Health and Social Care (Community Health and Standards) Bill

– in the House of Lords at 6:30 pm on 20th October 2003.

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Clause 58 agreed to.

Clause 59 [Criteria]:

[Amendments Nos. 311 and 312 not moved.]

Photo of Baroness Barker Baroness Barker Liberal Democrat

moved Amendment No. 312A:

Page 22, line 26, at end insert—

"( ) If requested to do so by the Audit Commission in any particular case, the CHAI or CSCI may assist the Audit Commission in the exercise of its functions under section 33(1) of the Audit Commission Act 1998 (c. 18) (studies for improving economy etc in services)."

Photo of Baroness Barker Baroness Barker Liberal Democrat

Well, we begin again. I approach the rest of what is termed "today" with all the joy of a junior doctor starting a shift.

This probing amendment seeks to delve into an important area that we have not yet covered in our deliberations. The amendment probes the relationship of CHAI and CSCI—particularly CSCI—with the Audit Commission. When it takes over its functions, CSCI will inherit part of the function of the SSI but also elements of the Audit Commission's role.

I do not wish to rehearse the arguments that have already been made about the independence of these new bodies. One great benefit of both the Audit Commission and the National Audit Office has been the independent and thorough way in which they have looked at aspects of health and social care. The Audit Commission, in particular, has produced reports which have been among the most influential in enabling legislators to see the impact of legislation and have also pointed the way to future measures.

The amendment seeks to tease out which elements of the Audit Commission will be drawn on for CSCI, and what the future relationship between CSCI and the Audit Commission will be. I look forward to the Minister's reply. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

Amendment No. 312A is inappropriate in relation to CHAI because the Bill transfers the main responsibility for such studies in relation to English NHS bodies, other than special health authorities, to CHAI. The Audit Commission will no longer carry out value-for-money studies on those NHS bodies.

We agree that it is entirely appropriate for CHAI to be able to assist the Audit Commission in carrying out financial management studies and for CSCI to be able to assist the Audit Commission on studies relating to economy, efficiency and effectiveness on local authorities. However, we think it is already able to do so on the basis of the existing powers in the Bill and the Audit Commission Act 1998, and that this additional power is therefore unnecessary.

The Audit Commission will retain all its Section 33 functions in relation to Welsh NHS bodies. While we think it would be lawful for CHAI to assist the Audit Commission in carrying out those functions, it is the Assembly and not CHAI that will carry out reviews of particular Welsh NHS bodies. Therefore, any assistance to the Audit Commission with respect to studies in relation to Welsh NHS bodies is more likely to be sought from the Assembly than from CHAI.

It should also be noted that the Government have published a Bill in draft for consultation—the draft Public Audit (Wales) Bill. This proposes to transfer all the Audit Commission's functions in relation to Welsh NHS bodies to the Auditor-General for Wales. The draft Bill provides for co-operation with the Audit Commission, and it would be premature to legislate on this matter now.

That is the context. We have already discussed CSCI's relationship with regard to comprehensive performance assessments on local authorities and their relationship to CSCI.

Photo of Baroness Barker Baroness Barker Liberal Democrat

I thank the Minister for his reply and shall study his words in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 313 and 314 not moved.]

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 314A:

Page 22, line 38, at end insert—

"( ) to consult any person specified in the regulations before publishing a statement under subsection (1) or (2);"

On Question, amendment agreed to.

[Amendment No. 315 not moved.]

Clause 59, as amended, agreed to.

Clause 60 [Provision of material]:

[Amendment No. 316 had been withdrawn from the Marshalled List.]

Clause 60 agreed to.

[Amendment No. 317 not moved.]

Clause 61 [Fees]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 317A:

Page 23, line 14, after "body" insert "or to health care provided by or for that body"

On Question, amendment agreed to.

[Amendments Nos. 318 and 319 not moved.]

Clause 61, as amended, agreed to.

Clause 62 [Fees: Wales]:

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

moved Amendment No. 319A:

Page 24, line 6, after "body" insert "or to health care provided by or for that body"

On Question, amendment agreed to.

[Amendment No. 320 not moved.]

Clause 62, as amended, agreed to.

Clause 63 [Reports and information]:

[Amendment No. 321 not moved.]

Clause 63 agreed to.

Clause 64 agreed to.

Clause 65 [Right of entry: supplementary]:

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 322:

Page 25, line 27, at end insert—

"( ) The CHAI must ensure that any documents or items removed under subsection (1) are not retained for an unreasonable period of time and must give reasons in writing for their retention if so requested by—

(a) the person from whose premises the documents or items were removed, or

(b) any other person with an interest in the documents or items."

Photo of Earl Howe Earl Howe Conservative

In moving Amendment No. 322, I shall speak also to Amendment No. 335.

At the beginning of Clauses 65 and 71, which parallel each other, we see the familiar words "necessary" and "expedient". In the context of these clauses, which relate to the right of entry and inspection of premises by persons suitably authorised to do so, those words inevitably sound an alarm bell.

If you are someone whose premises are raided by CHAI or an equivalent official from the Welsh Assembly, what rights do you have? Not many, judging by the list of things that an inspector is entitled to do, as described in these clauses. That begs the question of what constitutes fair and reasonable behaviour by the person who decides, let us say, that it is necessary and expedient for him to remove from a set of premises the computer equipment, accounts and records that are housed there.

We are talking not just about NHS premises. As we all know, CHAI's remit, and that of the Assembly, covers independent businesses as well. I have no problem about putting the NHS and the private sector on to an equal regulatory footing, but at the same time there are other considerations. Those who manage private hospitals and clinics have businesses to run. These businesses cannot continue without the means at their disposal to do so. Records and accounts are an integral part of running a business day to day.

My proposal is not to deny the official inspector any of the rights granted to him but to balance those rights, albeit partially, with a corresponding right for the person whose documents or property are removed to ask for reasons if he considers that he has been deprived of their use for an unreasonable time. CHAI in turn would have to supply the reasons.

The amendment is not much, but it is something—perhaps enough to ensure that CHAI and officials in Wales remain conscious of the burdens that they place on business by exercising their rights to take charge of other people's property. There is only one way in which to ensure that, which is to add my amendment or one like it to the Bill. I beg to move.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

Amendments Nos. 322 and 335 would place a duty on CHAI and the Assembly to justify the removal of documents and to return the said items within a reasonable period of time. I have sympathy for the amendment, but the powers under the clause are very similar to those provided to the National Care Standards Commission in Sections 31 and 32 of the Care Standards Act 2000.

I want to make it clear that we do not envisage that the provisions will entail removing vast quantities of documents from sites that CHAI inspects. We also believe that CHAI, should it feel a legitimate need to do so, will normally obtain any additional information that it may want to remove from the premises by agreement. However, the power to remove original material may be necessary where inspectors suspect tampering of data for fraudulent purposes, for example. It emerged in the Shipman inquiry that there had been a considerable tampering of records. In such situations, it is right that individuals acting on CHAI's behalf are able to remove such material for examination without first having to supply promptly a statement of reasons. So that care providers can continue their day to day operations, they will of course be free to take copies of documents that CHAI intends to remove. We envisage that CHAI will want to conduct its business with minimal interruption to service provision and so would expect it to return documents in their original condition as soon as practicably possible.

Given the sensitivities of the power, and should CHAI not return removed material within a reasonable period of time, the organisation involved would of course be entitled to seek judicial review or redress via the Parliamentary Ombudsman. The clause as drafted makes it clear that CHAI has the authority to have access to all relevant information. The amendment, if carried, would dilute the effectiveness of CHAI's review and investigative functions. In the light of those assurances, I hope that the noble Earl, Lord Howe, will be willing to withdraw the amendment.

Photo of Earl Howe Earl Howe Conservative

It is not much of a dilution of CHAI's investigative function to say that someone whose property has been taken away should be able to ask CHAI why it has held on to it for an unconscionable length of time.

The Minister slightly over-eggs his case. He says that judicial review or redress by the ombudsman are remedies available to those affected. I simply point out, as I have before, that judicial review is a terribly heavy-handed and expensive procedure. It is also not necessarily very speedy. One could say the same of redress by the ombudsman.

The proposal I make in the amendment is fairly simple, and does not ask an awful lot. It certainly would not interfere with the rights granted to CHAI and CSCI under these clauses. I am disappointed that the Minister was not more receptive to my proposals, but I do not propose to press the matter now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clause 66 [Power to require documents and information etc]:

Photo of Earl Howe Earl Howe Conservative

moved Amendment No. 323:

Page 26, line 8, leave out "(including personal records)"

Photo of Earl Howe Earl Howe Conservative

In moving the amendment, I shall speak to Amendments Nos. 324, 358ZB and 358ZC.

The amendments deal with some extremely serious concerns about patient confidentiality. I am experiencing a sense of de ja vu in raising the topic, as my worries are similar to those I raised four years ago in our debates on the health Bill, in relation to the Commission for Health Improvement. Several of us argued, successfully, that the proposed powers for CHAI to access patient data were excessive, and amendments were made that considerably softened the original proposals. I hope that something similar can be agreed on this occasion.

The Bill contains what are, by any standards, wide-ranging powers for new CHAI to access patient records wherever,

"CHAI considers it necessary or expedient".

Nowhere at all is the patient's right to confidentiality even alluded to, nor is any mention made of involving patients in decisions about the use of their personal data.

The GMC has those principles as a central plank of its guidance on confidentiality. Nominally, at least, the Department of Health has also subscribed to them in its draft code of practice. So why these unqualified provisions? We all understand about the work that CHAI will do. Some of its investigatory work will be retrospective in nature. Quality assessments involve similar procedures. In those circumstances, obtaining a patient's consent to accessing his records may be a cumbersome and sometimes even impossible task. Nevertheless, there is a very strong argument for insisting that CHAI should use anonymised or aggregated data whenever they will serve its purpose.

If one is trying to compile an assessment of clinical or financial performance, information about individual patients is seldom needed. Anonymised data are sufficient and will become much easier to generate over time, as more records are held electronically. In circumstances in which identifiable records are needed—and there will be some—the answer ought to be that the patient's consent should be obtained. That could be done by way of a suitably worded authority when the patient is being treated in the hospital, to be put by in case of need later. If that cannot be done, personal records should be accessed only for overriding public interest reasons.

The Health and Social Care Act 2001 established the Patient Information Advisory Group as a mechanism for considering circumstances where the public interest is not clear cut and it is not practical to anonymise data or seek patient consent. We would feel a lot easier if the powers of CHAI to access named data without consent were made subject to that legislation. I beg to move.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat

We on these Benches very much welcome a debate on the amendments. However, without recent developments, we would have had more sympathy with them. At one stage, it looked as if the GMC and new CHAI were lining up for a potential clash of the titans, although I do not know whether that is the right way in which to describe Sir Graham Catto and Sir Ian Kennedy—but it looked very much that way.

As the noble Earl, Lord Howe, said, we have had many previous debates on this area—those on the Health and Social Care Bill being one instance, and the previous CHAI debate being another. We on these Benches have been quite consistent. We are not over-ideological about prohibiting use of non-anomymised personal records. The circumstances may differ in which those records can be used, but the essence of the question is, at the end of the day, what is right for patient welfare. Authorities, regulatory or otherwise, need good justification for such access and there need to be proper controls. We were instrumental in agreeing to the new Patient Information Advisory Group set out in Section 61 of the 2001 Act.

In this Bill, there is a difficult balance to maintain. The matter needs to be considered against the backdrop of the kind of powers held by other regulators, such as the Audit Commission, in similar circumstances. I believe that times have changed and that untrammelled right of access to non-anonymised personal records would be wrong in the circumstances that we are discussing. However, CHAI believes that when it is investigating cases such as abuse and serious service failures it needs that kind of access. On the other hand, the GMC has been vigilant in drawing up its code of confidentiality. Our view on these Benches might have been different if no agreement had been reached between the two bodies. However, it appears to have been reached—I believe that the Nursing and Midwifery Council and the consumers' council have been involved in this—in terms of agreeing that a code of practice should be drawn up which would specify the situations in which CHAI would have access to data relating to individual identifiable patients. The instances in which authorisation would be sought and granted would be specified.

The situation begs a number of questions. These Benches have been briefed by the GMC, as I believe have a number of other noble Lords. A number of issues have been raised. I understand that there is still water to flow under the bridge and clearly we are not there yet. However, it would be extremely useful if the Minister would indicate the kind of circumstances where access would be granted to individual identifiable patient records, and when access would be sought and the mechanisms for scrutinising, authorising and monitoring those requests. The matter is rather more important than simply waiting for a set of regulations to come down the track after the Bill has left this House.

I do not go so far as the noble Earl, Lord Howe, in saying that the Patient Information Advisory Group should be involved, but I believe that there could well be a case for the code of practice to be enshrined in legislation, or for it to become a precondition in this regard. I hope that the Minister will address that matter in his response. This is a serious matter. It is an area where conflicting principles apply. We believe that the two bodies concerned are in the process of achieving a balance but that rather more specificity is required.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative 7:00 pm, 20th October 2003

I also wish to address the amendment. I have great sympathy with my noble friend's concerns. I wish to comment briefly as I know that time is moving on. I made my maiden speech on patient records. One of the indicators of success of the change in childbirth policy which I pioneered was that pregnant women should hold their own notes. As I have three children and a very diligent GP, my health records are voluminous. When my GP retired, a new GP entered the practice and looked at my notes. He said, "I am very sorry, Julia, I cannot read a word of them". Therefore, my records are completely confidential—that gives me great heart—but I have to say that they are confidential and useless.

The clauses that we are discussing are very worrying. As the noble Lord, Lord Clement-Jones, said, we had long debates on these issues during the passage of the Health and Social Care Bill. The Minister was certainly not a Minister at that time and perhaps did not take part in the debates on that Bill. During the passage of that Bill we had measured, sincere and very passionate debates at every stage. Some noble Lords, myself included, were very nervous that the proposals would assault the principle of patient confidentiality. Today we face the danger of another move to erode that principle. In no way do I want to insinuate that the motives of those concerned are sinister but I believe that there are serious dangers here which need to be addressed.

I do not want to go over all the arguments that we had previously as I am sure that there will be opportunities to do so later in the passage of this Bill. However, we know that effective medicine depends very much on trust—trust between doctor and patient, between nurse and patient, between healthcare worker and patient but, above all, the trust that the patient has in the NHS; the NHS as an organisation, its systems and its ethics.

Patients reveal the most intimate aspects of their lives, especially when they are at their most vulnerable. It is essential that health professionals have a great deal of knowledge about patients if appropriate care is to be provided but it is understood that that information is confidential and will not be bandied about or disclosed without the patient's consent. One has only to pick up a telephone and try to book something as innocuous as a holiday to be told often by the relevant commercial company, "I warn you that what you say may be disclosed for training purposes". Many such organisations are punctilious in that regard and yet here we are asking people to reveal the most intimate information to health professionals for it to be used by CHAI. CHAI is a body of huge integrity. We have great faith in its new chair and its commissioners but it is an independent body. We do not know what it will be like in time to come. Earlier the Minister described CHAI as the pre-eminent, independent NHS body. It is a very powerful body.

The noble Lord, Lord Clement-Jones, said that there has been much discussion on the matter which I very much appreciate. I am pleased that agreement has been reached but, as I understand it, it is proposed that the use of private patient records should be authorised by a small group of two or three CHAI commissioners. I do not think that is good enough. We ought not to allow CHAI, which wants this information, to be the judge and jury in its own cause. In ordinary law we do not accept that as a good principle. I do not accept what the noble Lord, Lord Clement-Jones, said; that is, that we should not use the organisation that was set up through pressure of your Lordships during the passage of the 2001 Bill. We were very careful to ensure that the Patient Information Advisory Group was well chaired. We chose an extremely eminent person to chair the group, Professor Joan Higgins. Other members of the group were Sir Denis Pereira Gray, who was an adviser to the department, and Sir Cyril Chantler—people of enormous integrity, eminence and common sense.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

I bear the scars of the debates that we have had on this matter. Although the noble Baroness is right to testify to the work of the PIAG, is she aware of deep concern among many people involved in research in this country that the PIAG process has resulted in a very bureaucratic structure for getting approval? Is the noble Baroness concerned that we are not defining the public interest with the right balance? If this country becomes a difficult place in which to undertake research, we shall defeat the whole object of what we are trying to do.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

As I understand it, CHAI is interested not in research but in audit. When the Patient Information Advisory Group was set up a number of noble Lords took great interest in determining how it would work and were very impressed with the group's rigour. That ensured that the public interest and the private personal interest were maintained. From time to time during the course of this Bill the Minister has been generous in agreeing to reconsider certain issues. The matter that we are discussing is of huge national importance. It needs further consideration. Will the Minister consider the points made tonight and revisit some of the very important debates that we had during the passage of the Health and Social Care Bill in 2001?

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

Members of the Committee have made extremely important points on a major issue of public policy. I certainly do not want to give any impression that anything in the Bill is an assault on patient confidentiality, which was the term used. I would like to spend a little time reassuring the Committee that we believe that the information about individual patients is rarely needed in considering the general financial or clinical performance of organisations. Therefore, although it will be for CHAI to determine what information is relevant to its inspections, it is our clear expectation—Sir Ian Kennedy has confirmed it—that CHAI should use anonymised or aggregated data wherever that is a practical option and will serve the purpose.

CHAI will, of course, be subject to the Data Protection Act 1998, as is currently the case for the Commission for Health Improvement, the National Care Standards Commission and the Audit Commission. With regard to the duty to inform patients that their records may be subject to inspection, it is part of the fair processing requirements of the Data Protection Act that organisations must make reasonable efforts to inform individuals about how their information is to be used. Those are quite powerful protections for individual patients.

I shall deal with Amendments Nos. 358ZB and 358ZC. It would be a significant fetter on CSCI's independence if it needed to ask the Secretary of State's permission every time it wished to access confidential information. That would also add a delay in accessing any such information, so it would serve to prevent the inspectorate acting quickly to access personal information where that was necessary to protect vulnerable individuals.

We do not propose that CSCI should need to access personal data on a regular basis, and the inspectorate will do so only where it is necessary or expedient. In seeking to ensure the protection of vulnerable adults and children, CSCI may from time to time need to access original data, to ensure that they have not been altered or tampered with in any way. That is vital in relation to child protection work and the protection of vulnerable adults. From my experience of running a social services department, time can be critical in many such areas.

Members of the Committee are taking the opportunity to ask why the NHS, CHAI and CSCI cannot take steps to ensure that consent procedures are improved or to anonymise records more effectively. Evidence from CHI suggests that seeking consent causes delays and is unlikely to ensure anything like a return of 100 per cent. There are good reasons for that. Some people may consent, some may refuse and some may not reply. The process has to be managed by individual trusts and can cause significant delays on important issues.

Anonymising records is also a time-consuming and complex task requiring careful quality assurance to ensure anonymity. When undertaken on a large scale, it is subject to human error, and in some cases makes demands on hard-pressed clinicians' time. Some issues around anonymity and seeking consent have their own difficulties. I am not arguing the case for not trying to pursue those routes, but trying to set the record straight that they are not always easy solutions when some cases require a timely and speedy intervention.

I sympathise with the concerns of Members of the Committee, but a number of them have said that there have been discussions between the chairmen of CHAI and the GMC. It is worth drawing on some of the evidence of those discussions available to me about the circumstances—several Members of the Committee asked about them—in which the chairman of CHAI envisages the need for having access to data that relate to individual identifiable patients. One example is issues of child protection when there is a need to follow cases across the boundaries between health and social care services—we all know, from some very sad cases that have gone wrong, that some of the boundary issues are pretty critical—and which might involve concerns about parents.

Another area is investigations of serious failures of services, not least in respect of services for particularly vulnerable groups who might not be able to consent—for example, elderly people with severe mental illness, or people with learning disabilities. On audit of economy efficiency and effectiveness in relation to the management of waiting lists, we may need access to the records, as on implementation of NICE guidance. Those are examples from information given to me by the chairman of the Commission for Healthcare Audit and Inspection. I have used them to try to answer some of the questions raised by Members of the Committee.

It is also worth bearing in mind that Clause 134 makes it clear that an employee of CHAI would be committing a criminal offence if he knowingly or recklessly disclosed patient-identifiable information given in confidence. We have made such a provision to support our emphasis on the importance of patient confidentiality, and as a means to reassure the public—and healthcare professionals—that CHAI, in its privileged role, will not abuse its position.

We should let the work taking place between CHAI and the GMC unfold a little further. They are working towards a code of practice that will strike the right balance. We need to give them more time, and I am sure that they will come forward with a document that will meet many of the concerns expressed.

Several Members of the Committee have raised the subject of the Patient Information Advisory Group. Unlike my noble friend Lord Hunt, I do not bear the scars of the discussions on that; no doubt in a few years' time I shall be talking about scars in relation to this Bill. We are pretty confident—the chairman of CHAI will read Hansard on the subject—that CHAI will consult the Patient Information Advisory Group, among others, as a code of practice evolves from the work that CHAI is doing with the GMC. CHAI will be aware of the work done by noble Lords in this House on an earlier Bill. I assure the noble Baroness, Lady Cumberlege, that I will carefully read the earlier debates to inform myself better before Report.

In those circumstances, I hope that the Committee is reassured that the Government take the issue very seriously. A difficult balance is to be struck, as said by the noble Lord, Lord Clement-Jones, but the right way to proceed is to let the work on the code of practice between CHAI and the GMC continue, rather than pursuing the route of an amendment to the legislation at this stage.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 7:15 pm, 20th October 2003

The noble Lord has been very helpful in terms of giving some examples of circumstances in which personal information that has not been anonymised might be needed. I think that he gave four examples. He also talked further about the code of practice. However, what is the timing of that code? Even for those of us who recognise that a balance needs to be struck, that there are circumstances in which consent is not possible, and that the Patient Information Advisory Group is the right mechanism, a bit of expedition would not go amiss. It would enable us on Report to at least have something rather more concrete.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I am very happy to take soundings from the two titans, as the noble Lord called them earlier. Given all the discussions that we have had about the independence of CHAI, I am sure that he would not want me to be terribly heavy-handed, or I should be accused of the Secretary of State interfering unnecessarily. I understand his concerns, will make inquiries, and will write to all Members of the Committee when I have some better information on the time scales involved.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

I thank the Minister for his reply. It was disappointing for me in that I had hoped that the noble Lord would go further. I accept, as do all noble Lords, that confidentiality is not an absolute. There will be circumstances, which the Minister has illustrated, where there is a strong public interest and disclosure is necessary. The matter that worries me is that we do not seem to have a good process for dealing with that situation. The Minister mentioned the code. I am not sure exactly how we have an influence on that code.

We have described the two titans. Where is the referee? How can we, noble Lords who are very concerned about this, influence that code? I am frightened that the matter will be decided between the organisations involved. We may have a different perspective. Indeed, we did last time. If the mechanism that I have suggested is not the right one, I hope that the Minister will come back with not just a code—that is too loose—but with something that we can be certain is independent and, yes, quick, fast and resolute. Simply to say that it will be inconvenient and irksome to have a delay is not good enough. We can surely devise a mechanism that fits the needs here, but is not as loose as a code over which we have no control.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

Putting the matter another way, is the Minister convinced that he will be able to continue to certify that these clauses are compatible with the European Convention on Human Rights, when the so far unknown code is in existence? He has certified that these two clauses satisfy the convention. That is surprising, and depends on good legal advice. The code will presumably affect the way in which the clause operates. How will he be sure that he can certify the Bill once the code appears?

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

We can do so because on good legal advice the Government have certified that the Bill as presently drafted conforms with the Human Rights Act. The code of practice that we are discussing will be, so to speak, belt and braces. We will go further than the legislation as presently drafted. That will certainly make the situation better. We believe that there are sufficient safeguards in the Bill, but we are also saying that we understand peoples' concerns and nervousness, and we are pleased that CHAI and the GMC are working on the code of practice. We are confident that the code will produce further safeguards to reassure people in this House.

Photo of Baroness Cumberlege Baroness Cumberlege Conservative

How are we going to see the code?

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

We have had many discussions about heavy-handed government interference with independent inspectors. Under the current process, the General Medical Council, which is the self-regulation body for the medical profession, is discussing with the chairman and staff of the new body the arrangements for a code of practice. We need to let that process take place in a sensible manner without interference from government. That is not the objective that noble Lords have been saying that they want to happen in relation to CHAI. I promise to write to noble Lords about the time scale involved. I shall do that as quickly as I can—but we do need to let that process take place.

Photo of Earl Howe Earl Howe Conservative

I felt that the Minister's opening remarks did justice to the gravity of the issue. I was less happy with the way that he carried on in his reply. I thank my noble friend Lady Cumberlege for the robust stance that she has taken, with which I completely identify. I am also grateful to the noble Lord, Lord Clement-Jones, because we do not always see eye to eye on these issues. He made some extremely helpful proposals. He is right. There are conflicting principles at work and there is a balance to be struck. But it must be a balance that is protected by a robust framework of safeguards.

Of course I was aware that the chairman of the two titans have been engaged in discussions in recent days. That is a welcome development. However, we need to see the fruits of those discussions. It is easy for the Minister to say that we are urging the Government to give CHAI the maximum independence, and suddenly we are asking to second-guess CHAI. We are dealing with an issue that is of a completely different order. It is indeed an issue of national importance and Parliament does have a legitimate role in the matter.

My noble friend Lady Cumberlege was right—there is in a doctor and patient relationship an inherent degree of the utmost trust. It is not reasonable that a patient should not know that his or her personal records are being disclosed or used for a CHAI investigation, other than in the most exceptional circumstances. It is also not fair on staff to ask them to breach the principles enshrined in the Data Protection Act without providing them with legal and ethical cover. Doctors and nurses are in a very privileged position.

I note the Minister's comments about it being a relatively rare occurrence for CSCI to want to gain access to personal data. In that event asking for consent to gain access should not be a problem. If such consent causes delay, we should say that that is just tough. The delay need not be more than an hour or two in most circumstances if the situation is urgent. I do not buy the argument that the Minister put forward in that context. Again I am grateful to my noble friend Lady Cumberlege for her comments on the matter.

The Minister seemed rather too ready—I do not wish to underline this too many times—to allow this type of information to be sprayed around on too liberal a basis. We have to resist that. If a protocol emerges from this process of discussion between the two chairmen, at the very least that there should be a role for independent persons, apart from CHAI, to adjudicate on the matter. It is not enough for the decision to be taken in-house. I believe that the matter is under discussion.

Photo of Lord Warner Lord Warner Parliamentary Under-Secretary, Department of Health, Parliamentary Under-Secretary (Department of Health)

I wonder if it would help the noble Earl and others here to say that, given the strength of feeling on this issue across all sides of the House, I undertake to consider it further. I would like to do that in consultation with the chairmen of CHAI and the GMC. I take the noble Earl's point, as will they, about having an independent review. I will look at the wording of the Bill and after those discussions I will continue to give noble Lords an update on the time-scales that are involved over the code of practice. I shall return on Report with further thoughts, if we have them, on how to take the matter forward in a way that will be satisfactory to opinion across all sides of the House. I emphasise that I do not underestimate the strength of feeling on this issue, and it is a matter of important public policy that we have to get right.

Photo of Earl Howe Earl Howe Conservative

I greatly welcome the Minister's offer and his willingness to take away the concerns that have been aired today. I am grateful to him for responding so positively. There is little more we can do now to enlarge on these important issues. Clearly, we will need to return to them at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 324 not moved.]

Photo of Baroness Andrews Baroness Andrews Government Whip, Baroness in Waiting (HM Household) (Whip)

I beg to move that the House be now resumed. In moving the Motion, I suggest that the Committee stage should begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.