In a recently published report for the Government, the Human Genomics Strategy Group called for the development of a national central genomic data storage facility. This would mean that genetic data collected from the population will be linked to electronic medical records. ‘Connecting for Health’ was rolled-out on opt-out basis – can we expect the same with a national genetic database?
In response to a Freedom of Information request by EthicsandGenetics, Danny Lamond, Ministerial Correspondence and Public Enquiries for the Department of Health confirmed that a “central repository for storing genomic and genetic data and relevant phenotypic data from patients” will be set-up.
Lamond goes on to say that “The report (by the Human Genomics Strategy Group) has been welcomed by the Secretary of State for Health and the Minister for Universities and Science, who have asked for the recommendations to be implemented through a shared strategic framework.”
While this is a considerable development, what will it mean for confidentiality, privacy and the autonomy we ought to have over our own personal genetic and phenotypic information? The report by the Human Genomics Strategy Group recognises that “an individual’s genetic information is sensitive personal data, and a whole genome cannot be truly anonymised.” Adding that, “there is a risk of the information being misused.” Despite this, the report advocates a generic form of consent: which means that although consent to use tissue or genetic data must be secured in the first instance, it will be used in future research studies, the nature and purposes of which will be unknown.
EthicsandGenetics has long argued that ‘Connecting for Health’ was specifically designed so that electronic medical records would ultimately be linked personal genetic data (which will be collected and stored) to medical data (medical history). In anticipation of a supposed shift in healthcare based upon genetics, New Labour, under the direction of the UK pharmaceutical sector, set about implementing a considerable legislative programme in order to gain a competitive edge in the global market for personalised medicine. This new model of healthcare requires access to massive data sets, and thus, the NHS National IT Programme, which included, ‘Connecting for Health’ – a national, set of interconnected databases, containing electronic medical records – was set up.
Moreover, the Secondary Uses Service, a mechanism by which personal medical information can be shared and accessed, and makes patient-identifiable data available without individual consent, was also introduced. Lastly, Section 251 of the 2006 NHS Act circumvents the common law of confidentiality, Article 8 of the Human Rights Act 1998, as well as the Data Protection Act 1998 – and permits access to personal medical information without the need for consent. In short, these are the ideal legal and infrastructural conditions for the advancement of personalised medicine. The only thing that is missing is a national genomic database; the last piece in this grand design.
Should we sanction a practice where genetic information, linked to our medical records, moves between the public and private sphere - and is used for purposes beyond our knowledge? Genetic discrimination is increasingly prevalent in America; people are losing their jobs due to a mere predisposition to cancer. An examination of current practice suggests that, notwithstanding substantial changes, especially to Government transparency, and indeed, the need for far greater levels of public engagement in these matters - a national genomic database is a step too far. Let me explain.
Only recently, the Conservatives announced that they plan to open up medical data to private organisations. Andrew Lansley pledged that personal data will be made available in a strictly anonymised fashion. A Freedom of Information disclosure by the Department of Health to EthicsandGenetics reveals that the public were misled regarding these proposals. Both Andrew Lansley MP and David Cameron PM explicitly stated that any data shared under these proposals would be ‘anonymised.’
"Now let me be clear, this does not threaten privacy, it doesn’t mean anyone can look at your health records but it does mean using anonymous data to make new medical breakthroughs and that is something that we should want to see happen right here in our country."
David Cameron at the FT Global Pharmaceutical and Biotechnology Conference
In reference to the proposals Andrew Lansley, the Secretary of State for Health, explicitly stated that “it is not about sharing individual records in a way that can identify who those people are.”
However - in a Freedom of Information disclosure to EthicsandGenetics, the Department of Health stated that:
“Any release of data must be lawful and with appropriate permissions data could be released in anonymised, pseudonymised or identifiable form.”
These are the three different ways of classifying personal medical data:
Anonymised data: it is impossible to connect it with an identifiable individual
Pseudonymised data: is stored separately from identifiable information, but the link is still maintained and so the data can be attributed to an identifiable individual by anyone who has access to the linking codes. Moreover, pseudonymised data is such that in most cases the individual’s name and address are merely replaced by their data of birth and postcode. Identifying a person, if you so desire, is not difficult.
Patient-identifiable data: contains key identifiable information includes: patient’s name, address, full post code, date of birth; pictures, photographs, videos, audio-tapes or other images of patients; NHS number and local patient identifiable codes; Anything else that may be used to identify a patient directly.
While the Freedom of Information disclosure by the Department of Health goes on to say that “private companies operating on a commercial, for-profit basis will only ever receive fully anonymised data” - it is clear that the public were misinformed about the nature of these proposals and the type of information that would be shared with third-parties. It is also clear that the Government do not have a consistent position.
The Department of Health, in their initial response to a Freedom of Information request by EthicsandGenetics about what kind of information would be shared under these proposals, stated that all data would be strictly anonymised. It was only when pushed on the matter and asked to specifically define anonymised data; and confirm whether any data shared under these proposals would, in fact, be pseudonymised and patient-identifiable - that the Department of Health changed their position and confirmed that data would not always be anonymised.
As we have seen, ‘lawfulness’ – within the context of UK data protection law and practice – fails to provide us with the necessary safeguards. Moreover, the ‘appropriate permission’ undoubtedly refers to the powers given to the secretary of state of under section 251 of the 2006 NHS Act; which means that data could be shared without individual consent. Lastly, while Andrew Lansley pledged that the data would be ‘strictly anonymised’, the Department of Heath makes it clear that it could be ‘pseudonymised’ or made available in a ‘patient-identifiable’ form. These are categorically different propositions and is indicative of a staggering lack of coherence in their overall position.
Given these inconsistencies, lack of meaningful legal protection and the dramatically new model of consent that genomic research requires - a national genomic database is not something that we should take lightly. The coming together of genomics, genetics and society in entirely novel ways, brings with it risks that are difficult to quantify, and must be the object of open and sustained public discussion. The premise of 'Connecting for Health' was to advance personalised medicine. This is not objectionable in and of itself. It is the manner by which it was implemented, the gross lack of transparency and, most importantly, the far-reaching changes to privacy law that is objectionable. It is the fact that it was driven by the Labour Party and the highest eshelons of the UK pharmaceutical sector in a way which sought to deceive the public that is indescent. The Conservatives pledged to curtail both 'Connecting for Health' and other similarly unappetising databases, yet they have followed in Labour's footsteps.
Some feel that we are inevitably moving towards a culture where personal genomic information moves between the public and private sector to the great medical benefit of the community. The question we must ask at this stage is whether all this is being done for the ultimate good of the public or are we dealing with a science that is in its infancy and some impatient members of GlaxoSmithKline that simply cannot wait to get ahead in the global market for personalised medicine? The latter is the more compelling explanation. Many argue that in the genomic era the classic model of consent is no longer appropriate and nor is it desirable. Ultimately, we would be wise to hold on to some control over our personal genetic information. Certainly, without meaningful public discussion, we should not relinquish tried and trusted principles overnight and nor should we let the genetic basis of human nature become a mere commodity.