Clause 59 - Control of patient information
Health and Social Care
2:30 pm

Dr Liam Fox (Woodspring, Conservative)

I beg to move amendment No. 324, in page 52, line 44, leave out from beginning to end of line 50 and insert—

`information regarding any identifiable patient and relating to his physical or mental health or to his diagnosis or treatment'.

Mr John Maxton (Glasgow Cathcart, Labour)

With this we may take the following: amendment No. 285, in page 52, line 46, leave out from `treatment' to end of line 50.

Government amendments Nos. 338 to 340.

Dr Liam Fox (Woodspring, Conservative)

This is a probing amendment on which we shall not divide the Committee. It seeks from the Minister clarification about the definition of patient information that will be useful to us when we debate later stages of the Bill.

The definition of patient information provides the Secretary of State with the potential power to ban the use of important and beneficial non-personal data but also to share identifiable health data at his own discretion. The clause states that the Secretary of State will use his powers when they are in the public interest, but that could easily become the excuse for the suppression of politically inconvenient data. The explanatory note suggests as an example that regulations to prohibit the use of anonymised patient information being used for a purpose detrimental to the operation of the NHS could lead to cancer charities and others not being able to conduct surveys on postcode rationing. We believe that the clause is an attempt to squeeze out independent criticism of the NHS reminiscent of recent debates on the abolition of community health councils.The amendment would ensure a better definition than that in the Bill as drafted; we made a similar point earlier when we complained about the lack of clarity of some of the terms and therefore of their potential use.

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

I shall explain the thinking behind amendment No. 285, which would confine the scope of the order-making powers to information relating to individual patients. It would remove from the definition of patient information that is derived from information about an individual patient. The wording of the current definition is much too wide; it refers to information so derived however recorded, to any extent, directly or indirectly, and could be used to justify control of almost any information that relates to a patient. The amendment would remove the subsection's concluding words, which extend the order-making power to anonymised statistical information.

We referred this morning to the judicial review of the Source Informatics case in 1999, much of which hinged on the use of anonymised information. The following is an extract from evidence in that case presented by the General Medical Council:

``However, the GMC sees no legal or ethical principle which should prevent the transmission of wholly impersonal and anonymous data from which no individual patient can be identified. Patient interests in preserving their personal privacy cannot be harmed if the information, which derives from their medical records, is made impersonal and anonymous, so that no individual patient can be identified, but the aggregate can be used, e.g. for the effective running of a medical practice, for clinical or financial audit, or to estimate projected future need for particular medical intervention, equipment or drugs.''

The GMC also refers to the value that can be added through private databases, which is germane to our deliberations, stating that

``it will seriously hinder the development of the useful data-bases (public and private) of research data and appropriate sharing of new knowledge and research. It may also mean that doctors registered in the United Kingdom are obliged to be more restrictive than doctors in other EU member states about the sharing of medical data, and this may hinder the free flow of medical services between such states, which I am advised and believe may be contrary to the requirements of European law. In this way, it may harm medical development and the provision of high-quality, efficient medical care.''

As the amendment and clause are drafted, a whole range of legitimate commercial uses of anonymised data will be excluded. I conclude with a final quotation about the review of private sector collection of data that the GMC put in that judicial review:

``The presence or absence of profit cannot be the touchstone of what constitutes the public interest. Medical developments may occur in the public or private sector, and there should not be a public sector monopoly upon the obtaining or use of data derived from medical records. Nor does this view reflect the reality of the way in which anonymous and aggregated patient information is used at present. There is an important public interest in ensuring that there is equal access to information without unfair discrimination.''

The amendment tries to avoid the possibility of unfair discrimination. It is worth bearing in mind that when the Monopolies and Mergers Commission was asked to look at IMS's acquisition of that company, it said something that is quite relevant to the use of anonymised information:

``development of the''—

prescription data—

``services and the improvements in market information they allow would, moreover, allow scope for greater efficiency in the marketing expenditure of pharmaceutical companies (in the UK and elsewhere) and overall net savings in their UK marketing costs. We believe that this in turn is likely to benefit the UK public in that, for example, the costs of medicines to the National Health Service (NHS) and to consumers would be reduced and the choice of medicines improved''.

That was the conclusion of the MMC, not of the company but of the body that the Government have established to look at issues of competition. The case that the Government are making for the clause and, I suspect, against the amendment, is that allowing the private sector to be able to gather that information will enable it to target its marketing in such a way as to drive up drug costs unfairly and unreasonably. The MMC's evidence flatly contradicts that. Will the Minister explain why he does not agree with the MMC's conclusions? I hope that he will take on board both the concern and the detail of amendment No. 285.

Sir George Young (North West Hampshire, Conservative)

I have added my name to amendment No. 285 and I wish to speak briefly in support of this group of amendments. From the debates this morning and this afternoon it is clear that we have been talking about two sorts of patient information. One is information about the individual patient; the other is aggregated or anonymised data about more than one patient.

I have no difficulty with the Minister's arguments about protecting the confidentiality of the individual patient, although some of the powers may have gone slightly wider than was necessary. Where I have difficulty is with what the Minister is seeking to do with anonymised or aggregated data. The amendments seek to narrow the definition to focus on the first set rather than the second. Our concern is that the Government are using a clause on protecting the confidentiality of the patient to do something totally different.

The notes on clauses explaining why the Government need the powers on anonymised data are rather vague. There is one reference to the public interest. However, in our debate this morning, the Minister gave two reasons for having a broader definition rather than the narrow one in the amendments—one, to protect the financial interests of the NHS and the other to protect GPs from pressures. I am concerned about both those reasons.

The law on anonymised data is complex. One of the key legal cases is appropriately X v. Y or—more illuminatingly—X v. Y and others, which dates from 1988. The Minister needs to explain why he wants to use this clause for the much broader purpose. We have heard about the court case that was lost on appeal or on review. The Government seem now to be trying to change the law so that it will do what they tried to do before and we need to know why the Minister does not want the use of anonymised data.

Let us envisage a GP's practice that, for whatever reason, is either prescribing out-of-date medicine or, unlike other GPs, is not prescribing some new medicine. As I understand, anonymised data can enable the pharmaceutical industry to draw to the attention of the individual GP the fact that his prescribing practice is out of line. This information is called patient information but it is not really patient information at all. It is GP information. It is about the prescribing habits of the GPs and it is smuggled in under a clause dealing with patient information. I do not see anything wrong with the pharmaceutical industry using anonymised data to target particular GPs and bring to their attention information about their products. It could alert GPs about inappropriate prescribing.

However, I am unhappy about the notion that GPs need to be protected from pressure. The Minister wants to impose his judgment over that of the GPs as to what sort of advertising should reach them. It strikes me that that is excessively paternalistic and almost amounts to censorship with the Department imposing its judgment on the market in order to decide what information should reach the GPs. I am not sure that that is appropriate.

I was interested to see, Mr. Maxton, that the Treasury, in its review of Government information, has urged Government Departments to collaborate with private sector information intermediaries. In effect, that is exactly what this information under discussion is. The blunt question that I ask the Minister is whether he wants to use the powers in the clause to overturn the decision of the courts that went against him some time ago, and whether it is his intention to stop the collection of anonymised data and its use for the purposes that I have just outlined, using those powers. If that is what he wants to do, that would be an abuse of power because these powers should not be in this clause at all. I hope he will reassure the Committee that that is not his intention and that anonymised data that the pharmaceutical companies also pass on to patient organisations and medical research oganisations would be allowed to continue. I hope that he is not seeking to change a practice that has been going on for some time and that many people regard as inoffensive and even of potential benefit to patients and to the NHS.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

Amendments Nos. 285 and 324 limit the effect of the powers provided under either subsection (1) or (3) to information that identifies, and is likely to be confidential to, an individual. This has an impact, as is intended, on the power that is provided, and it is intended to provide, under subsection (1) that, it is anticipated, will be needed primarily to prevent information that does not identify individual patients from being used in ways that drive up NHS costs or are otherwise not in the interests of the patients. These amendments would prevent the Government taking action to prevent pharmaceutical companies and other commercial interests from exploiting patient information.

The dividing lines on this issue between the Government and the Opposition are now fairly clear. The Opposition parties wish to line up behind the type of marketing strategy that the Government sought to prevent in the Source Informatics case and on which we lost the court case. That is clear.

Sir George Young (North West Hampshire, Conservative)

Is the Minister aware that the Association of Medical Research Charities has expressed concern about clause 59 and has written to support some of the tabled amendments?

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

There are two important issues here. It is disingenuous, if I may use that word, for the right hon. Gentleman to plead, in support of the central argument that he was making, concerns that have been expressed by a wider range of bodies and on which I have sought to reassure the Committee about the Government's intentions. The right hon. Gentleman was making it perfectly clear, and the hon. Member for Sutton and Cheam (Mr. Burstow) was equally clear, that he saw nothing wrong in the type of marketing that is aimed at persuading people, with very precise targeting, to change their prescribing practices in a way that will lead to a higher cost for the NHS. That may be just a point of disagreement across the Committee, but the issues raised by the medical research charities cannot be prayed in aid of that argument.

I made quite clear in the earlier discussion, Mr. Maxton, and I do not want to go through all that again, why it has been necessary to frame the powers in the way that we have—albeit that, in response to some of the concerns expressed, we have amended them, quite rightly, to be limited to commercial matters. We need to have the breadth that the legislation will now have to be able to tackle those practices that we think are detrimental to the national health service.

Dr Peter Brand (Isle of Wight, Liberal Democrat)

Would the Minister be able to point members of the Committee to a definition of ``commercial'' in this instance?

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

The use of ``commercial purposes'' is well established, for example in the Town and Country Planning Act 1990. I do not believe that it is subject to a definition in that Act and it is clearly one that would need to be established in due course by the courts. It is not, however, a phrase or a piece of parliamentary drafting invented purely for this legislation. I understand, helpfully, that it is also incorporated in various Finance Acts.

We have been asked whether the Government have sought to overturn the original judgment, which did not find in the Government's favour on the issue of whether the sale of data was an abuse of patient confidentiality. Lord Justice Simon Brown said that if the Government continued to view schemes such as that operated by Source Informatics as operating against the public interest, then we must take further powers in what he described fairly as

``this already heavily regulated area to control or limit their effect.''

That is precisely what we are seeking to do through this legislation.

Government amendments Nos. 338 to 340 amend the definition of exactly what constitutes confidential information and make it clear that information may be confidential not only when an individual can be identified from the information in question, but also where that information might be combined with other information in the hands of—or likely to become available to—the person processing the information. This is an important clarification in current times, where people increasingly have a range of information that can be pieced together. They have the use of supportive information technology and can establish identity as if assembling a jigsaw.

Let me make it perfectly clear once more that it is not the intention behind this section of the clause to limit scrutiny or criticism of the NHS, nor does it introduce a blanket ban on the use of information for commercial or research purposes. It sets in place a procedure whereby the Secretary of State, after consultation and only after due parliamentary process, can take measures to stop the sort of practice that we regard as harmful to the NHS and that I was able to describe earlier.

Mr Paul Burstow (Sutton and Cheam, Liberal Democrat)

That is the very point that I hope that the Minister can develop further. The explanatory notes say that one of the purposes of this power is to deal with matters that might be detrimental to the operation of the NHS. Could the Minister elaborate and give us some exemplifications of the sort of detriments to the NHS that would lead him to exercise this power?

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

The explanatory notes—the hon. Gentleman understands the procedures—were drafted with the help of legal advice at the time at which the original clause was tabled. As I have made clear, we listened to the representations about the drafting of the original clause and we sought, I think rightly, to restrict the original scope. When we were going through that process, we considered the pros and cons of putting the word ``detriment'', which was in the explanatory note, on the face of the Bill. It was decided that there were so many ambiguities about the interpretation of ``detriment'' that it would not be right to do so. That is why we have chosen the simpler formulation of ``commercial purposes''.

The hon. Gentleman will know that the explanatory notes do not constitute statute; they are there for guidance and assistance. However, he has provided me with the opportunity to explain why we have chosen the wording that we have to be on the face of the Bill.

Dr Liam Fox (Woodspring, Conservative)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 338, in page 53, line 3, after `ascertainable' insert `(i)'.

No. 339, in line 4, after `information' insert

`, or

(ii) from that information and other information which is in the possession of, or is likely to come into the possession of, the person processing that information'.

No. 340, in line 5, leave out first `the' and insert `that'.—[Mr. Denham.]

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

I beg to move amendment No. 341, in page 53, line 14, leave out `includes the purposes of' and insert

`means the purposes of any of the following'.

Mr John Maxton (Glasgow Cathcart, Labour)

With this it will be convenient to take the following amendments: No. 329, in page 53, line 14, leave out `includes' and insert `means'.

No. 330, in line 16, leave out from `treatment' to second `and' in line 17.

No. 236, in line 17, leave out `and social care'.

Mr John Denham (Minister of State, Department of Health; Southampton, Itchen, Labour)

Amendment No 341 is another amendment that we move following further discussion and consultation. It amends the current open definition of ''medical purposes'' to a closed definition listing a range of purposes. The list of purposes is broad enough to cover all the purposes that we envisage that it may need to cover and, as it is intended as a safeguard for patients, the logic that the definition should be closed rather than open ended seems to be inescapable.

I acknowledge that amendment No. 329 essentially aims to achieve the same end and I hope that the hon. Member for Sutton and Cheam will be content with the slightly different wording suggested by parliamentary counsel.

Amendment No. 236 amends the definition of ``medical purposes'' provided in the clause to exclude social care services. While the definition is arguably still wide enough to encompass social care and indeed is interpreted in that way within the Data Protection Act 1998 where a similar definition exists, our intention was to put this beyond doubt and to send a clear signal of the importance that we put on the development of seamless care.

Amendment No. 330 has the effect of removing the purposes of managing health and social care purposes from the definition of medical purposes. We have based the definition here on the definition of medical purposes provided in the Data Protection Act 1998, and although we have added some clarification in line with Government policy relating to providing patients with seamless care and providing them with more information about their own care and treatment, they are purposes that are already covered by the Data Protection Act definition. It seems sensible that the core element of the definition should apply as widely as possible so that any reference to ``medical purposes'' can be generally understood without having to delve into different Acts. However, we should be clear that before regulations can be made to allow information to be used for management or for social care purposes they would have to pass the clear tests limiting the use of the powers set out in the Bill.

Agreement agreed to.

Mr John Maxton (Glasgow Cathcart, Labour)

I have given careful consideration as to whether I should allow a clause stand part debate. However, I believe that the principles and related matters involved in the clause have been covered by the debate on the amendments and therefore I intend to put the question forthwith.

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 11, Noes 7.