Doctor, Doctor, I feel like an establishment figure with something to hide

The Daily Telegraph reports today that the Department of Health will only publish information about medical outcomes with the consent of the doctors concerned, following receipt of legal advice about the data protection implications.

To use the accepted technical term, this is bollocks.

Firstly, we should question whether this is personal data at all. The information concerned is about the state of health of a patient. It is linked to an individual doctor admittedly, but the data itself is about the patient and their outcome. I think there is a legitimate argument about whether the state of a patient’s health is anybody’s data but the patient’s. I wouldn’t argue that the number of FOI requests that were answered within the 20 working day deadline in Wigan Council between 2005 and 2009 was my personal data, even though I was involved in dealing with virtually all of them, even if though inferences could (and were often) drawn about my competence as a result of them. It’s entirely possible that we will all draw conclusions from the publication of this data, but whether it’s personal data is debatable. I’m unconvinced.

But for the purposes of this blog, let’s accept DoH’s premise. This is personal data, and it is the data of the doctors. In order to satisfy the first Data Protection principle, they have to do three things. They have establish that the use (in DP terms, the processing) of the data is

  • Fair
  • Lawful and
  • According to a set of conditions

Fair has two meanings – the dictionary version and the specific data protection version (i.e. telling the person how their data is used). Lawful means not breaching any other law – confidentiality and the Human Rights Act articles on privacy or free speech being two obvious examples. As they’re asking the doctors for consent, DoH must be convinced that they have satisfied the first two and have moved onto the conditions. Phil Bradshaw (@IGWales on Twitter) suggested to me that they may be relying on consent to bolster fairness, but I don’t see how that works. Principle 1 says fair, lawful and according to a set of conditions. They have to be convinced it’s fair already, or they wouldn’t be asking for consent; you need all three.

So what are the conditions? Consent is clearly one, and absent any contractual or legal requirements or any overriding need to protect patients’ vital interests, I accept that only one remains. That condition is the most verbose, but I am certain it is the right one:

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

Let’s break that down.

The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed

The processing, in this case, the publication of the personal data is plainly for the purposes of a legitimate interest i.e. the scrutiny of medical professionals’ performance. The Telegraph quotes a statement issued by the Royal College of Surgeons that states “We see this as a watershed moment for the profession and strongly urge surgeons to take part in this important initiative”. I defy anyone to argue that this is not a legitimate interest, and publication is necessary to achieve it.

So what’s next? In order for the condition to apply, the processing must not be “unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interest of the data subject”. In order for this condition to be rejected in favour of consent, we have to see evidence of “prejudice” or harm to the rights, freedoms of legitimate interests of doctors. So where is this harm? What damage is being done here? There is obviously a risk of misinterpretation and misreporting – a surgeon who dealt with hopeless cases would clearly have a worse survival rate than one who dealt with more healthy patients. But assuming that this prejudice exists and cannot be mitigated either by statistical correction, additional context or – God Help Us – trusting the dumb public to exercise their own judgment, that is not the end of the story.

The condition only falls if the prejudice – which has to be identified – is unwarranted. Admittedly this bit is a matter of judgment, and this might be coloured by whether you think doctors are living saints or evil bastards who killed 75% of your Grandparents. But leaving my personal feelings aside, any identified harm has to be shown to be unjustified. The cumulative benefit of society being about to have an adult conversation about medical outcomes, contrasted with the theoretical fear of doctors that they will be unfairly stigmatized. I know how I vote – what do you think? Is this a decision that should be left to the individual doctors, or do you think any harm is – in the wider public interest – warranted.

The Telegraph also reports a “senior Whitehall source” as saying that the situation is “farcical” which makes “a mockery of the principle of NHS transparency”. Assuming you don’t believe that unattributed comments are just as likely to be made up as true, then Whitehall has a solution to the dilemma, even if they lack the intestinal fortitude to ignore their legal advice and go for legitimate interest as Uncle Tim advises. One of the conditions I ignore above is the existence of a legal obligation – if Whitehall believed in transparency, they could have (and still can) put a clause in relevant legislation making this publication mandatory.

Even if they can’t stomach that, yet another solution lies close at hand. When the lists are published, they should be complete. Any doctor who withholds their consent should be included in the list with a suitable label (‘Withheld Consent’ or ‘Would Rather You Didn’t Know’). And then, as is always the case, Whitehall’s self-serving, flatulent Transparency gives way to rigorous, robust FOI. We ask for the relevant information for those that said No. Even if the Information Commissioner chose not to order disclosure (and I’d give them the benefit of the doubt on this one), the Tribunal and the Courts could have their say. If a judge tells me I’m wrong on this one, I’d accept it, but I honestly believe that the case for this disclosure is unanswerable, and I have faith that the courts would agree. And assuming if the DoH won’t be straight with us all about who refused, I’m sure someone will use FOI to get the names, and the process starts from there.

Maybe I am too cynical. Maybe every doctor whose consent is solicited will vote for transparency and accountability. But if not, they’re on the wrong side of history. Through this initiative, or with the assistance of FOI or leaks, this information will end up in the public domain. And years from now, we’ll wonder what all the fuss was about.

UPDATE: I’m indebted to Patrick Leahy for providing me with this link to the Royal College of Surgeons’ statement on this issue. Obviously, they’re not associated with my view in any way, but their commitment to the need for more openness is very welcome.

Comments

  1. It would be interesting to see the legal advice the DoH received. I would request it, but I’m so bored of going through the process that would no doubt ensue (delay, time-limit extension to consider public interest, refusal, internal review, delay etc etc) that I’m not sure I can be bothered.

    But I have no doubt your analysis is right, with one caveat: have doctors already been given a DoH assurance that if they don’t consent their information won’t be published? If so, they have a “legitimate expectations” card to play. I still don’t think it would/should swing things in favour of non-disclosure, but it’s an extra factor.

    At root, this has all the signs of being another example of data protection being (ab)used to justify not doing something the organisation would rather not have to do.

  2. p.s. was it DoH who received the legal advice? I see the Telegraph quotes the Royal College of Surgeons as saying it was “the NHS”. Have you seen anything that clarifies this?

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