‘Patient confidentiality is one of the most important pillars of medicine’, explains Dr Vivienne Nathanson, previously Head of Science and Ethics at the British Medical Association.

Can patient information be shared without consent?

The general principle is that patient information is confidential and can only be disclosed to third parties without consent in very limited situations. These situations include, for example, where it would prevent the spread of an infectious disease or where there is a suspicion that a child is suffering, or is at risk of suffering, significant harm.

There are also circumstances in which health professionals may be obliged to share confidential patient information where it would be in the ‘public interest’ to do so. The British Medical Association explains that these disclosures can be made where they are ‘essential to prevent a serious and imminent threat to public health, national security, the life of the individual or a third party or to prevent or detect serious crime.’

In short, breaching patient confidentiality is a serious business, requiring serious reasons.

In what circumstances can the Home Office access patient data in the immigration context?

A Memorandum of Understanding was entered into earlier this month formalising the transfer of limited (non-clinical) patient information relating to ‘immigration offenders’ between the NHS and the Home Office. The MoU itself states that it is not ‘legally binding’ but ‘simply documents the processes and procedures agreed between the participants’. The NHS is permitted to disclose information under s.261 Health and Social Care Act 2012 where the disclosure is made in connection with the investigation of a criminal offence.

The memorandum sets out a list of circumstances in which the Home Office can request information from the NHS. This includes where the disclosure would be ‘a matter of public interest’ and, in case you were in any doubt, the memorandum sets out exactly what the ‘public interest’ means:

‘There is public interest in disclosing data on all offenders under s.24/s.24A of the Immigration Act 1971. The commission of a criminal offence of this type is a matter of high public interest.’

Those circumstances covered by the MoU include individuals who are ‘sought in regard to an immigration offence under Section 24 or 24A of the Immigration Act 1971’ but who are ‘not in contact with the Home Office’. The MoU provides guidance on the types of offences that the relevant individuals may have been suspected of committing under Immigration Act legislation:

1. Failure to comply with reporting restrictions (including any grant of bail, temporary admission or temporary release); or
2. Absconding from port immigration control; or
3. Escaping from detention; or
4. Exceeding their time limit to stay in the UK; or
5. Seeking to obtain leave by deception

Exactly what information can the Home Office share?

The MoU makes the point that ‘information to be disclosed under this MoU is administrative in nature, and consequently falls at the less intrusive end of the privacy spectrum, making disclosure easier to justify as the public interest threshold is lower’.

The data that the NHS is permitted to share with the Home Office includes, amongst other things, an individual’s last known address or addresses. It does not include clinical information. It is fairly transparent in its aim of targeting immigration offenders, including those who have overstayed their visas, using information from the NHS which may help track them down.

As reported in the Guardian, the Home Office made 8,127 requests for such records in the first eleven months of 2016, and this understanding has clearly existed for some time before its formalisation in the Memorandum of Understanding released this month.

Does this initiative allow the Home Office to access medical information without consent?

No. However, the concern is that it represents the thin end of the wedge: once the principle that information provided in confidence to a GP or other doctor – even if only administrative – can be sacrificed at the altar of the ‘public interest’, how long is it before clinical details are also fair game?

There is also the justifiable concern raised by some that migrants – even those with lawful residence – will be less likely to confide in their GP or health practitioner if they know that this information may at some point in the future be used in connection with immigration enforcement. This has public health consequences for the whole of society, for example where children are not immunised, or infectious diseases not reported.

A more hostile environment?

This arrangement appears to be yet another brick in the ‘hostile environment’ wall promised to immigrants by the Prime Minister in 2013, when she was still Home Secretary. It also echoes similar agreements (as reported here) made by the Home Office and other ministries, such as the Department for Education, which facilitate the transfer of data between departments for the purposes of immigration control.

As Dr Nathanson goes on to explain, protection of the ‘private details of a patient is … essential in retaining the important bond of trust between the doctor and the individual.’ These types of arrangements cannot help but give the impression that previously trusted institutions, such as schools and doctors surgeries, are slowly becoming extensions of Home Office immigration enforcement and control.