NOTE ON COMPATIBILITY WITH EUROPEAN LAW

  I promised to write with clarification on whether the summary care record and the secondary uses service are able to satisfy the requirements of European law in respect of data protection.

  I can confirm that our legal advice, and the advice of the Information Commissioner, is that the various elements of the National Programme for IT are designed to enable users to be fully compliant with the Data Protection Act 1998, the domestic legislation that gave effect to the European Directive on Data Protection.

  You raised the question of some possible future challenge over compliance with European legislation. It is my understanding that this possibility has been mooted in relation to a draft European Working Document rather than to existing European law. The Working Document is currently out for consultation and the Department of Health, along with numerous other UK bodies, have responded with suggestions for clarification and amendment.

  If this document remained unchanged and was accepted as the interpretation of law that the European Courts adopt in the future, there would be questions about our compliance. Essentially the Working Group has suggested that it may be difficult to provide electronic health records with a robust legal basis under the European Data Protection Directive and that member states should consider providing such records with a clear basis in domestic law. This applies equally to existing electronic health records and should not be seen as an issue originating with, or exacerbated by, the summary care record or other new developments.

  Working Documents are issued for consultation purposes. They do not represent agreed legal interpretation and have no legal weight attached to them. We expect that the Working Document will be amended to better reflect the realities of team based modern healthcare and to allow for the impact of UK domestic common law of confidentiality that runs alongside data protection requirements. The Information Commissioner is represented on the group that is drafting the Document and his staff are confident that the final document will not require any significant change to UK practices.

Lord Hunt of Kings Heath

Minister of State for Quality,

Department of Health

29 June 2007