Commentary on Provisions of the Act Section 1: National Data Guardian for Health and Social Care
Section 1 creates the office of the National Data Guardian for Health and Social Care (the Data Guardian) and makes some general provisions about the Data Guardian’s functions and the way in which they are to be carried out.
	Under subsection (1) the Data Guardian must be appointed by the Secretary of State. The Schedule makes further provision about the establishment, maintenance and operation of the office of the Data Guardian.
	Subsection (2) empowers the Data Guardian to publish guidance about the processing of health and adult social care data in England. "Health and adult social care data" is defined in Section 2(6), and "processing" is defined in Section 2(7). An example of something that the Data Guardian could publish guidance about is security standards for storing health and adult social care data.
	Subsection (3) imposes a duty on certain organisations and individuals to have regard to the National Data Guardian’s published guidance. The duty applies to public bodies exercising functions that relate to the health service, adult social care or adult carer support and to persons providing health services or adult social care under arrangements with those bodies. The first category covers public bodies that provide, commission or regulate health or adult social care services, or exercise any other function in relation to the health service or adult social care. The second category covers anyone providing publicly funded health services or adult social care commissioned by, or on behalf of, a public body.
	Subsection (4) requires the Data Guardian to keep his or her published guidance under review, and subsection (5) allows the Data Guardian to revise the guidance as he or she considers appropriate. These requirements are intended to ensure that the published guidance remains relevant over time and, where appropriate, is updated to reflect new evidence.
	Subsection (6) requires the Data Guardian, before publishing their guidance, to consult such persons as he or she considers appropriate.
	Subsection (7) allows the Data Guardian to give informal advice, assistance and information about the processing of health and adult social care data in England. The Data Guardian can give advice, assistance and information to anyone, so long as it is about, or relates to, the processing of health and adult social care data in England. Unlike the Data Guardian’s published guidance, no one has a statutory duty to have regard to the Data Guardian’s advice, assistance or information.
	Subsection (8) refers to the power of the Data Guardian to publish guidance or give advice, assistance and information about the processing of health and adult social care data in England, giving the Data Guardian flexibility in how far any particular piece of advice, assistance, information or guidance may extend. For example, guidance may be published in relation to all cases to which a power to issue guidance extends, or in relation to cases that are specified in the guidance. The effect of this subsection is to clarify that the Data Guardian can publish guidance and give advice on specific topics or themes, and can target guidance and advice to certain organisations, individuals or sectors, as appropriate.
	Subsection (9) provides that the duty to have regard to the Data Guardian’s published guidance only applies so far as the guidance is relevant to the body’s or person’s functions or services.
	Subsection (10) introduces the Schedule to the Act which gives detailed provision about a broad range of matters relating to the office of the Data Guardian, its constitution and how members of staff and advisors are to be appointed and remunerated.