The DoH has refused to allow a large number of patients to opt out of its controversial computerised patient records system, which is still in development. The BMA says that that refusal is unlawful and could result in a boycott of the system by GPs.
"We believe this particular suggestion by the DoH is unlawful and certainly it's outwith our understanding of the Data Protection Act," said Dr Richard Vautry, the BMA's negotiator on IT issues and a member of its GP committee.
"If they insist on that position, which we think is untenable, then it would mean that we would be obliged to advise practices not to get involved in putting any information into the summary care record," Vautry told OUT-LAW.
The system depends on GPs inputting the information and would be likely to collapse if GPs refused to carry out that task. "I'm sure practices would be very unwilling to do so because they would feel that it would put them in a very legally indefensible position," said Vautry.
The DoH did not respond to a request for comment before publication.
The controversy stems from a letter sent by the DoH to a large number of people who asked to opt out of the system. The Department told them that they could not opt out unless they could show 'substantial and unwarranted distress' would be caused by being in the system.
The BMA says that the Department had no right to make that judgment. Under the Data Protection Act the only person who can make that kind of ruling is the data controller, said Dr Chris Pounder, a data protection expert with Pinsent Masons, the law firm behind OUT-LAW.
That has traditionally been the GP and not the Department, and by making that judgment the Department was essentially declaring itself the data controller.
"By stating in its letter the fact that the DoH will offer the right to object to the processing of personal data, the DoH is claiming the status of data controller under the Data Protection Act," said Pounder. "As a data controller, the DoH can determine the purpose and manner of the processing of the nation's health records."
The BMA believes that the DoH may already be softening its position. "What we intend to do is seek clarity from the DoH on the issue because from the press statements Lord Warner was giving a few days ago he was indicating that there had been a change of policy within the department in response to reports," said Vautry. "As part of the press briefing he indicated that patients would be able to truly opt out, so we'll need to find out what that means."
The BMA backed an opt in rather than opt out system, but has lent its support to the summary care record plan unveiled this week.
Vautry said that although the DoH has always owned patient records it has always been the GP practice that has been the data controller in working practice. The DoH's letter marks an attempt to fundamentally change that.
"The reasons that you gave as the basis for claiming substantial and unwarranted distress are not based on an accurate understanding of the summary care record," said the letter, which was sent by the DoH to people who requested an opt out.
"This could play into the hands of the critics who argue that once the NHS system is up and running, then the DoH would be in a position to exploit the medical records for different purposes in future," said Pounder.
"The problem is that if a patient were to take action as a result of information being uploaded to the record against their wishes it is likely in our view that it would be the GP that would find themselves in the firing line, and we think that's unacceptable and it's our responsibility as the BMA to ensure that GPs are not put in such a vulnerable situation," said Vautry.
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.