Who do we trust?
The price of freedom is eternal vigilance: and our four articles
illustrate both the truth of this aphorism and the difficulties
encountered in the pursuit of it. Of course, it had to come. Long gone
are the days when a confidentiality policy for a large acute hospital
realtime system could be based on the assumption that it should be no
less secure than the existing manual system. The dangers that might
ensue, as technology and changing social attitudes made improper
access to confidential records increasingly possible, are no longer
theoretical. Those dangers are now very real. As the concepts embodied
in Information for health, The NHS plan, and the National
Programme for IT move slowly towards fruition, so also comes the day
when interoperability and interaccessibility across healthcare and
socialcare records becomes a reality. How can we be certain that the
information contained in those records is secure, and safe to use?
Three of our articles describe measures designed to give us that
assurance. In her article, Dr Janine Brooks, the Caldicott Guardian
for the NHS Information Authority, explains the vital role that
guardians have to perform across both healthcare and socialcare in
ensuring only the proper use of patients’ information, and the
objective of the new UK Council of Caldicott Guardians to ensure clear
guidance and uniform application of that guidance across the country.
In their article, Damian Mitchell, NHSU, and Mark Johnson of Niche
Healthcare Consulting describe the need to achieve proper awareness of
the confidentiality of prisoners’ medical records, and the measures
taken recently to bring that about. And in his article, Benedict
Stanberry, a lawyer with a special interest in information governance
in healthcare, points out how keeping patients’ medical records
private has not only been rebranded but also redefined in the most
recent update of the NHS’s Confidentiality Code of Practice.
Our fourth article looks at another side of the coin: the public’s
confidence in the NHS’s ability to keep their medical records private
and confidential. Barry Barber, Director of Health Data Protection
Ltd, reviews the issues that surround and, which in many cases might
well threaten, both safety and confidentiality as integrated systems
become ever nearer. Of particular note are those many elements of
legislation, which either singly or in combination, could erode our
earlier concepts of medical confidentiality.
The old and the new points of view are in no way opposed. Both
represent a profound belief in the need to ensure that the information
in patients’ and clients’ records should be safe to use so far as
treatment is concerned, and that they should be available only to
those properly concerned with that treatment. It is, of course, at
this point that the argument becomes difficult. Are there not wider
considerations that should be taken into account, that would allow
access to records — appropriately anonymised — in order to further
studies in epidemiology (cancer registries are a case in point), or
other aspects of public health (vaccination rates, for example)? Most
would agree that such access can only be beneficial. But are there
other, wider, considerations that should also be taken into account —
access, not just to collective anonymous data, but to personal
individual data? And what might such considerations be?
The national interest is one that springs to mind, and it is at
that point that the vital question of trust emerges. Even within
government, never mind public opinion, views on the national interest
differ. One has but to recall the Matrix Churchill affair when Customs
officials pursued the law, whilst the Foreign Office pursued what was
considered to be the wider national interest. In the recent Gunn case,
the Crown Prosecution Service attempted a prosecution under the
Official Secrets Act, which was then held to be inadvisable. In
circumstances such as these, one can uncomfortably foresee a
circumstance when a Caldicott guardian, pursuing nationally agreed
guidance, encounters perceptions of the wider national interest that
negate that guidance. It all comes down to trust. If there is public
trust in those who at the time determine what is the national
interest, such problems might not arise. But if that trust is eroded,
and at a time when many consider the independence of the judiciary and
even the constitution to be gravely under threat, then every move that
might be deemed to attack the confidentiality of personal healthcare
information must be viewed with the greatest care. Jefferson was
right: the price of freedom is indeed eternal vigilance.
Michael Fairey
