What powers are granted to the health secretary under clause 67?
Clause 67 gives health secretary Alan Milburn the authority to disclose identifiable patient information, such as personal medical records, to third parties for research. This could be done without consent and despite any legal objections. It also enables Mr Milburn to block organisations outside the NHS from using anonymised data for research. Fines of up to £5,000 could be imposed on anyone undertaking research without his permission.
Why does the health secretary want these powers?
The Department of Health says the powers will both safeguard patient information and allow the NHS to compile registers on diseases such as cancer more easily, improving the care available. A spokeswoman said the clause is partly in response to a case where a pharmaceutical company bought prescription information from pharmacists, which was not necessarily in patients' best interests.
What are doctors' and patient groups' fears?
The British Medical Association and the Patients Association believe the powers are "all encompassing" and "totalitarian". They warn the clause would outlaw independent scrutiny of the NHS, as information could be blocked from outside bodies if it was considered of detriment to the NHS. This could prevent academic departments, patient groups and community health councils from publishing reports on NHS standards and treatment, as it would undermine staff morale, they argue. They say this power could also be used to suppress information that might embarrass the government, such as doctors' workloads, hospital waiting times, postcode lotteries of care, the use of human organs and deaths due to hospital-acquired infections. The BMA also warns that the clause would destroy patient confidentiality.
What does that mean?
Clause 67 would overturn the common law of confidentiality, allowing the health secretary to force doctors to hand over medical data that identifies individual patients. Dr Fleur Fisher, chairman of the BMA Foundation for Aids and former head of the BMA's ethics committee, says this would destroy the doctor-patient relationship. She warns that patients would be wary about what they could tell their doctor. Disclosure of mental health diagnoses, genetic abnormalities or sexually transmitted infections could affect patients' careers, insurance and personal lives.
How does this sit with Alan Milburn's pledge to improve transparency in the NHS?
GPs argue that the clause goes against principle 10 of the NHS plan, which states: "The NHS will respect the confidentiality of individual patients and provide open access to information about services, treatment and performance."
Are these fears justified?
A DoH spokeswoman said that any information would be released only if it improved overall patient care. "There would be specific obligations of confidentiality on those persons receiving the information and it would not be available across departments," she said. However, she would not clarify what information might be blocked from outside bodies.
How will the powers be regulated?
A DoH spokeswoman said the regulations would be reviewed annually. But the government's critics warn that the abolition of community health councils means they would be regulated by less independent patient advocates appointed by hospitals. They say this severely limits independent checks on the powers.
What do opposition parties feel about it?
Doctors' and patients' concerns are shared by the Conservatives and the Liberal Democrats. Liberal Democrat health spokesman Paul Burstow, MP, wants the clause withdrawn. "It goes right to the heart of freedom of information and confidentiality. The fact that doctors and patients have not been consulted only makes one suspicious of how these powers will be used," he commented.
