Patients’ confidence in the ability of doctors and the NHS to protect confidential information will be seriously damaged by a new data-sharing bill being pushed through Parliament, the BMA and the GMC have warned.
The Digital Economy Bill includes a contentious clause that will set aside the established legal common law duty of confidentiality which has been built up over years by judge-made rulings.
This duty is an important safeguard around the release of identifiable patient records and provides a greater level of protection for confidentiality than the Data Protection Act alone.
The bill aims to improve public services by freeing them up to exchange digital records of the people who use them.
And while the bill, as it stands, would not allow for GPs or hospitals to release health data on request, it paves the way for ministers to wave through regulations that would allow them to do so in the future.
As secondary legislation, such regulations would not be subject to the same level of scrutiny as primary legislation.
The conservative spokesperson Lord Keen has indicated the Government might want GPs and hospitals to share patient records on request.
‘Health and adult social care information…could potentially be of considerable assistance in bringing benefit to individuals,’ he said during the committee stage of the bill last week.
‘I acknowledge that we may wish to bring such bodies within the scope of these powers in future.'
Information access breach
Dr Porter has been raising concerns about the bill since October last year in multiple letters to the Department for Culture Media and Sport, which is overseeing the bill.
‘The BMA continues to be extremely concerned that clause 29 of the bill would undermine patient confidentiality,' a letter from November warned. ‘[It] would permit an unprecedented sharing of confidential information in a very wide range of unspecified circumstances.'
Concerns about the loss of the common law duty of medical confidentiality have also been flagged in a briefing by the GMC.
A GMC briefing, seen by BMA News, warns that the bill will allow ‘the bulk sharing of individuals’ confidential medical information, in a wide range of unspecified circumstance without any regard to the the necessity or proportionality of disclosures, the implications for individuals or the wider public interest in having a confidential medical service’.
‘This could be very damaging for confidence in doctors and health services,’ the GMC briefing adds. ‘We would like to see health data excluded from the new powers to share information, on the grounds that such a significant change in public policy should not be achieved through secondary legislation.’
Former BMA ethics committee chair Anthony Calland said the bill meant medical confidentiality ‘going completely out of the window’.
‘There are no checks and balances in the bill; no promises on security,’ he added. ‘No one in the UK will be able to say their medical records are truly confidential,’ he added.
‘Even free text, where most of the most confidential data is actually stored in patient records, can now be made electronically available.’
A spokesperson for the Government said: ‘Health bodies are not currently within the scope of the public service delivery or other powers in Part 5 [Digital Government, which includes Clause 30] of the Digital Economy Bill.’
The BMA is continuing to raise concerns about the bill ahead of its report stage, which begins in Parliament next week.
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