Month: June 2010

PATIENT INFORMATION – MADE FOR SHARING?

Posted on | by Timothy Pitt-Payne QC

Sharing patient information in the NHS has proved highly controversial.  We posted about this subject here a while back.  Now there’s a new report from UCL researchers, suggesting that two key recent NHS IT programmes for handling patient information have so far delivered only modest benefits.   A short summary appears here, with links to the executive summary and the full report.  A research paper based on the findings has been published in the BMJ.

The three year UCL project looked at the Summary Care Record (SCR) and at Healthspace, both introduced as part of the NHS National Programme for IT. 

The SCR is an electronic summary of key health data, taken from GP records and other sources, and available to a range of NHS staff.   According to the UCL report, very few people had chosen to opt out; less than 1% of those who had been sent the relevant information.  But SCRs were not yet widely used; even where available, they were only accessed in 21% of clinical encounters.  So far there was little evidence that SCRs improved patient safety or reduced consultation length or hospital admissions.

HealthSpace is a tool that allows patients to update their own health information, plan healthcare appointments, and contact their GP via a secure internet connection.  So far, take up has been very low.  According to the UCL study only one person in 200 who was invited to open a basic account did so, and only one in 1000 opened an advanced account.

The report’s lead author, Professor Greenhalgh, is quoted as saying:  “This reseach shows that the significant benefits anticipated for these programmes have, by and large, yet to be realised – and that they may be acheived only at high cost and enormous effort … It serves to demonstrate the wider dilemma of national databases:  that scaling things up doesn’t necessarily make them more efficient or effective.”  

VETTING SCHEME HALTED

Posted on | by Timothy Pitt-Payne QC

According to a report on the BBC website this morning, implementation of the Safeguarding Vulnerable Groups Act 2006 is to be put on hold.  The Act introduces a requirement that a wide range of individuals working with children or vulnerable adults must register with the Independent Safeguarding Authority (ISA).  Registration was set to begin on 26th July, and was intended eventually to cover some 9 million people.  However, today the Government will announce that registration will be halted, pending a review of the 2006 Act, which is expected to lead to a scaling-back of the scheme.

The ISA will continue to be responsible for operating the two barring lists set up under the 2006 Act, which prohibit listed individuals from working with children and with vulnerable adults respectively.  And the provisions for standard and enhanced CRB checks (under Part V of the Police Act 1997) will continue to operate as before.

 

PRIVACY IN THE DOCK

Posted on | by Anya Proops KC

It is a fundamental rule of our justice system that it should be administered in public (Attorney General v Leveller Magazine Ltd [1979] AC 440). In the criminal justice system this rule generally operates so as to require individuals who are charged with an offence to give their home address in open court. But what is the position if the accused claim that confirming their address in open court will expose them and their family to attack? Are they entitled to demand that their address be given in camera? This is an issue which was recently posed in the case of R(Harper) & Anor v Aldershot Magistrates Court & Anor [2010] EWHC 1319 Admin. In this case, two senior police officers who had been charged with the offence of misconduct in public office sought to judicially review a ruling of the Magistrates Court that they must each confirm their address in open court. The officers, who had been suspended from duty, claimed that the ruling was unlawful because there was a real and genuine fear of reprisal and the safety of the officers and their family was at risk. The Court rejected the claim on the basis that any fears which the officers may have had were unreasonable, particularly because publication of their address would not in fact enhance any risk that they faced (notably, the addresses could simply have been accessed through the electoral roll). In reaching the conclusion that the ruling was lawful, the Court took into account not least Lord Diplock’s judgment in Belfast Telegraph Newspaper Limited’s Application [1997] NI QBD 309. In that case, Lord Diplock held that information may be withheld in criminal proceedings on the basis that this was necessary to serve the public interest in the administration of justice but that it could not be withheld simply in the interest of protecting ‘the private welfare of those caught up in that administration’ (at page 314F). The Court in Harper noted that there might be circumstances in which the individual’s well-being may overlap with the administration of justice such that the information can be withheld in the public interest. However, these were not the facts of the instant case. Notably, there is no analysis in the judgment of the application of Article 8 ECHR. Nor further is there any explicit consideration of the rights of the families of the accused. Query what role these considerations would have played if the facts of Harper had been less clear-cut.

INFORMATION LAW AND THE NEW POLITICS

Posted on | by Timothy Pitt-Payne QC

I gave a paper at the last 11KBW information law seminar, on the new Government’s plans for information law.  An updated version of the paper is now available here.  It takes account of the Coalition’s programme, published on 20th May.

The new Government is putting forward a number of proposals for disclosing public sector information on a regular and routine basis, rather than on request:  for more detail see this posting on the official website for the Prime Minister’s office. On 4th June 2010 the Government disclosed a considerable amount of information from the COINS database (standing for Combined Online Information System) relating to public spending in 2009/10.  In total there are thought to be over 3 million separate items of information in the new release.  See here for the raw data; and see here for a tool designed by the Guardian, intended to help navigate the newly released information.  No doubt the COINS release will lead to a number of follow-up FOIA requests relating to specific items of expenditure; it will be interesting to see how those requests are handled by Government departments.  

LATEST TRIBUNAL DECISION ON THE ‘PERSONAL DATA’ AND ‘COST OF COMPLIANCE’ EXEMPTIONS

Posted on | by Robin Hopkins

The Tribunal’s first decision in the case of Alasdair Roberts v IC and Department for Business, Innovation & Skills (EA/2009/0035) established the controversial principle that the s. 36 exemption only applies where the opinion of the ‘qualified person’ was reached by the time the request was responded to: see Anya Proops’ post on that decision. DBIS was therefore not entitled to rely on s. 36 in refusing Mr Roberts’ request. Its refusal was, however, upheld in the Tribunal’s second decision in this case, which provides the latest word on the s. 40 ‘personal data’ exemption.

 

In particular, this case concerned the first data protection principle (processing must be fair and lawful and meet a Schedule 2 condition) and paragraph 6(1) of Schedule 2 to the DPA 1998. That condition is that “the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject”.

 

Two notable points about the application of this principle emerge.

 

First – on whether the processing would be fair – senior civil servants (Grade 5 or above) do not have a reasonable expectation of anonymity in respect of any document, no matter how sensitive. More junior civil servants might have reasonable expectations: this will be less cogent where the job is “public-facing” (such as a Job Centre manager), and more cogent where the information is controversial (such as information about animal testing).

 

Secondly – on legitimate interests of ‘parties to whom the data are disclosed’ – the Tribunal found that the requester’s strong individual interest (for research purposes) was not sufficient to override the fact that this information was of very little interest to the world at large (to whom disclosure is, in the eyes of FOIA, to be made).

 

This decision also offers further guidance on what can be included within the ‘cost of compliance’ for s. 12 purposes. The Tribunal accepted the established principle that costs of redacting names are to be excluded, but qualified this as follows: “that may be appropriate where the task is simply to locate individuals’ names and redact them… but where, as here, the process requires a judgment to be made, document by document, balancing the various criteria we have identified, then we believe that much, if not all, of the process should be regarded as retrieving from each document the information which requires to be disclosed and therefore properly included in the cost estimate”.