Commentary on Sections Section 4 – Continuity of information: interpretation
25.This section inserts into Part 9 of the HSCA 2012 new section 251C (continuity of information: interpretation), which makes provision for the interpretation of terms used in new sections 251A (consistent identifiers) and 251B (duty to share information).
26.Subsection (1) of section 251C provides that the section applies for the purposes of sections 251A to 251C.
27.Subsection (2) sets out the definition of ‘relevant health or adult social care commissioner or provider’ and thereby who the new duties are imposed on. The definition covers two categories of persons: (a) any public body so far as it exercises functions in connection with the provision of health services, or of adult social care in England; and (b) any person (other than a public body) so far as the person provides health services, or adult social care in England – (i) pursuant to arrangements made with a public body exercising functions in connection with the provision of such services, and (ii) otherwise than as a member or officer of a body or an employee of a person. Subject to regulations which may be made under subsection (3), if a person falls within either of those categories, then the person is subject to the new duties. The first category covers all public bodies which provide or commission health services or adult social care in England. The second category covers all private persons (in their capacity as contractors, not as employees or members or officers of a body) who have contracted with public body commissioners to provide health services or adult social care in England.
28.Subsection (3) confers on the Secretary of State a power to make regulations which provide for a person to be excluded, either generally or in particular cases, from the definition of ‘relevant health or adult social care commissioner or provider’.
29.Subsection (4) clarifies that regulations made under subsection (3) may in particular provide for a person to be excluded in relation to the exercise of particular functions, or the exercise of functions in relation to particular descriptions of person, premises or institution.
30.Subsection (5) expands upon the reference in new sections 251A(5)(a) and 251B(3)(a) to a disclosure being likely to facilitate the provision of services or care to an individual. It provides that the disclosure will be treated as likely to facilitate the provision of services or care to the individual only if it does so directly, rather than by means of a clinical trial, a study or an audit or any other indirect means. This makes clear that the condition in new sections 251A(5)(a) and 251B(3)(a) limits the duties to use the consistent identifier and share information to the cases involving the direct care and treatment of an individual, and that they do not apply for any wider purpose. The duties would not, for example, require that the individual’s data be shared for the purposes of research for the benefit of all individuals in a particular category or group, even though the individual may benefit from research into particular types of treatment.
31.Subsection (6) defines an ‘anonymous access provider’ for the purposes of new sections 251A(6)(c) and 251B(4)(b) in relation to services or care which are, or may be, received by individuals anonymously. The definition applies both in relation to services or care provided by the relevant provider or commissioner concerned and in relation to services or care provided to the individual by another commissioner or provider, such as a specialist to whom the provider or commissioner concerned refers the individual.
32.Subsection (7) provides that other terms used in new sections 251A to 251C have the same meaning as in section 250 HSCA 2012, subsection (7) of which provides definitions for the following terms: ‘adult social care’; ‘health services’; ‘processing’; and ‘public body’.