New BMA guidelines on patient confidentiality have been branded unlawful by the Association of Community Health Councils for England and Wales, the statutory body representing patients interests in the NHS.
The disagreement centres on the use of anonymised patient data for audit, research, or commercial purposes. Guidance from the BMA says that the disclosure of “truly anonymous information does not breach confidentiality,” whereas the association of community health councils disagrees, claiming that it is extremely difficult to “completely anonymise patient information,” so that individuals may still end up being identified.
It claims that the BMA should have awaited the outcome of a forthcoming appeal court case before issuing the guidance.
Marion Chester, the association's legal officer, said that she suspected that the BMA had brought the guidance out before the court case in a bid to influence the court. The General Medical Council, which is intervening in the appeal, has postponed the issue of its updated guide on confidentiality, which gives similar advice to the BMA's.
The appeal, by the computer company Source Informatics,is against a High Court ruling that the collection and sale of data on doctors' prescribing habits breaches confidentiality even though the data are anonymised.
The four day hearing is set to begin on 29 or 30 November. The case, which hinges on the issue of implied consent, is of huge importance for the use of anonymised patient data not only by commercial companies but for public interest purposes, including medical research and statistics.
The Department of Health is a party to the case, and the GMC, the Medical Research Council, the Association of the British Pharmaceutical Industry, and the National Pharmaceutical Association are intervening to present arguments to the court.
The association of community health councils, which cannot afford the cost of intervening, will submit a written brief. It has consulted Richard Gordon QC, whose opinion is expected next week. He has already given an opinion that the GMC's similar draft guidance was unlawful in several key respects.
The association said that it was concerned that information about patients' medical conditions would be used without their consent and that anonymised information would not prevent individuals from being identified.
Donna Covey, the association's director, said: “Most people visiting their GP, dentist, or hospital consultant assume that their medical information is confidential. In fact this is not always the case. It is in everybody's interests that patients feel that they can speak openly and in confidence to their healthcare providers. We would like to see the BMA look again at their guidance to take account of these concerns.”
Vivienne Nathanson, the BMA's head of ethics, said: “There are so many people asking us questions about confidentiality that we have to produce information on best practice. This is information that has been available and in the public domain for a long time.
We have flagged up that there is a case coming up and as soon as the decision is available we will put it on the [BMA's] website.”