Exclusive: Board seeks vital legal permission over sensitive data

HSJ has learned the commissioning board will make a submission to the independent NHS ethics and confidentiality committee tomorrow, with the intention of allowing patient identifiable data to flow legally between the NHS Information Centre, clinical commissioning groups, and the NHS Commissioning Board, including the commissioning support units it hosts.

It is hoped the committee will then make a recommendation to the health secretary to approve an exemption under section 251 of the 2006 Health and Social Care Act.

That would set aside normal confidentiality requirements where there is no practical alternative, and where the exemption is in the public interest.

If approved, the exemption would also give CCGs and the commissioning board the legal ability to receive patient identifiable information from the NHS Information Centre.

Without the permission, routine commissioning activities using this sensitive information could place NHS organisations could be in breach of confidentiality law.

The exemption is therefore considered vital by the commissioning board for the functioning of the new commissioning system, which goes live on 1 April.

Primary care trusts, which will be abolished at the end of the month, are already covered by section 251. However, as they are being dissolved by the 2012 Health Act and replaced by a different configuration of statutory bodies with different roles, the exemption will not automatically transfer to CCGs or the board.

HSJ has also learned that, regardless of whether the exemption is granted, the data management and integration functions which currently sit with emerging CSUs are to be transferred to the information centre. The 2012 act gives the information centre the necessary legal status to enable it to collect and analyse patient identifiable data.

CSU data management staff will be seconded to the information centre, so those functions will be covered by its exemption.

Normally section 251 provides support for a single flow of data for one specific purpose, for instance to enable information from the NHS’s secondary uses service to be used in a piece of research.

However, it has sometimes been used more broadly, for instance to enable commissioning data to flow from provider trusts, through the information centre, to PCTs.

The commissioning board is understood to have been working on the submission to the committee for some months.

The board hopes the ethics and confidentiality committee will consider the issue quickly, as it is necessary to have this permission in place by April 1.