Health and Social Care Bill
Medical Regulation - sharing of information – Clause 116
April 2008
The clause provides a broad framework for a duty of collaboration between healthcare organisations in circumstances where there is a significant risk to patients or the public. The detailed requirements, and important safeguards needed, will be specified in secondary legislation and guidance.
The regulations will require NHS Trusts and other bodies to provide and share information about healthcare workers in circumstances where a person may constitute a threat to the health and safety of patients. The BMA has identified a potential problem with this clause from an employment law perspective.
Clause 116 (1) a) refers to information “which may show that the worker is likely to constitute a threat to the health and safety of patients” (our emphasis). The BMA’s legal advice indicates that if an employer were to pass on unproven (in the sense that there has been no investigation) damaging (in that it might affect an employee’s reputation) information without the employee’s knowledge, this could be the basis of a claim that the employer had breached an implied term in his/her employment contract of trust and confidence.
The BMA therefore believes that information can only be shared where the employer has just cause. This would necessitate a full and proper investigation and for the employee to be informed of the allegations.
The BMA seeks an explanation of the intention of how and when the powers will be used.
- Can the minister clarify the procedures for the sharing of such information, including the need to inform the subject of the investigation at the earliest possible stage about the allegations being investigated?
- What assurances can the minister give that the information shared would be kept in strict confidence?
- Page 62, line 13 defines a “designated body”. Can the minister clarify which other bodies he intends to prescribe for the purpose of this section?
- Can the minister give an outline on what the content of the secondary legislation and guidance would be?
Questions
- What are the “appropriate circumstances” under which “unproven information” may be shared?
- If the intention is that the powers will be used only in cases where there is prima facie evidence of a significant risk to patient safety and where an appropriate investigation is under way, can the minister give examples of cases when information sharing could be an integral part of the investigation?
- What guidance will there be for PCTs to consider all relevant factors, including assessing the degree of urgency, the potential threat to patient safety and the potential contribution which information from one organisation might make to the investigation, before making the decision to share the information?
- Can the minister clarify circumstances where it is felt that it may be necessary to share information which is unproven at the time the information is shared?
- What onus will there be on the organisation receiving the information to treat it with the same safeguards of confidentiality as they would if they received the allegation direct from a member of the public?