So, the government, roused from its torpor by the public outrage at the care.data proposals, and the apparent sale of 47 million patient records to actuaries, is said to be proposing, as a form of reassurance, amendments to the Care Bill. The Telegraph reports that
Jeremy Hunt will unveil new laws to ensure that medical records can only be released when there is a “clear health benefit” rather than for “purely commercial” use by insurers and other companies.
Ministers will also bolster criminal sanctions for organisations which breach data protection laws by disclosing people’s personal data. Under a “one strike and you’re out” approach, they will be permanently banned from accessing NHS data
One needs to be aware that this is just a newspaper report, and as far as I know it hasn’t been confirmed by the minister or anyone else in the government, but if it is accurate, I fear it shows further contempt for public concerns about the risks to the confidentiality of their medical records.
The first of the reported amendments sounds like a statutory backing to the current assurances that patient data will only be made available to third parties if it is for the purposes that will benefit the health and social care system (see FAQ 39 on the Guide for GP Practices). It also sounds like a very difficult piece of legislation to draft, and it will be very interesting to see what the proposed amendment actually says – will it allow secondary use for commercial purposes, as long as the primary use is for a “clear health benefit”? and, crucially, how on earth will it be regulated and enforced? (will properly resourced regulators be allowed to audit third parties’ use of data? – I certainly hope so).
The second amendment implies that the Data Protection Act 1998 (DPA) will also be amended. This also sounds like a difficult provision to draft: the Telegraph says
Those that have committed even one prior offence involving patient data will be barred from accessing NHS medical records indefinitely as part of a “one strike and you’re out” approach
But what do we mean by “offence”? The Telegraph falls into the common error of thinking that the Information Commissioner’s Office’s (ICO’s) powers to serve monetary penalty notices (MPNs) to a maximum of £500,000 are criminal justice powers; they are not – MPNs are civil notices, and the money paid is not a “fine” but a penalty. The only relevant current criminal offence in the DPA is that of (in terms) deliberately or recklessly obtaining or disclosing personal data without authority of the data controller. This is an either-way offence, which means it currently carries a maximum sanction of a £5000 fine in a magistrates court, or an unlimited fine in Crown Court (it is very rare for cases to be tried in the latter though). Prosecutions under this section (55) are generally brought against individuals, because the offence involves obtaining or disclosing the data without the authority of the data controller. It is unlikely that a company would commit a section 55 offence. More likely is that a company would seriously contravene the DPA in a manner which would lead to a (civil) MPN, or more informal ICO enforcement action. More likely still is simply that the ICO would have made a finding of “unlikely to have complied” with the DPA, under section 42 – a finding which carries little weight. Are prior civil or informal action, or a section 42 “unlikely to have complied” assessment going to count for the “one strike and you’re out” approach? And even if they are, what is to stop miscreant individuals or companies functioning through proxies, or agents? or even simply lying to get access to the data?
Noteworthy by its absence in the Telegraph reports of the proposed amendments was any reference to the one change to data protection law which actually might have a deterrent effect on those who illegally obtain or disclose personal data – the possibility of being sent to prison. As I and others have written before, all that is needed to achieve this is for the government to commence Section 77 of the Criminal Justice and Immigration Act 2008, which would create the power to alter the penalty (including a custodial sentence) for a section 55 DPA offence. However, the government has long been lobbied by certain sections of the press industry not to do so, because of apparent fears that it would give the state the power to imprison investigative journalists (despite the fact that section 78 of the Criminal Justice Act 2008 – also uncommenced – creating a new defence for journalistic, literary or artistic purposes). The Information Commissioner has repeatedly called for the law to be changed so that there is a real sanction for serious criminal data protection offences, but to no avail.
Chris Pounder has argued that the custodial sentence provisions (discussion of which was kicked into the long grass which grew up in the aftermath of the Leveson inquiry) might never be introduced. Despite the calls for such strong penalties for misuse of medical data, from influential voices such as Ben Goldacre, the proposals for change outlined by the Telegraph seem to support Dr Pounder’s view.
One of the main criticisms of the disastrous public relations and communications regarding the care.data initiative is that people’s acute concerns about the security of their medical records have been dismissed with vague or misleading reassurances. With the announcement of these vague and probably ineffectual proposed legal sanctions, what a damned shame that that looks to be continuing.