Dr John Chisholm, chair of the BMA medical ethics committee, explains the BMA's views on the Memorandum of Understanding.
The Chair of the House of Commons Health Committee, Dr Sarah Wollaston, has written to the Chief Executive Officer of NHS Digital to request immediate withdrawal from the Memorandum of Understanding between NHS Digital, the Home Office and the Department of Health, and the cessation of sharing data with the Home Office for immigration tracing purposes.
The British Medical Association (BMA) strongly supports those requests from the Health Committee. The Memorandum of Understanding (MoU) had been put in place to formalise a practice that had been going on for some years, whereby confidential information has been shared for the detection of individuals who may have committed immigration offences. That practice was an egregious and indefensible breach of proper standards of confidentiality. The potential consequences for trust in the National Health Service and in confidentiality are dire. People will understandably be deterred from seeking the healthcare they need.
The position of those defending the MoU seems to be that the disclosures are in ‘the public interest’ and would be supported by the public. This approach constitutes a weakened defence of confidentiality and sets a precedent for lowered thresholds for disclosure in other areas and circumstances. It could so easily be extended, with similar ‘justification’, to cover the release of information for the detection of minor criminal offences or the tracing of debtors.
The General Medical Council, which regulates doctors, sets out guidance about disclosures in the public interest. It rightly states that ‘There is a clear public good in having a confidential medical service. … Confidential medical care is recognised in law as being in the public interest.’ The GMC defines the limited circumstances in which disclosures without consent can be permitted, considering ‘the possible harm, both to the patient and to the overall trust between doctors and patients, arising from the release of that information.’ In relation to crime, such disclosures are permitted ‘to assist in the prevention, detection or prosecution of serious crime.’ The GMC, quoting from Confidentiality: NHS Code of Practice, guides doctors by giving examples: murder, manslaughter, rape and child abuse, and serious harm to the security of the state and public order. Clearly, disclosures in respect of immigration offences are substantially below that threshold for disclosures in the public interest; few if any doctors would see such breaches of confidentiality as appropriate. Indeed, NHS Digital deliberately excludes its own clinicians from decision-making on requests for disclosure under the MoU, to protect them from acting in conflict with GMC guidance.
The current version of Confidentiality: NHS Code of Practice dates back to 2003. The Department of Health rightly wishes to update the Code in the light of more recent legislation and case law. However, it is essential that the revision process is not used to achieve an inappropriate lowering of the current threshold for disclosures in the public interest.
The BMA, at its policy-making Annual Representative Meeting last June, passed a motion deploring the Memorandum of Understanding.The BMA is far from alone in expressing grave concerns: the National Data Guardian, the GMC, Public Health England, a number of charities and now the Health Committee have all spoken out.
The National Data Guardian, Dame Fiona Caldicott, rightly states that ‘any perception by the public that confidential data collected by the NHS is shared for a purpose they had not anticipated or without appropriate controls may well lead to a loss of people’s trust’. She says that there should have been more public debate about where the balance should be struck between the public interest in an effective immigration service and the public interest in a confidential health service. She notes that the public interest test NHS Digital applies does not take account of whether the alleged crime is serious. She emphasises the importance of public trust, transparency, the public interest, governance arrangements and the potential impact of the MoU on health-seeking behaviour, and calls for independent oversight and research.
The GMC rightly states that ‘the existence of a confidential medical service is itself a matter of public interest’, identifies ‘potential damage to public trust’, and says that the MoU does not properly weigh in the balance conflicting public interests.
Public Health England fears ‘unintended and serious consequences affecting the health of individuals and the risk to the public health of the wider community’, and points to threats to the detection, diagnosis and treatment of communicable diseases, deterrence to migrants seeking healthcare, the risks to individual and public health and NHS costs of late diagnosis, for example of TB, HIV infection or viral hepatitis, the threat to screening processes, and the effect on the doctor-patient relationship and trust in healthcare professionals.
Better protections and guarantees are urgently required, including a higher threshold for releasing information and independent oversight of disclosures. NHS Digital must take rapid action; constructive discussions between all interested parties are needed. Otherwise, the consequences for individual and public health, for the prevention of the spread of communicable diseases, for health-seeking behaviour, and for patient and public trust in the NHS and in the confidentiality of the doctor-patient relationship, will be gravely damaging.