What does the Health and Care Bill mean for information governance and data sharing?12/07/21
The Bill contains a number of modifications and new provisions which, if brought into law, will affect how information is used and shared by health and care organisations:
- As regards integrated care boards (ICBs), NHS England will have a power to require ICBs to provide information to it (proposed s. 14Z58). This is a clearer, singular power as compared to NHS England’s existing powers to obtain information from CCGs, which are split across a number of sections and apply only in certain circumstances.
- Integrated Care Boards will be subject to similar transparency obligations to CCGs, including being subject to the Freedom of Information Act. They will also be required to produce annual quality accounts under the Health Act 2009. An integrated care board will be faced with a similar general restriction on disclosure of information, other than in circumstances defined in legislation. This is similar to the restriction on CCGs disclosing information in s. 14Z23 of the NHS Act 2006.
- Integrated care boards will have a power to require any of their partner bodies – NHS Trusts and Foundation Trusts – to provide information to the ICB.
- NHS England becomes subject to a general power of direction from the Secretary of State to provide information (proposed s. 13Z6 NHS Act 2006), and must also provide certain regulatory information to the Competition and Markets Authority (proposed s. 13SB NHS Act 2006).
- Significant amendments are made to the scope and effect of ‘Information Standards’ which currently may be published by NHS Digital under the Health and Social Care Act 2012. The effect of these changes are that whilst currently public bodies and those providing health and adult social care services commissioned by them must ‘have regard’ (i.e. think about, but not necessarily comply with) to Information Standards, in the future any public body, and bodies providing services subject to CQC regulation (i.e. also including private providers providing private services) will need to comply with them. Further regulations will set out the procedure for setting information standards and may modify/waive compliance requirements.
- A new power/duty is created (proposed s. 251D Health and Social Care Act 2012) whereby a public body which has functions in connection with health and social care may require commissioners and providers (including non-NHS providers) to provide it with anonymised information connected to health and care services (subject to restrictions in regulations). NHS Digital gains a power to collect information from private providers, and the Secretary of State gains a power to obtain information from any provider of adult social care services. Further provisions create controls over how such information may be used, and enforcement powers for non-compliance.
- NHS Digital may be further required to maintain systems to monitor medicines' safety, further to arrangements arising from the Medicines and Medical Devices Act 2021; the provisions in this area include a new, specific criminal offence of inappropriate disclosure of information obtained using powers connected with medicines safety. This is similar to offences associated with other regulators handling sensitive information.
- The arrangements for the Health Service Safety Investigation Branch (HSSIB) include extensive provisions relating to HSSIB’s powers to obtain information (including offences for non-compliance); how they determine how sensitive information, including personal data, should be included in reports that they complete; and the legal status (admissibility) of reports that HSSIB produce.
Comment: Taken together, these provisions create a more comprehensive framework for information to be obtained by, used and shared between different parts of the health and care system. The provisions should be read alongside the Government’s draft Health Data Strategy, which sets out the government’s policy ambitions and intentions for further legislation (for instance, around changes to the some of the arrangements for sharing identifiable information for certain non-direct care purposes), and careful consideration will need to be given to understanding the scope of the finalised powers and duties when the Bill becomes an Act, including how they interact with the broader legal framework for using and sharing confidential information and personal data.
For more information, please contact Andrew Latham.
Other highlights from the Health and Care Bill
We have prepared a series of “bite sized” updates on those aspects of the Bill that are likely to have most practical impact on your day-to-day work.
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