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At 10:41 am +0000 6/3/00, [log in to unmask] wrote: >I have heard a rumour that the Source Informatics judgement has been >overturned. Can anyone confirm this please? > >Roy Candy >Data Protection Officer >Northampton General Hospital NHS Trust ------------------------------------------------------------------------- This is the Court of Appeal judgement from the Times Law Report! Maurice Frankel Campaign for Freedom of Information ---------------------------------------------------------------------------- January 18 2000 COURT OF APPEAL Prescription information usable if names concealed Regina v Department of Health, Ex parte Source Informatics Ltd Before Lord Justice Simon Brown, Lord Justice Aldous and Lord Justice Schiemann [Judgment December 21, 1999] As long as a patient's identity was protected, it would not be a breach of confidence for general practitioners and pharmacists to disclose to a third party, without the patient's consent, the information contained in the patient's prescription form for marketing research purposes. The Court of Appeal so stated allowing the appeal of the applicants, Source Informatics Ltd, from the decision of Mr Justice Latham (The Times June 14, 1999; [1999] 4 All ER 185) who had dismissed their application for a declaration that a policy document issued by the Department of Health was erroneous because it said a scheme, whereby all the information contained on the patient's prescription form, except that which would identify the patient, sold by the dispensing pharmacist to Source to be stored on a database used by pharmaceutical companies, was a breach of confidence. Mr Michael Beloff, QC, Mr Charles Flint, QC and Miss Sarah Moore for Source; Mr Mark Howard, QC and Ms Jemima Stratford for the Association of British Pharmaceutical Industry; Mr Nigel Pleming, QC, for the National Pharmaceutical Association Ltd; Lord Lester of Herne Hill, QC and Ms Helen Mountfield for the General Medical Council; Mr Phillip Havers, QC, for the Medical Research Council (all interveners); Mr Philip Sales and Mr Jason Coppell for the Department of Health. LORD JUSTICE SIMON BROWN said that the information contained on the prescription form consisted of the general practitioner's name, the patient's name, the date of prescription, the product prescribed and the quantity prescribed. Pharmacists, for their own purposes, entered that information on to their computer database together with details of the product dispensed and the date of prescription. The applicants had no interest in the patients' names and identities but every interest in the rest of the information, in particular the general practitioners' names and the products they prescribed. To obtain that they needed the cooperation of both the prescribing general practitioners and the dispensing pharmacists, and that they did by modest payments: in the case of general practitioners, £15 to a charity of the general practitioner's choice; in the case of pharmacists, £150 a year. For their part, the pharmacists downloaded all the information, except that which would identify the patients, by means of specially designed computer software and then passed it to the applicants for aggregation. The applicants thus created a database comprising information on products prescribed by individual general practitioners in the United Kingdom. Was there anything unlawful about such a process? In particular, did it involve a breach of the patient's confidence? Mr Sales' case was that the patient's sole purpose in handing over the prescription was so that the pharmacist might dispense the drugs prescribed. That, therefore, was the only use of it that was authorised. By anonymising the information, he submitted, the pharmacist did not cease to be under a duty of confidence with regard to it. The very act of anonymisation involved manipulation of the information and was itself objectionable. The only reason the pharmacist had something to sell was because the patient had handed over his prescription. Even when anonymous, it was still not in the public domain. To sell any part of it was to misuse it. His Lordship found those arguments not merely unconvincing but wholly unreal. It was true that, even though anonymous, the information which the pharmacists proposed to sell to the applicants was still not in the public domain. But whether or not that mattered must surely depend on the interest at stake. If government information was involved, then whether or not the information had entered the public domain might prove decisive. If trade secrets, including intellectual property rights, were involved, then the position might be different. What then of a case like the present which involved personal confidences? What interest was the law protecting? In his Lordship's view the answer was plain. The concern of the law was to protect the confider's personal privacy. That alone was the right at issue. The patient had no proprietorial claim to the prescription form or to the information it contained. The patient could bestow or withhold his custom as he pleased. The pharmacist had no such right. He was by law bound to dispense to whoever presented a prescription. But that gave the patient no property in the information and no right to control its use provided only that his privacy was not put at risk. Participation in the applicant's scheme by doctors and pharmacists would not expose them to any serious risk of successful breach of confidence proceedings by a patient. If the Department of Health continued to view such schemes as operating against the public interest, then it must take further powers in the already heavily regulated area to control their effect. The law of confidence must not be distorted for the purpose. Lord Justice Aldous and Lord Justice Schiemann agreed. Solicitors: Clifford Chance; Cameron McKenna; Freshfields; Field Fisher Waterhouse; Treasury Solicitor; Solicitor, Department of Health. 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