recently with her through questions to the Lord Chancellor's Department. On 11 June she said:The Data Protection Act does not prevent hospitals from passing on information about a patient's religion, but it states that they can do so only with the patient's consent or, if the patient is unable to give that consent, if it is in their vital interest."—[Official Report, 11 June 2002; Vol. 386, c. 713.]The question whether the law applies to hospital trusts in respect of whether they are permitted to pass information on to chaplaincies is complex. It is now causing difficulties for several trusts and they want to find a way through them.
216WH I received a letter from a hospital chaplain who told me that in answer to a question from my hon. Friend the Member for Stone (Mr. Cash), the Minister replied thatthe Department of Health's patient empowerment team is working on new guidance for chaplains with the multi-faith joint national working group"—[Official Report, 11 June 2002; Vol. 386, c. 714.]The letter continued that it was interesting to note that a member of the joint national working group knows nothing about such dialogue. There appears to be some confusion about the steps being taken, in good faith, by all parties to try to resolve the difficulties.
I hope that the debate will be an opportunity at least to begin to clear up the confusion that is impeding hospital chaplaincies in carrying out their ministry. I received a letter recently from the chairman of an NHS hospital trust in the north-west of England, which has encountered some difficulties in this regard, but has taken a clear stand that it will continue, as far as it is humanly possible, to pass on information about patients' religious affiliation or denomination to the hospital chaplaincies in whatever way it can. The letter states:One must wonder why legislation from the start of the NHS has demanded that the NHS employs chaplains of many faiths within hospitals. If they are not there to assist people in their mental or physical healing, and in their spiritual needs at the time of death, and if it had not been considered to be a vital part of support in hospitals then legislation would not have demanded their existence. The same of course applies to their role in prisons and other institutions.The current legal situation appears to be that, in ordinary circumstances, personal information, of which the religious affiliation or denomination of a patient may be an example, cannot be passed on to a third party without consent. In some interpretations of some aspects of the legislation, that requirement is qualified further, stating that explicit consent must be given. However, I understand that schedule 3 of the Data Protection Act 1998 provides the Secretary of State with powers to exclude the need for explicit consent which may, in itself, provide a way out of the problems that have arisen. The letter from the chairman of the NHS trust continued, compellingly:Our view is that we have a first priority to do whatever we can for our patients and of course for their carers and relatives. In our view we believe we should continue to assist the chaplains by providing information. I am taking advice from our lawyers on this matter and what steps we may need to take as a Board to record and minute this decision so that staff may act with proper authority and cover.The Minister, having had experience in the Department of Health as well as in her current brief, will be aware that the need to clarify the situation could be an unwelcome and costly difficulty for NHS trusts. Hundreds of different bodies within the national health service may need to seek guidance and take legal advice on the circumstances in which prohibition from passing on the information might apply.
The picture so far appears to be patchy. It seems that some trusts are proceeding as if nothing had changed, some are taking guidance about the fact that the law has changed and now applies to their actions, and are taking it very seriously, and others are deeply concerned that they get it right, but do not yet know the answer and are in a state of confusion. One way of ensuring that proper legal permission is obtained for passing the information 217WH to chaplaincies is to seek consent when the patient arrives at the hospital and the information is logged in. Again, however, it appears that the technology has not facilitated that in some circumstances, especially where computer technology is involved. I have heard of at least one instance where the software for the patient administration system—I think it is called that, but the Minister will know better than I do—would need to be changed to accommodate this factor. There are clear cost and time implications for trusts if they want to take this action. It is important that the Government give clear guidance on whether they expect trusts to take this route.
Some trusts are being as co-operative as they can and are seeking to help the chaplains to fulfil what I am sure we would all agree is a vital function to support some of the most vulnerable people at a time of great need. However, other trusts are being less co-operative. A hospital chaplain who has been having considerable difficulties wrote to me:Before February 2001 I did not have to worry too much about the Data Protection Act 1998. Until that time I had worked in an NHS Trust where Chaplaincy was well integrated and had a long and valued history. It was seen to be an indispensable part of the overall care team. I was designated chaplain to the oncology wards and participated fully in the inter-professional team meetings. There were no impediments to the flow of appropriate information to Chaplaincy. Then last year everything changed and I have been on a very steep learning curve!He goes on to point out that there are some remarkable discrepancies between categories of employees who may have access to the information. In some circumstances, the ward clerk or a receptionist may have access to information about a patient's religious affiliation, but the chaplain does not.
A key point arises about exemptions that can be applied under the Data Protection Act 1998. Two exemptions under paragraph 8 of schedule 3 cover the circumstances whereThe processing is necessary for medical purposes and is undertaken by—One could argue that both limbs would allow exemption for information to be passed to hospital chaplaincies. It could also be argued that the first limb applies. In 1998, Lloyd determined that "medical purposes" could be defined broadly to include
- (a) a health professional, or
- (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional."preventative medicine, medical diagnosis, medical researchand "the provision of care". Clearly, the chaplaincy provides spiritual care as part of a multidisciplinary team for someone undergoing treatment, and we need to be clear whether the first limb applies. There is a strong argument that the second limb of exemption applies.
There is a further complication that the restrictions imposed by the Act may conflict with the provisions of the Human Rights Act 1998, which gives patients the right, as enshrined in article 9 of the European convention on human rights, to manifest his or her religion in worship, teaching, practice and observance. The regulations may be in conflict with that right and may have serious consequences for minority faith groups such as Jews, Muslims and Roman Catholics. Many of those groups have particularly high 218WH expectations of chaplaincy support, not least the Roman Catholic community, especially in circumstances of serious illness.
I want to make sure that the Minister has adequate time to respond so I shall draw my remarks to a close. It is increasingly clear from the many representations that I have received—the Minister knows of such representations because she has told me in the House that several hon. Members have been in touch with the Department of Health or the Lord Chancellor's Department about such concerns—that there is a problem for hospital chaplaincies seeking to fulfil their ministry. The problem may arise from confusion or from a lack of clear, robust guidance from the Department of Health, the Lord Chancellor's Department or the data protection registrar. There is urgent need for such guidance, from all three sources. If it fails to resolve what is a problem that affects many people in serious need, I seek an undertaking from the Minister that she and her Department will consider amending the law to make proper provision.
§ The Parliamentary Secretary, Lord Chancellor's Department (Yvette Cooper)
I congratulate the hon. Member for Altrincham and Sale, West (Mr. Brady) on securing the debate on an issue that he has raised several times in the House and about which he has considerable concerns. As he said, it covers the areas of responsibility of two Departments. The Lord Chancellor's Department is responsible for data protection and the Department of Health for many issues involving hospital chaplains. Health Ministers are aware of the concerns that some hospital chaplains have raised about the effect of the Data Protection Act 1998 and I will ensure that today's debate is drawn to their attention.
I shall set out the background principles behind the 1998 Act. An important principle of consent underlies that Act and the policies in the area. The Act gives effect to the 1995 EC data protection directive, which is binding on the United Kingdom. Although the United Kingdom has had data protection law since 1984, changes were necessary in order to comply with the directive. The 1998 Act requires organisations processing personal data to comply with an enforceable set of rules known as the data protection principles, which cover requirements on the fair and lawful processing of personal data and the processing of data for specific purposes. Many of those principles applied under the 1984 Act, but the directive added some requirements, in particular, broad, statutory conditions, one of which has to be met before personal data may be processed. Those requirements are set out in schedule 2 to the 1998 Act.
Under the directive, certain information, including that on an individual's religious beliefs and health, has to be treated as particularly sensitive. More detailed conditions govern the processing of such data which are, as the hon. Member said, set out in schedule 3 of the Act. Meeting one of the conditions does not remove the need to comply with the broader data protection principles but it is a necessary prior requirement. In some circumstances, the common law duty of confidence may also apply to the information about religion provided to hospitals by patients. That means that the information may not be disclosed under those circumstances by the 219WH hospital, including to a hospital chaplain, unless the individual has consented or there is an overriding public interest.
The hon. Gentleman raised concerns about the requirements of the Data Protection Act 1998 and the work of the hospital chaplains. The service provided by hospital chaplains to patients who want spiritual care and support can have a greatly beneficial effect, and we should support them in their work. Hospitals routinely ask people who are admitted for treatment about their religion. Certainly, in the past, much of that information was made available to hospital chaplains, although it is interesting that certain issues surrounding the duty of confidence are unchanged because they were not changed by the 1998 Act, so there are some complicated legal issues in that area.
§ Mr. Brady
Does the Minister accept that the underlying purpose of the duty of confidence and the convention is to protect a person from discrimination and persecution? It is not to prevent someone from being put in touch with another person who can minister to their spiritual needs, where religious affiliation implies that such a person's assistance would be welcome.
§ Yvette Cooper
I recognise that some people might welcome the support and care, but the issue is difficult because if people do not consent to information being passed on or explicitly withhold their consent, it is difficult to argue that their consent should be overridden, even for the sake of something that we would all consider to be worth while. Some people will not want to discuss their situation with the hospital chaplain and will not want information to be passed on, so we need to tread carefully around issues relating to consent and sensitive information.
Individuals should have some control over how their personal information is used. Although there may be circumstances in which information should be passed on, in that person's interest or the public interest, there may also be situations in which it is important to respect the principle of consent. Hospitals are permitted to disclose to hospital chaplains the religious affiliations of patients whose explicit consent has been obtained. Emergency cases, in which the patient is unconscious or unable to give explicit consent, are covered by the schedule 3 condition relating to an individual's vital interests.
Concern has been raised that, under the framework, with its explicit respect for consent, hospital chaplains may not be able to carry out their work. It is important that they should provide care for those who want it, and we must deal with the genuine concerns that have been raised and the confusion described by the hon. Gentleman. However, at this stage, I am not convinced that a case has been made for an additional condition to be laid down under the 1998 Act. The principle of consent is important, and a sufficiently strong case has not been made for why it should be overridden and why information should be passed on in normal circumstances where someone has not given, or has explicitly withheld, consent, particularly because it is possible for consent to be sought and given when the information is initially sought.
220WH I have been told about trusts where consent is routinely sought and where hospital chaplains are working well, but I recognise the hon. Gentleman's concern that, in some places, that is not happening and difficulties are being faced. The Department of Health recognises the need for guidance with regard to confidentiality and data protection.
The patient information advisory group has been asked to consider the matter. It will shortly provide Health Ministers with advice. In addition, my Department is drawing up a code of practice on confidentiality and consent for people working in the NHS. The multi-faith joint national working group is working with officials of the Department of Health on advice and information for hospital chaplains. The hon. Gentleman asked what work has been going on and who is involved. I shall pass the question to the Department, which will reply directly to him.
Considerable work is being done. Where there is evidence that it is possible to work within the existing framework without overriding the important principle of consent, our first task should be to see what works successfully in some parts of the NHS and replicate that across the service. The Information Commissioner has also considered the matter. In her view, an adequate case has not been made for an additional condition, and it should be possible for hospitals to seek consent at the same time as they give—
§ Yvette Cooper
I will come to that.
The hon. Gentleman raised the matter of whether chaplains are considered to be health professionals, or responsible for care. The interpretation of the Act is the responsibility of the Information Commissioner. She has set out her view that consent should be sought before information can be passed on to hospital chaplains, except in cases in which consent cannot be given.
Much wider questions about the definition of health professionals and the way in which they are classified arise. They cannot be answered purely in the context of data protection. In the first instance, they would have to be raised with the Department of Health and the Health Professions Council in terms of the nature of health professionals and the way in which hospital chaplains want to be regarded.
There are a number of ways in which the problem should be able to be addressed within the existing framework. I take the hon. Gentleman's concerns seriously and I shall follow the progress that is made in the development of the guidance. We want to ensure that people can conduct their work, which is beneficial to many patients. However, the case has not been made that that is not possible under the Act. Wherever possible, we must respect the important principle of consent, which the Government rightly placed at the core of the Data Protection Act, particularly where sensitive data is concerned. I hope that we shall be able to resolve people's concerns. Given that that has been achieved in many areas, I hope that it will also be possible right across the NHS.