A GP is calling for a judicial review of the government’s consent plans for the NHS Care Records Service (NCRS).
Dr Paul Thornton, a GP in Warwickshire with a special interest in patient privacy and confidentiality law, has prepared a nine-page document setting out why he believes the government’s proposals for the NCRS are unlawful and pose what he describes as “grave and imminent risks” to both civil liberties and public health.
Dr Thornton hopes that the paper will help to raise the debate on the legal issues. He says that a judicial review is “imperative” and claims that so far there has been little legal opinion from the viewpoint of the individual seeking to maximise protection of his right to doctor-patient privacy.
Dr Thornton’s document aims to focus on areas of concern in the law, including common law, the Human Rights Act and the Data Protection Act, which he believes provide grounds for judicial review.
The introduction to the document also highlights a draft consultation paper on sealed envelopes, one of the health department’s key tools in its confidentiality package for the NCRS, circulated in November by the Department of Health.
The draft reveals that technical constraints means certain types on information may never be able to hidden by a sealed envelope included information that is part of an image, such as scanned letters, information first recorded on IT systems with record structures that are not compatible with sealing and information recorded after a patient’s death.
Dr Thornton adds that a previously announced delay in creating sealed envelopes will in itself be unlawful. As things stand, summary records are due to start going live this year but sealed envelopes will not be ready until late 2007 or early 2008.
The document states: “Without the ‘sealed envelopes’ the proposals cannot be reconciled with privacy legislation. But even if the proposals are implemented with the access controls as originally described there would still be clear grounds to question their lawfulness.”
The document says ministers have given assurances that patients will be able to have their information excluded from the database entirely if they choose but says this choice is not protected in law and there is no clarification of how such an opt out will function.
Dr Thornton adds: “If the only alternative being recognised is the use of pen and paper records this would be detrimental to the care of patients and any consent could not be regarded as freely given. Alternative computerised options such as the use of local databases have been discounted by the Department of Health.”
The document also argues that plans to allow health workers to override sealed envelopes if justified by public interest, statute or court order are “fundamentally different” to the way heath professionals currently work.
It adds: “In established practice the clinician deciding whether patient confidentiality can or should be justifiably and lawfully overridden already has lawful knowledge of the information concerned. In this national database scenario the clinician making the decision does not already have knowledge of the information concerned and, explicitly, is one of the third parties from whom the patient wants to withhold the information.”
Dr Thornton, who is the Royal College of General Practitioners’ nominee to an EU working party investigating patient confidentiality and vulnerable patient groups, also argues that the Data Protection Act’s test of necessity for when data processing can be allowed without the consent of the data subject is not met by the present proposals.
Dr Thornton has sent his document to the BMA and RCGP and hopes these organisations will add to the pressure for a judicial review and for a change in approach from the health department and Connecting for Health.
He told EHI Primary Care: "There is a number of arguments in the paper and any one of them would be sufficient to oblige them to rethink their proposals."
Dr Paul Cundy, chairman of the British Medical Association’s GP IT committee, backed Dr Thornton’s calls for a judicial review.
He told EHI Primary Care: “I think this legal challenge is absolutely sound and I think Connecting for Health and the Information Commissioner have been rather devious in trying to avoid the issue.”
Dr Cundy said the BMA’s General Practitioner Committee will be debating the health department’s consent plans for the NCRS next week.
He added: “What we are recommending to the committee is that all data should be retained on an opt-in basis.”
The Royal College of General Practitioners ethics committee current recommendation is also that the College should back an opt-in model for the NCRS although the College has yet to decide on its stance.
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