NHS England has been granted "three-months’ breathing space” to allow patient-identifiable information to be shared with commissioners and support services.
Section 251 of the NHS Act 2006 allows the Secretary of State for Health to set aside the common law duty of confidentiality in specific circumstances where anonymised information is not sufficient and where patient consent is not practicable.
The NHS Information Centre traditionally held this exemption to allow it to send Secondary Uses Service data to primary care trusts.
However, PCTs no longer exist so there is no longer a legal basis for the flow of information.
NHS England applied to the NHS Ethics and Confidentiality Committee for a 251 exemption last month, but was asked for more information. Without it, the new commissioners could not handle patient identifiable information such as SUS data.
However, NHS England’s director of data and information management systems Ming Tang told EHI it was granted a three-month extension to use the exemption last Friday while the longer-term situation is resolved.
“There would have been a problem, but we got approval on Friday,” she added.
Tang explained that it was not a straight match from PCTs to a mixed economy of clinical commissioning groups and commissioning support units.
“Those divisions made it slightly more difficult for the mapping exercise so we got a three-month extension to continue to flow that data to the CCGs and CSUs that need it,” she explained.
NHS England’s revised application for a 251 exemption will be considered at the first meeting of the new Health Research Authority’s Confidentiality Advisory Group, on April 19.
The group will then make its recommendation to the health secretary.
Tang said the exemption gave NHS England “three-months’ breathing space” to manage the transition to the new commissioning environment and take into account the outcome of Dame Fiona Caldicott’s review of information governance in the NHS.
The longer-term solution would involve a register of organisations with 251 exemption approval.