humanrights

Human Rights – real threats today vs theories of tomorrow

Theories on Thursday, furore on Friday. By Saturday the social media had hit the fan.

What we must remember whilst caught up in the recent Human Rights fuss, is that this is discussing a future theory. In practice, we are at risk of missing three* current and upcoming human rights threats, which are very real.

Whilst future policy change may already be doing harm to the spirit of the human rights law and those ideals today, current policies are having effect today in practice.

The Deregulation Bill, and other current policies and projects.

Regular readers will know, I have followed closely the care.data plans [see past posts] to extract our confidential GP medical records and centrally store, sell and share the information.

I hadn’t realised until recently why I care so strongly about doing this the right way. It simply felt wrong that the original plan was not to inform patients at all, and not ask for consent to remove the foundation stone of our confidentiality. The delayed plan, had a terrible junk-mail leaflet drop.

The current extraction plan is pending [roadmap end of page], but details unknown.

I have concerns about how it will harm the trust in the patient-GP relationship, potentially discriminate and segment certain groups and  I’m still unhappy how open the records will be for use by third parties, not for clinical care. There needs work done to make it done well, and to be transparent and trustworthy for patients.

But I’ve realised now, it feels wrong, simply because it impinges on one of our basic human rights. Our right to privacy.

This post is not about care.data per se, but the recent Bill of Rights debate made me take a closer look at the bigger picture.

There are many discussing this, far better informed on human rights than me. But perhaps it’s time the ordinary public pay more attention to our rights, and where they fit into our lives in the UK. Rights which are easily eroded if we don’t pay attention.

I’ve had a look at the current Bill proposal [my notes & comment at the end], but at least for now, I’m more concerned about the actual plans already underway, which will in  practice,  affect the application of our human rights today, and we may not know it.

There are at least three real changes in legislation right now which I believe should command our attention.

First, the Deregulation Bill.

This Bill will go to the Lords Committee stage on October 21st.

This is a real and present threat to human rights, as stated in the Joint Committee Report on Human Rights, June 14th 2014:

The Bill provides that a person exercising a regulatory function specified by the Minister:

 

The Government intends this economic growth duty to apply to the EHRC. We believe that applying this growth duty to the EHRC poses a significant risk to the EHRC’s independence, and therefore to its compliance with the Paris Principles and the Equal Treatment Directives as implemented by the Equality Act 2010. The Government is therefore risking the possibility of the EHRC’s accredited “A” status being downgraded and of putting the UK in breach of its obligations under EU equality law. Unless the continuing discussions between the Government and the Commission satisfy the Commission that the growth duty will not in any way impact upon its independence, we recommend that this duty not be applied to the EHRC.
Sections of the Deregulation Act currently passing through Parliament suggest the removal of any regulation that conflicts with the interests of a profit-maker. There are other domestic and regulatory bodies for which we should carefully consider this implication, not least from my perspective, in the NHS.

 

The Deregulation Bill creates a conflict when a law must consider commercial gain above human rights.

Further;

“The Bill would remove the power conferred on employment tribunals by the Equality Act to make wider recommendations in discrimination cases.”

 

The EHRC regards the power [conferred on employment tribunals] as useful, both for the employer to whom the recommendation is made and to the Commission itself for following up tribunal decisions, and it does not consider that sufficient evidence has been gathered to make out the case for abolition. We therefore recommend that the power of employment tribunals to make wider recommendations in discrimination cases should be retained.”

 

 

 

The Deregulation Bill also poses some concern for those interested in the requisition process for information, and press representation groups spoke out, worried it offers a back-door for seizing journalists’ material.

 

Seen all together, aspects of the Bill which is a mish-mash of all sorts of subjects, which was derided in some reports as being about knitting yarn, means it may well be a wolf in sheep’s clothing when it comes to human rights.

 

Second and Third, the recent changes in legislation & access

Other real threats to our universal human rights in the UK, I consider as points two and three, are already having an effect.

Recent legal changes to both a) the legal aid and b) the judicial review processes mean it is harder for many people to use the available processes due to cost.

(current consultation closing October 15th here and anyone can write to their MP for support, guidance at end of page.)

This results in inequality to use rights, which should be human rights for all by creating:

1. restrictions of individual access  (who can get a fair trial, the ability to appeal)

 

and

 

2. reducing the universality of application to human rights law (limiting the circumstances and reasons ‘the how and when’ under which rights may be applied)

 

 

These are the changes in progress right now. So what of the actual projects underway or recently effected?

 

Current threats in practice to our UK Human Rights

Mr. Grayling said this week that any future policy change will continue to ensure to promote the values of individual human dignity, equal treatment and fairness as the foundations of a democratic society. Many disagree.

The whole debate of this future policy change may already be doing real harm to the spirit of the law and those ideals today.

In my opinion, current actions are having real effect today in practice which risk undermining rather than strengthening our position towards universal human rights.

Current government policies and projects sign-post current thinking on the value of universal human rights and future direction.

Consider three things:

1. the recent changes which undermine access to use our rights, [access and universal applicability for all]
2. what value rights are given within current policies and practices,
3. the direction of travel in recent legislation, such as in surveillance, affecting universal rights for all.

It should come as no surprise then to hear of a more wholesale move towards the removal of rights in the proposal to repeal the Human Rights Act, and more. Steps have been taken on this path for some time.

A current sample of some areas with flaws in their approach to human rights include from my lay perspective:

If we in the ordinary public, in response to the proposals this week, are now concerned about about the theoretical threats to human rights by a potential future government, and care about getting it right, I’d suggest we:

don’t wait to worry about what might be in June next year. Encourage those who can, such as our MPs, to look at these real and practical human rights’ threats today. Support MPs & others who are.

Start the list, with the Deregulation Bill.  (Unless NHS England Patient & Information Directorate decide to begin care.data extractions before October 21st.) Watch this space.

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*there is clearly more of significance in this area, with which those better informed and active than me would say is missing, but with which I’ve not taken as close an interest. The Deregulation Bill will potentially affect NHS bodies, and I’ve looked at it before on care.data.

Notes on the proposals, and my references below:

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Reference sites:

The Deregulation Bill was introduced in the House of Commons on 23 January 2014. It received its Second Reading in the Commons on 4 February 2014, completed its Committee Stage on 25 March and began its Report Stage on 14 May. The Bill has been carried over to the next Session of Parliament. The Bill was preceded by a draft Deregulation Bill which was subject to pre-legislative scrutiny by the ad hoc Joint Committee on the Draft Deregulation Bill.

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For your reference and to their credit, I’ve found the following three websites useful and kept up to date with care.data information:

Dr. Bhatia, GP in Hampshire’s care.data info site

HSCIC care.data site

medConfidential – campaign for confidentiality and consent in health and social care – seeking to ensure that every flow of data into, across and out of the NHS and care system is consensual, safe and transparent

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On Legal Aid – consultation responses or write to your MP: http://www.lawsociety.org.uk/news/stories/moj-consultation-on-duty-crime-contracts-support-pack-for-member-responses/

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For reference – background Bil of Rights / scrapping the HRA

The theory

The outline future proposal this week suggested, “A majority Conservative Government will scrap Labour’s Human Rights Act, and will end the ability of the European Court of Human Rights to order changes to British laws.” [Jack of Kent, October 2nd]

Some of these plans were discussed here> on the Daily Politics. From 32.30 minutes in.

The plans have been met with widespread criticism in the press and by campaigners showing where the plans are flawed.

Myths abound how human rights are applied inappropriately to whom, and how they lack common sense.

In contrast, real examples have been presented of when the Human Rights Act and ECHR have been used to enhance and protect UK citizens, not least in the Mirror.

Looking to the future, individuals have further pointed out the fundamental flaw if limits of application were to be brought in which would for example, not use the law for ‘trivial cases’.

Tim Hancock, campaigns director of Amnesty UK, said in the International Business Times of this week’s announcement: “This is electioneering on the backs of Europe’s most vulnerable.

“Under these plans human rights would be reserved for only those people the Government decides should get them.”

Whilst we may each have our own political opinions, it is valuable to stay outside them and see changes objectively.

We must also see past the UKIP defection, knee-jerk reaction which conflates everything ‘Europe’, into something from which which the UK could ‘opt out’. As long as Britain remains a signatory to the ECHR, UK citizens could still directly petition the European Court of Human Rights in Strasburg to hear their case. In fact, could be more likely to, rather than go through the British courts first. These proposals conflate the 1951 Convention on Human Rights, the UK 1998 Human Rights Act and our rights under current European law, and more.

If next May, a Conservative majority were to be elected, this proposal might form a basis of proposed legislative changes.

It is highly unlikely to be as is, or without debate. It is a partisan approach which ignores the fact that cross parliamentary support would likely be needed, as was the case when Parliament voted in favour of the introduction of the UK Human Rights Act in 1998.

But that is an if, and thus far, actually moving towards this legislative change is theoretical.

 

 

human rights act 1998 header

Human Rights proposals – stripping away the Spirit of the Human Rights Act (1998)

News today confirms what has been on simmer for some time in England:

“A majority Conservative Government will scrap Labour’s Human Rights Act, and will end the ability of the European Court of Human Rights to order changes to British laws.” [Jack of Kent, October 2nd]

The Rt Hon Lord Howard of Lympne, CH, QC said:

“The argument is not about human rights, to which we all subscribe [...] the way in which the Convention on Human Rights has been interpreted is far removed from its founders’ intentions.

“We are simply restoring parliamentary sovereignty, and some much needed common sense, to our human rights laws.”

If it is truly only about common sense, everyone with common sense must support it. So why the wide press and social media uproar, and statements by other parties they would vote against such a proposal in Parliament?

“No, the argument today is whether arrangements such as the European Court of Human Rights and the Human Rights Act actually help to protect such rights or, by the way in which they have operated, bring the concept into disrepute.”

The argument appears to suggest, that there should be no need to be concerned about the removal of laws which ‘protect such rights’, that there is nothing to hide, nothing to fear. That in fact, we will do better by removing the framework which supports the common sense process. Common sense will operate and prevail without legislation.

If we believe the policy statement that under these changes, in effect, little would change for many people, why are the changes needed? By many accounts, many good results of the 1998 Act affect many of us.

Those much better informed than me, are debating this in the media and online, and is worth following. But I think we should be careful we don’t get so caught up in looking ahead, that we miss changes going on now.

The debate makes me ask myself, what is the purpose of a law, and whom should it serve?

If we are convinced change is needed, we assume a belief that the current process is flawed.  This comes in part from myths and misrepresentations in isolated cases. We should in discussion see past the UKIP defection, knee-jerk reaction which conflates everything ‘Europe’, into something from which which the UK could ‘opt out’ and what risks and benefit it would actually bring for whom.

Even if these changes were simply a case of choosing to ‘opt-out’ from the protections of the European Court for UK Citizens (which it is not) and even if one were to agree common sense can make better decisions without legal protection, one must consider that by removing the UK Human Rights Act [which had cross party support in 1998], and the European aspect of the laws, and by suggesting amendments to the 1951 European convention on human rights, changes would remove a layer of external protection and last support channel outside the UK system, for us as citizens.

Stripping away a spirit of Governance

Does this affect the opportunity for citizens and courts to benefit from external objectivity?

The 1998 Act was intended to reduce the number of cases going to the European Court. You can still take a case to the European Court, but the Human Rights Act meant a case has to go through the UK courts first. Whilst Scotland (and Wales to a lesser extent) has some devolved and historically founded independent law making processes, the 1998 Human Rights Act covers the whole of the UK. As does the ability to go to the European Courts as an extra layer of legal protection, guidance and enlightenment if exhausted at home. 

Will we no longer be able as legitimately, to call on bodies with cross-border, external best practices to learn from which has any accepted weight? Or cases to set precedence? But does the European Court have these powers anyway or do these policy statements just cause confusion?

Former Attorney General Dominic Grieve said the plans were flawed. The Tory MP said they would be “difficult to implement” and risked “undermining” the UK’s – and his own party’s – tradition of upholding human rights.
Proposals state: ‘In future ‘Britain’s courts would no longer be required to take into account rulings from the Court in Strasbourg. This would make our Supreme Court the ultimate arbiter of human rights matters in the UK.’

The statement gives the strong impression that the UK will regain a lost level of independence as a deal for giving up a layer of objectivity and governance.

In fact, we would not do so by repealing the 1998 Human Rights Act, the European Court would keep its role in the UK in practice.

Liberty clarified: “The Human Rights Act did not make Strasbourg a precedent-setting Court, as the proposals claim. This proposal will not increase the Supreme Court’s constitutional standing. It is already the ultimate arbiter of human rights cases in the UK but, if we remain part of the Convention, British people will still be able to take claims to Strasbourg once domestic litigation is exhausted. The dilution of Convention rights proposed makes it more likely that Strasbourg will find against the UK. The Court has no ability to require the UK to change British laws. Parliamentary sovereignty is intact, as made clear by the non-implementation of the prisoner voting judgment. But the British Government has ratified the Convention and so undertaken to comply with its international law obligations to respect the decisions of the Court.” [Liberty]

However the side comments on the 1951 Convention are of much more concern to me.

Are the Conservative proposal really going so far as to say it would remove that Convention undertaking, and no longer respect international law? Surely not in practice, but in spirit, it seems to suggest just that.

They would seek to: “Clarify the Convention rights, to reflect a proper balance between rights and responsibilities.”

that would be a huge change with respect for our position towards international law.

It seems to suggest that there would be a trade off giving up the universally applicable nature in the 1951  convention on Human Rights, to enable selective decisions which and when, rights would apply.

 

Stripping away the rights which apply to all

The basic principles of universality, inalienability and indivisibility, [outlined here by Liberty] are under threat through these changes:

 

“Human rights are universal. They apply to all people simply on the basis of being human.

Human rights are inalienable. They cannot be taken away simply because we do not like the person seeking to exercise their rights. They can only be limited in certain tightly-defined circumstances and some rights, such as the prohibition on torture and slavery, can never be limited.

Human rights are indivisible. You cannot pick and choose which rights you want to honour. Many rights depend on each other to be meaningful – so, for example, the right to fair trial would be meaningless without the prohibition on discrimination, and the right to free speech must go hand in hand with the right to assemble peacefully.”

Isabella Sankey, Director of Policy has taken apart some of the implications here. Her post is worth a thorough read.

Stripping away rights of access

 

It appears that we are moving towards a state in which the suggestion is that laws from the top down to control citizens’ rights will be applied universally, whilst at the same time, the rights of those who may feel unfairly treated by them are becoming restricted, through policy and in practical terms.

 

If British citizens would still be able to take claims to Strasbourg once domestic litigation is exhausted, they have to be able to not just in theory, but practice.

Courts which exist as channels to a fair appeal are only applicable to all as a right effectively, if they can be accessed by all. In the UK the  judicial review practices have changed on charging, which make universal access to judicial review harder. Recent changes to legal aid funding mean fewer people can afford access to representation.

 

This report from the International Council on Human Rights Policy may be ten years old, but is still I feel, relevant.

“…individuals, particularly those who are vulnerable because of exclusion, poverty and discrimination, unable to obtain benefits and rights to which they are entitled in law? This report examines the impediments that obstruct large numbers of people from accessing the full range of human rights. It analyses the performance and responsibilities of governments and other institutions, and identifies new forms of action that official and human rights organisations might need to undertake if access is to be improved.”

If Human Rights law is not accessible to all, and does not apply equally to all, it is not universal. Either not all are humans or they are not rights. Either way, the law is flawed.

 

I believe being universally applicable must also ensure universal access in order to be meaningful.

 

Stripping the Spirit of accepted Human Rights

Whilst the Acts  and declarations have legal weight which are of intrinsic importance and value, I believe it is also of importance to value the philosophy of the principles. It is this loss which worries me as much as the thought of losing concrete governance. We risk losing not only the protections of the law, but the Spirit of the law.

The spirit acts as an additional layer of conscience accompanying lawmakers and politicians in their decision making process.

I fear that he spirit of the values the state places on human rights,has been injured in recent times.

 I fear an ‘accepted’ element of barbarism has crept into our own humanity in the treatment of our ‘prisoners of war’.

 

The right not to be tortured or treated in an inhuman or degrading way is an absolute right. It should never be limited and it is a commonly held belief that there are no circumstances where this type of treatment of people can be justified.

 

However torture has become apparently justifiable recently. Justified by the highest authority in the US, some may see as the highest ‘western world power’. “We tortured some folks” was justified with the near flippant tone of a bumper sticker. Little official repercussion  appears to follow.

 

In doing so, the affiliated powers revealed how far we have fallen from our ideals of humanity embodied in the Universal Declaration of Human Rights.

Our values and self created global ethic in which some human rights are absolute.

It appears we have allowed through our government’s use of torture, an absolute boundary to be broken. So should we be surprised if that was only a first step? What is perceived as acceptable in how our government treats others, can only lead to a contagion in perception of what is right and acceptable in how others will treat our people abroad.

Crucially, I believe it also affects our own public perception of acceptance and ‘the norm’ in how we treat our own people.

Yet again, at home in human rights law, perception may be that this will not affect us. Not ‘our own’ kind of people. It will only affect ‘others’.

But the others in the case of human rights in the UK, may be our own gender or racial discrimination case at work. It may be how our friend or family member is treated by the authorities in sexual discrimination or in disability claims process.  Those in prison, the poor, minorities – these groups suit some agendas to portray as ‘other’. To thrive, I believe we must strive to remember our togetherness as a society which looks after one another, not treats ‘others’ as outside our realm of protections. As somehow, less ‘entitled’.  Less entitled to welfare. Less entitled to vote. Less entitled to universal rights.

If you think, no not me, then let’s consider closely our own reaction to the arrival of travellers in a local field. Or news of immigrants awaiting asylum rulings being housed in bed-and-breakfast accommodation.

It seems that to whom our human rights should apply, would become discretionary.

Are some Human Rights Claims more Trivial than Others? What about the same Human Rights for all?

If the majority of rights are non-absolute and can be limited or restricted in certain circumstances, we should not be surprised if these too are now trampled on if found to be ‘trivial’. The circumstances in which there is a need to take into account the rights of other individuals or wider society would become  discretionary.  How would that be defined and by whom?

“Limit the use of Human Rights laws to the most serious cases.”

There will be a threshold below which Convention rights will not be engaged, ensuring UK courts strike out trivial cases.

It appears that which subjects and in which circumstances individuals should be entitled access to human rights protection would become discretionary.

By saying some ‘trivial’ cases would not be relevant for consideration, you throw out the spirit of the universal applicability of Human Rights’ legislation.

Where does this leave the Spirit of our Human Rights in practice?

Politicians may say that in practice, any change will continue to ensure that:

But current reality is that changes have already made universal access to judicial review harder. Reality is that the changes to legal aid funding already means fewer people can afford access to representation. Minority groups find access a challenge. Mothers without means are representing themselves in divorce cases. People are facing abusers in court.

If now we further undermine both access and applicability, the reality is under the law some will be more equal than others.

So what of our basic principles?

Human rights are universal. They apply to all people simply on the basis of being human.

Human rights are inalienable. They cannot be taken away simply because we do not like the person seeking to exercise their rights.

Human rights are indivisible. You cannot pick and choose which rights you want to honour.

Whether this policy ever becomes reality or not, it harms the perception of the value we place on human rights, at home and abroad.

Universality of application and universal access are already under real threat, creating inequality for which humans, these laws offer support.

These proposals normalise what is in fact nonsense.

Whilst at least for now, it makes no difference in legal practice, I think the Spirit of Human Rights in the UK under this proposal, just had her wings stripped off.

 

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Chris Grayling’s eight-page strategy paper http://s3.documentcloud.org/documents/1308660/protecting-human-rights-in-the-uk.txt

[Liberty useful listing of what the Human Rights Act covers.]

jilted

The care.data engagement – is it going to jilt citizens after all? A six month summary in twenty-five posts.

[Note update Sept 19th: after the NHS England AGM in the evening of Sept 18th - after this care.data engagement post published 18hrs earlier - I managed to ask Mr.Kelsey, National Director for Patients and Information, in person what was happening with all the engagement feedback and asked why it had not been made publicly available. He said that the events' feedback will be published before the pathfinder rollout begins, so that all questions and concerns can be responded to and that they will be taken into account before the pathfinders launch. When might that be, I asked? 'Soon'. Good news? I look forward to seeing that happen. My open questions on commercial uses and more, and those of many others I have heard, have been captured in previous posts, in particular the most recent at the end of this post.]

Medical data has huge power to do good, but it presents risks too. When leaked, it cannot be unleaked. When lost, public trust cannot be easily regained. That’s what broken-hearted Ben Goldacre wrote about care.data on February 28th of this year, ten days after the the pause was announced on February 18th [The Guardian] .

Fears and opinions, facts and analysis, with lots and lots of open questions. That’s what I’ve written up in the following posts related to care.data since then, including my own point-of-view and feedback from other citizens, events and discussions. All my care.data posts are listed here below, in one post, to give an overview of the whole story, and any progress in the six months ‘listening’ and ‘engagement’.

So what of that engagement? If there really have been all these events and listening, why has there been not one jot of public feedback published? This is from September 2014, I find it terrifyingly empty of anything but discussing change in communications of the status quo programme.

I was at that workshop, hosted by Mencap on communicating

with vulnerable and excluded groups the article mentions. It was carefully managed, with little open room discussion to share opinions cross groups (as the Senior Policy Adviser at Signature pointed out.) Whilst we got the NHS England compilation of the group feedback afterwards, it was not published. Maybe I should do that and ask how each concern will be addressed? I didn’t want to stand on the NHS England national comms. toes, assuming it would be, but you know, what? If the raw feedback says from all these meetings, these are our concerns and we want these changes, and none are forthcoming, then the public should justifiably question the whole engagement process.

It’s public money, and the public’s data. How both are used and why, is not to be hidden away in some civil service spreadsheet. Publish the business case. Publish the concerns. Publish how they are to be addressed.

From that meeting and the others I have been to, many intelligent questions from the public remain unanswered. The most recent care.data advisory workshop summarised many from the last year, and brought out some minority voices as well.

On the day of NHS Citizen, the new flagship of public involvement, people like me who attended the NHS England Open Day on June 17th, or care.data listening events, may be understandably frustrated that there is no publicly available feedback or plan of any next steps.  care.data didn’t make it into the NHS Citizen agenda for discussion for the 18th. [Many equally other worthy subjects did, check them out here if not attending or watch it online.] So from where will we get any answers? Almost all the comment, question and feedback I have heard at events has been constructively critical, and worthy of response. None is forthcoming.

Instead, the article above, this reported speech by Mr.Kelsey and its arguments, make me think engagement is going nowhere. No concerns are addressed. PR is repeated. More facts and figures which are a conflation of data use for clinical treatment and all sorts of other uses, are presented as an argument for gathering more data. Citizens do not need told of the benefits. We need concrete steps taken in policy, process and practice, to demonstrate why we can now trust the new  system. Only then is it worthwhile to come back to communications.

How valued is patient engagement in reality, if it is ignored? How will involvement continue to be promoted in NHS Citizen and other platforms, if it is seen to be ineffective? How might this affect future programmes and our willingness to get involved in clinical research?

I sincerely hope to see the raw feedback published very soon, which NHS England has gathered in their listening events. How that will be incorporated into any programme changes, as well as  communications, will go a long way to assuring the quantity in numbers and quality of cross-population participation.

The current care.data status is in limbo, as we await to see if and when any ‘pathfinder’ CCGs will be announced that will guinea pig the patient records from the GP practices in a trial rollout, in whatever form that may take. The latest official statements from Mr.Kelsey have been on 100-500 practices, but without any indicator of where or when. He appears to suggest ‘shortly’.

What next for care.data? I’ll keep asking the questions and hope we hear some answers from the NHS England Patients and Information Directorate. Otherwise, what was the [&88!@xY!] point of a six month pause and all these efforts and listening?

Publish the business case. Publish the concerns. Publish how they are to be addressed. What is there to hide?

After this six-month engagement, will there be a happy ending? I feel patients are about to be left jilted at the eleventh hour.
 

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You’ll find my more recent posts [last] have more depth and linked document articles if you are looking for more detailed information.

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March 31st: A mother’s journey – intro

March 31st: Transparency

April 3rd: Communication & Choice

April 4th: Fears & Facts

April 7th: What is care.data? Defined Scope is vital for Trust

April 10th: Raw Highlights from the Health Select Committee

April 12th: care.data Transparency & Truth, Remit & Responsibility

April 15th: No Security Blanket : why consent packages fail our kids

April 18th: care.data : Getting the Ducks in a Row

April 23rd: an Ode to care.data (on Shakespeare’s anniversary)

May 3rd: care.data, riding the curve: Change Management

May 15th: care.data the 4th circle: Empowerment

May 24th: Flagship care.data – commercial uses in theory [1]

June 6th: Reality must take Precedence over Public Relations

June 14th: Flagship care.data – commercial use with brokers [2]

June 20th: The Impact of the Partridge Review on care.data

June 24th: On Trying Again – Project Lessons Learned

July 1st: Communications & Core Concepts [1] Ten Things Learned at the Open House on care.data and part two: Communications and Core Concepts [2] – Open House 17th June Others’ Questions

July 12th: Flagship care.data – commercial use in Practice [3]

July 25th: care.data should be like playing Chopin – review after the HSCIC Data Sharing review ‘Driving Positive Change’ meeting

July 25th: Care.data should be like playing Chopin – but will it be all the right notes, in the wrong order? Looking forwards.

August 9th: care.data and genomics : launching lifeboats [Part One] the press, public reaction and genomics & care.data interaction

August 9th: care.data and genomics : launching lifeboats [Part Two] Where is the Engagement?

September 3rd: care.data – a Six Month Pause, Anniversary round up [Part one] Open questions: What and Who?

September 3rd: care.data – a Six Month Pause, Anniversary round up [Part two] Open questions: How, Why, When?

September 16th: care.data cutouts – Listening to Minority Voices Includes questions from those groups.

September 16th: care.data – “Anticipating Things to Come” means Confidence by Design

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Questions, ideas, info & other opinions continue to be all welcome. I’ll do my best to provide answers, or point to source sites.

For your reference and to their credit, I’ve found the following three websites useful and kept up to date with news and information:

Dr. Bhatia, GP in Hampshire’s care.data info site

HSCIC care.data site

medConfidential – campaign for confidentiality and consent in health and social care – seeking to ensure that every flow of data into, across and out of the NHS and care system is consensual, safe and transparent

 

 

 

HM-studio-EDIT-1200x1179

care.data – “anticipating things to come” means confidence by design

“By creating these coloured paper cut-outs, it seems to me that I am happily anticipating things to come…I know that it will only be much later that people will realise to what extent the work I am doing today is in step with the future.” Henri Matisse (1869-1954) [1]
My thoughts on the care.data advisory event Saturday September 6th.  “Minority voices, the need for confidentiality and anticipating the future.”

Part one here>> Minority voices

This is Part two >> the need for confidentiality and anticipating the future.”

[Video in full > here. Well worth a viewing.]

Matisse – The cut outs

Matisse when he could no longer paint, took to cutting shapes from coloured paper and pinning them to the walls of his home. To start with, he found the process deeply unsatisfying. He felt it wasn’t right. Initially, he was often unsure what he would make from a sheet. He pinned cutouts to his walls. But tacking things on as an afterthought, rearranging them superficially was never as successful as getting it right from the start. As he became more proficient, he would cut a form out in one piece, from start to finish. He could visualise the finished piece before he started. His later work is very impressive, much more so in real life than on  screen or poster. His cut outs took on life and movement, fronds would hang in the air, multiple pieces which matched up were grouped into large scale collections of pieces on his walls. They became no longer just 2D shapes but 3D and complete pictures. They would tell a joined-up story, just as our flat 2D pieces of individual data will tell others the story of our colourful 3D lives once they are matched and grouped together in longitudinal patient tracking from cradle to grave.

Data Confidentiality is not a luxury

From the care.data advisory meeting on September 6th, I picked out the minority voices I think we need to address better.

In addition to the minority groups, there are also cases in which privacy, for both children and adults, is more important to an individual than many of us consider in the usual discussion. For those at risk in domestic violence the ability to keep private information confidential is vital. In the cases when this fails the consequences can be terrible. My local news  told this week of just such a woman and child whose privacy were compromised.

“It is understood that the girl’s mother had moved away to escape domestic violence and that her ex-partner had discovered her new address.” (Guardian, Sept 12th)

This story has saddened me greatly.  This could have been one of my children or their classmates.

These are known issues when considering data protection, and for example are addressed in the RCGP Online Roadmap (see Box 9, p20).

“Mitigation against coercion may not have a clear solution. Domestic violence and cyberstalking by the abuser are particularly prevalent issues.”

Systems and processes can design in good privacy, or poor privacy, but the human role is a key part of the process, as human error can be the weakest link in the security chain.

Yet as regards care.data, I’ve yet to hear much mention of preventative steps in place, except an opt out. We don’t know how many people at local commissioning levels will access how much of our data and how often. This may go to show why I still have so many questions how the opt out will work in practice, [5] and why it matters. It’s not a luxury, it can be vital to an individual. How much of a difference in safety, is achieved using identifiable vs pseudonymised data, compared with real individual risk or fear?
“The British Crime Survey (BCS) findings of stalking prevalence (highest estimate: 22% lifetime, 7% in the past year) give a 5.5% lifetime risk of interference with online medical records by a partner, and a 1.75% annual risk.”
This Online Access is for direct care use. There is a greater visible benefit for the individual to access their own data than in care.data, for secondary uses. But I’m starting to wonder, if in fact care.data is just one great big pot of data and the uses will be finalised later?Is this why scope is so hard to pin down?

The slides of who will use care.data included ‘the patient’ at this 6th September meeting. How, and why? I want to have the following  explained to me, because I think it’s fundamental to opt out. This is detailed, I warn you now, but I think really important:

How does the system use the Opt out?

If you imagine different users looking at the same item of data in any one record, let’s say prescribing history, then it’s the security role and how the opt out codes work which will determine who gets to see what.

 

I assume here, there are not multiple copies of “my medications” in my record.  The whole point of giant databases is real-time, synched data, so “my medications” will not be stored in one place in the Summary Care Record (SCR) and copied again in ‘care.data’ and a third time in my ‘Electronic Prescription Service (EPS). There will be one place in which “my medications” is recorded.

 

The label under which a user can see that data for me, is their security role, but to me largely irrelevant. Except for opt out.
If I opt out of the SCR programme at my GP, but opt in at my pharmacy to the EPS, what have I opted in to? Who has permission to view “my medications”  in my core record now? Have I created in effect an SCR, without realising it?

 

If I want to permit use of my record for direct care (SCR) but not secondary uses (care.data) how do the two opt outs work together,  and what about my other hospital information?
Do we understand what we have and have not given permission for and to whom?
There’s only one record, multiple layers of user access who get to see it. How will those be built, and where is the overlap?
We should ask these questions on behalf of others, because these under represented groups and minorities cannot if they are not in the room.

Sometimes we all need privacy. What is it worth?

Individuals and minorities in our community may feel strongly about maintaining privacy, for reasons of discrimination, or of being ‘found out’ through a system which can trace them. For reasons of fear. Others can’t always see the reasons for it, but that doesn’t take away from the value it has for the person who wants it or their need for that human right to be respected. How much is it worth?

It seems the more we value keeping data private, the more the cash value it has for others. In 2013, the FT created a nifty calculator and in an interview with Dave Morgan, reckoned our individual data is worth less than $1. General details such as age, gender and location are in the many decimal place range of fractions of a cent. The more interesting your life events, the more you can add to your data’s total value. Take pregnancy as an example.  Or if you add genomic data it  goes up in market value again.

Whilst this data may on a spreadsheet be no more than a dollar amount, in real life it may have immeasurably greater value to us on which you cannot put a price tag. It may be part of our life we do not wish others to see into. We may have personal or medical data, or recorded experiences we simply do not want to share with anyone but our GP. We might want a layered option like this suggestion by medConfidential to allow some uses but not others. [6]

In this debate it is rare that we mention the PDS (Personal Demographic Service), which holds the name and core contact details of every person with and NHS number past and present, almost 80 million. This is what can compromise privacy, when the patient can be looked up by any A&E, everyone with Summary Care Record access on N3 with technical ability to do so. It is a weak link. The security system relies on human validations, effectively in audit ‘does this seem OK to have looked up?’  These things happen and can go unchecked for a long period without being traced.

Systems and processes on this scale need security designed, that scales up to match in size.

Can data be included but not cut out privacy?

Will the richness of GP record / care.data datasharing afford these individuals the level of privacy they want? If properly anonymised, it would go some way to permitting groups to feel they could stay opted in, and the data quality and completeness would be better. But the way it is now, they may feel the risks created by removing their privacy are too great. The care.data breadth and data quality will suffer as a consequence.

The requirement of care.data to share identifiable information we may not want to, and that it is an assumed right of others to do so, with an assumed exploitation for the benefit of UK plc, especially if an opt-out system proceeds, feels to many, an invasion of the individual’s privacy and right to confidentiality. It can have real personal consequences for the individual.

The right to be open, honest and trusting without fear of repercussion matters. It matters to a traveller or to someone fleeing domestic violence with fears of being traced. It matters to someone of transgender, and others who want to live without stigma. It matters to our young people.

The BMA recognised this with their vote for an opt-in system earlier this year. 

Quality & Confidence by Design

My favourite exhibition piece at Tate Britain is still Barbara Hepworth’s [3] Pelagos from 1946. It is artistically well reviewed but even if you know little of art, it is simply a beautiful thing to see. (You’re not allowed to touch, even though it really should be, and it makes you want to.) Carved from a single piece of wood, designed with movement, shape, colour and shadow. It contains a section of strings, a symbol of interconnectivity. (Barbara Hepworth: Pelagos[4]). Seen as a precious and valuable collection, the Hepworth room has its own guard and solid walls. As much as I would have liked to take pictures, photography was not permitted and natural light was too low. Visitors must respect that.

So too, I see the system design needs of good tech. Set in and produced in a changing landscape. Designed with the view in mind of how it will look completed, and fully designed before the build began, but with flexibility built in. Planned interconnectivity. Precise and professional. Accurate. And the ability to see the whole from the start. Once finished, it is kept securely, with physical as well as system-designed security features.

All these are attributes which care.data failed to present from its conception but appear to be in progress of development through the Health and Social Care Information Centre. Plans are in progress [6] following the Partridge Review, and were released on September 3rd, with forward looking dates. For example, a first wave of audits is scheduled for completion 1/09 for four organisations. HSCIC will ‘pursue a technical solution to allow data access, w/out need to release data out to external orgs. Due 30/11.’ These steps are playing catch up, with what should have been good governance practices and procedures in the past. It need not be this way for GP care.data if we know that design is right, from the start.

As I raised on Saturday, at the Sept 6th workshop advisory committee, and others will no doubt have done before me, this designing from the start matters.  Design for change of scope, and incorporating that into the communications process for the future is vital for the pathfinders. One thing will be certain for pathfinder practices, there will be future changes.

This wave of care.data is only one step along a broad and long data sharing path

To be the best of its kind, care.data must create confidence by design, build-in the solutions to all these questions which have been and continue to be asked. We should be able to see today the plans for what care.data is intended to be when finished, and design the best practices into the structure from the start. Scope is still a large part of that open question. Scope content, future plans, and how the future project will manage its change processes.

As with Matisse, we must ask the designers, planners and comms/intelligence and PR teams, please think ahead  ”anticipating things to come”. Then we can be confident that we’ve  something fit for the time we’re in, and all of our kids’ futures. Whether they’ll be travellers, trans, have disabilities, be in care or not.  For our majority and all our minorities. We need to build a system that serves all of the society we want to see. Not only the ‘easy-to-reach’ parts.

”Anticipating things to come” can mean anticipating problems early, so that costly mistakes can be avoided.

Anticipating the future

One must keep looking to design not for the ‘now’ but for tomorrow. Management of future change, scope and communication is vital to get right.

This is as much a change process as a technical implementation project. In fact, it is perhaps more about the transformation, as it is called at NHS England, than the technology.The NHS landscape is changing – who will deliver our healthcare. And the how is changing too, as telecare and ever more apps are rolled out. Nothing is constant, but change. How do we ensure everyone involved in top-down IT projects understands how the system supports, but does not drive change? Change is about process and people. The system is a tool to enable people. The system is not the goal.

We need to work today to be ahead of the next step for the future. We must ensure that processes and technology, the way we do things and the tools that enable what we do, are designing the very best practices into the whole, from the very beginning. From the ground up. Taking into account fair processing of Data Protection Law, EU law – the upcoming changes in EU data protection law –  and best practice. Don’t rush to bend a future law in current design or take a short cut in security for the sake of speed. Those best practices need not cut out the good ethics of consent and confidentiality. They can co-exist with world class research and data management. They just need included by design, not tacked on, and superficially rearranged afterwards.

So here’s my set of challenge scenarios for NHS England to answer.

1. The integration of health and social care marches on at a pace, and the systems and its users are to follow suit. How is NHS England ensuring the building of a system and processes  which are ‘anticipating by design’ these new models of data management for this type of care delivery, not staying stuck on the model of top-down mass surveillance database, planned for the last decade?

2. How will NHS England audit that a system check does not replace qualified staff decisions, with algorithms and flags for example, on a social care record? Risk averse, I fear that the system will encourage staff to be less likely to make a decision that goes against the system recommendation, ‘for child removal’, for example. Even though their judgement based on human experience, may suggest a different outcome. What are the system-built-in assumed outcomes – if you view the new social care promotional videos at least it’s pretty consistent. The most depressing stereo typed scenarios I’ve seen anywhere I think. How will this increase in data and sharing, work?

“What makes more data by volume, equal more intelligence by default?”

Just like GP call centre OOH today, sends too many people calling the 111 service to A&E now, I wonder if a highly systemised social care system risks sending too many children from A&E into social care? Children who should not be there but who meet the criteria set by insensitive algorithms or the converse risk that don’t, and get missed by over reliance on a system, missing what an experienced professional can spot.

3. How will the users of the system use their system data, and how has it been tested and likely outcomes measured against current data? i.e. will more or fewer children taken into care be seen as a measure of success? How will any system sharing be audited in governance and with what oversight in future?

Children’s social care is not a system that is doing well as it is today, by many accounts, you only need glance at the news most days, but integration will change how is it delivers service for the needs of our young people. It is an example we can apply in many other cases.

What plan is in place to manage these changes of process and system use? Where is public transparency?

care.data has to build in consent, security and transparency from the start, because it’s a long journey ahead, as data is to be added incrementally over time. As our NHS and social care organisational models are changing, how are we ensuring confidentiality and quality built-in-by-design to our new health and social care data sharing processes?

What is set up now, must be set up fit for the future.

Tacking things on afterwards, means lowering your chance of success.

Matisse knew, “”Anticipating things to come” can mean being positively in step with the future by the time it was needed. By anticipating problems early, costly mistakes can be avoided.”

*****

Immediate information and support for women experiencing domestic violence: National Domestic Violence, Freephone Helpline 0808 2000 247

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[1] Interested in a glimpse into the Matisse exhibition which has now closed? Check out this film.

[2] Previous post: My six month pause round up [part one] http://jenpersson.com/care-data-pause-six-months-on/

[3] Privacy and Prejudice: http://www.raeng.org.uk/publications/reports/privacy-and-prejudice-views This study was conducted by The Royal Academy of Engineering (the Academy) and Laura Grant Associates and was made possible by a partnership with the YTouring Theatre Company, support from Central YMCA, and funding from the Wellcome Trust and three of the Research Councils (Engineering and Physical and Sciences Research Council; Economic and Social Research Council and Medical Research Council).

[4]  Barbara Hepworth – Pelagos – in Prospect Magazine

[5] Questions remain open on how opt out works with identifiable vs pseudonymous data sharing requirement and what the objection really offers. [ref: Article by Tim Kelsey in Prospect Magazine 2009 "Long Live the Database State."]
[6] HSCIC current actions published with Board minutes
[8] NIB https://app.box.com/s/aq33ejw29tp34i99moam/1/2236557895/19347602687/1
*****

More information about the Advisory Group is here: http://www.england.nhs.uk/ourwork/tsd/ad-grp/

More about the care.data programme here at HSCIC - there is an NHS England site too, but I think the HSCIC is cleaner and more useful: http://www.hscic.gov.uk/article/3525/Caredata

 

matisse

care.data – the cut-outs: questions from minority voices

“By creating these coloured paper cut-outs, it seems to me that I am happily anticipating things to come…I know that it will only be much later that people will realise to what extent the work I am doing today is in step with the future.” Henri Matisse (1869-1954) [1]

My thoughts on the care.data advisory event Saturday September 6th.  “Minority voices, the need for confidentiality and anticipating the future.”

[Video in full > here. Well worth a viewing.]

After taking part in the care.data advisory group public workshop 10.30-1pm on Saturday Sept 6th in London, I took advantage of a recent, generous gift; membership of the Tate. I went to ‘Matisse – the cut outs’ art exhibition.  Whilst looking around it was hard to switch off the questions from the morning, and it struck me that we still have so many voices not heard in the discussion of benefits, risk and background to the care.data programme. So many ‘cut out’ of any decision making.

Most impressive of the morning, had been the depth and granularity of questions which were asked.  I have heard varying aspects of questions at public events, and the subject can differ a little based on the variety of organisations involved. However, increasingly, there are not new questions, rather I hear deeper versions of the questions which have already been asked, over the last eighteen months. Questions which have been asked intensely in the last 6 months pause, since February 2014 [2] and which remain unanswered. Those from the care.data advisory committee and hosting the event, said the same thing based on a previous care.data advisory event also.

What stood out, were a number of minority group voices.

A representative for the group Friends, Families and Travellers (FFT) raised a number of excellent questions, including that of communications and ‘home’ GP practices for the Traveller community. How will they be informed about care.data and know where their ‘home’ practice is and how to contact them? Whose responsibility will that be?

I spoke with a small group a few weeks ago simply about NHS use in general. One said they feared being tracked down through a government system [which was used for anything other than clinical care]. They register with new names if they need to access A&E. That tells you already how much they trust ‘the system’. For the most part, he said, they would avoid NHS care unless they were really desperately in need and beyond the capability of their own traveller community ‘nurse’. The exception was childbirth when this group said they would encourage expectant mums to go into hospital for delivery. They must continue to do so when they need to and must feel safe to do so. Whether in general they may use primary care or not, many travellers are registered at GPs, and unless their names have been inadvertently cleansed recently, they should be contacted before any data extraction as much as anyone else.

Our NHS is constitutionally there for all. That includes groups who may be cut off from mainstream inclusion in society, through their actions, inaction or others’ prejudice. Is the reality in this national programm actively inclusive? Does it demonstrate an exemplary model in practice of what we hear said the NHS aims to promote?

Transgender and other issues

The question was posed on twitter to the event, whether trans issues would be addressed by care.data. The person suggested, that the data to be extracted would “out us as probably being trans people.” As a result,  she said “I’d want to see all trans ppl excluded from care.data.”

Someone who addressed ‘her complex gender identity’ through her art, was another artist I respect, Fiore de Henriquez. She was ‘shy of publicity.’ One of her former studios is filled with work based on two faces or symbiotic heads, aside from practice pieces for her more famous commissioned work.For her biography she insisted that nothing be concealed. “Put in everything you can find out about me, darling. I am proud to be hermaphrodite, I think I am very lucky, actually.” However, in her lifetime she acknowledged the need for a private retreat and was shy until old age, despite her flamboyant appearance and behaviour. You can see why the tweet suggested excluding any transgender data or people.

‘Transgender issues’ is an upcoming topic to be addressed at the NHS Citizen even on 18th September as well. How are we making sure these groups and the ‘other’ conditions, are not forgotten by care.data and other initiatives? Minorities included by design will be better catered for, and likely to participate if they are not simply tacked on as an afterthought, in tick-box participation

However, another aspect of risk is to be considered – missing minorities 

Any groups who opt themselves out completely, may find that they and their issues are under represented in decision making about them by commissioners and budget planning for example.  If authorities or researchers choose to base decisions only on care.data these discrepancies will need taken into account.

Ciarán Devane highlighted this two-sided coin of discrimination for some people. There are conditions which are excluded from care.data scope. For example HIV. It is included in HARS reporting, but not in care.data. Will the conditions which are excluded from data, be discriminated against somehow? Why are they included in one place, not in another, or where data is duplicated in different collections, where is it necessary, where is the benefit? How can you make sure the system is safe and transparent for minorities’ data to be included,  and not find their trust undermined by taking part in a system, in which they may have fears about being identified?

Missing voices

These are just two examples of groups from whom there had been little involvement or at least public questions asked, until now. The traveller and transgender community. But there are many, notably BME, and many many others not represented at any public meetings I have been at. If they have been well represented elsewhere, any raw feedback, with issues addressed, is yet to be shared publicly.

Missing voices – youth

A further voice from which we hear little at meetings, because these meetings have been attended as far as I have seen so far, mainly by older people, is the voice of our youth.

They are left out of the care.data discussion in my opinion, but should be directly involved. It is after all, for them that we need to think most how consent should work, as once in, our data is never deleted.

Whilst consent is in law overridden by the Health and Social Care Act, it is still the age old and accepted ethical best practice. If care.data is to be used in research in future, it must design best practices now, fit for their future purposes.

How will our under-18s future lives be affected by choices others make now on their behalf?

Both for them as the future society and as individuals. Decisions which will affect research, public health planning and delivering the NHS service provision as well as decisions which will affect the risk of individual discrimination or harm, or simply that others have knowledge about their health and lifestyle which they did not choose to share themselves.

Some people assume that due to social networks, young people don’t care about privacy. This is just not true. In fact, studies show that younger people are more conscious of the potential harm to their reputation, than we may want to give them credit for.

This Royal Academy of Engineering report, [3]” Privacy and Prejudice – Young People’s views on the Development of Electronic Patient Records” produced in conjunction with Wellcome from 2010, examines in some depth, youth opinions of 14-18 year olds.  It tackles questions on medical data use: consent, control and commercialism. The hairy questions are asked about teen access to records, so when does Gillick become applied in practice and who decides?

The summary is a collection of their central questions and its discussion towards the end, which are just as valid for care.data today, as well as for considering in the Patient Online discussion for direct care access. I hope you’ll take time to read it, it’s worth it.

And what about the Children?

Some of our most vulnerable, will have their data and records held at the HSCIC. There are plans for expansion rapidly into social care data management, aligned with the transformation of health and social services. Where’s the discussion of this? Does HSCIC even have the legal capacity to handle children’s social care data?

How will at-risk groups be safer using this system in which their identities are less protected? How will the information gathered be used intelligently in practice to make a difference and bring benefit? What safeguards are in place?

“Future releases of new functionality are planned over the next 12 months, including the introduction of the Child Protection – Information Sharing application which will help to improve the protection of children who have previously been identified as vulnerable by social services.” (ref: HSCIC Spine transition)

“Domestic violence can affect anyone, but women,
transgender people and people from BME groups are at higher risk than the general population.”
(Ref: Islington’s JSNA Executive Summary – 9 – August 2014)

 

We must ask these questions about data sharing and its protection on behalf of others, because these under represented groups and minorities cannot themselves, if they are not in the room.

Where’s the Benefit?

We should also be asking the question raised at the event, about the benefits compared with the data already shared today. “Where’s the benefit?”, asked another blogger some time ago, raising his concerns for those with disabilities. We should be asking this about new dating sharing vs the many existing research databases and registries we already have, with years of history. Ciarán Devane wisely asked this on the 6th, succinctly asking what attendees had expressed.

“It will be interesting to know if they can demonstrate benefits. Not just: ‘Can we technically do this?’ but: ‘If we see primary care data next to HES data, can we see something we didn’t see before’?”

An attendee at the Healthwatch run care.data event in Oxford last week, asked the same thing. NHS England and IT providers would, one would think, be falling over themselves to demonstrate the cost/benefit, to show why this care.data programme is well managed compared with past failures. There is form on having expensive top down programmes go awry at huge public expense and time and effort. On NpfIT “the NAO also noted that “…it was not demonstrated that the financial value of the benefits exceeds the cost of the Programme.”

Where is the benefits case for care.data, to weigh against the risks? I have yet to see a publicly available business case.

The public donation

Like my museum membership, the donation of our data will be a gift. It deserves to be treated with the respect that each individual should deserve if you were to meet them face-to-face in the park.

As I enjoyed early evening sun  leaving the exhibition, the grassy area outside was packed with people. There were families, friends, children, and adults on their own. A woman rested heavily pregnant, her bump against her partner. Children chased wasps and stamped on empty cans. One man came and sold me a copy of the Big Issue, I glimpsed a hearing aid tucked into a young woman’s beehive hair, one amputee, a child with Down Syndrome giggling with a sister. Those glimpses of people gave me images I could label without a second glance. Disabled. Deaf. Downs. There were potentially conditions I could not see in others. Cancer. Crohn’s. Chlamydia. Some were drinking wine, some smoking. A small group possibly high. I know nothing about any of those individuals. I knew no names, no addresses. Yet I could see some familial relationships. Some connections were obvious. It struck me, that they represented part of a care.data population, whom buyers and researchers  may perceive as only data. I hope that we remember them as people. People from whom this programme wants to extract knowledge of their lifestyles and lives, and who have rights to express if, and how they want to share that knowledge. How will that process work?

Pathfinders - the rollout challenges that remain?

At the advisory group led meeting it was confirmed that pathfinders, would be chosen shortly.

[CCGs were subsequently announced here,  see related links, end of page for detail, note added Oct 7th]

But  the care.data programme is “still delivering without a business case”.  Despite this, “between two and four clinical commissioning groups will be selected, “in the coming weeks” to begin the pathfinder stage of the care.data programme, ” reports NIB meeting[8]

It reports what was discussed at the meeting.

“The pathfinders will test different communication strategies before moving forward with the data extraction part of the project.”

I for one would be extremely  disappointed if pathfinders go ahead in the ‘as is’ mode.  It’s not communications which is the underlying issue still. It’s not communications that most people ask about. It’s questions of substance, to which, there appear to be still insufficient information to give sound answers.

Answers would acknowledge the trust in confidentiality owed to the individual men, women, and children whose data this is. The people represented by those in the park. Or by the fifty who gave up their time on a sunny Saturday to come and ask their questions. Many without pay or travel expenses just giving up their time. Bringing their questions in search of some answers.

The pathfinder communications cannot be meaningfully trialled to meet the needs of today and the future design, when the substance of key parts of the message is uncertain. Like scope.

The care.data advisory group and the Health and Social Care Information Centre , based on the open discussion at the workshop both appear to be working, “anticipating things to come…” and to be doing their best to put processes and change in place today, which will be “in step with the future.”

To what extent that is given the right tools, time and support to be successful with all of the public, including our minorities, I don’t know. It will depend largely now on the answers to all the open questions, which need to come from the Patients and Information Directorate at the Commissioning Board, NHS England.

After all, as Mr.Kelsey himself says,

“The NHS should be engaging, empowering and hearing patients and their carers throughout the whole system all the time. The goal is not for patients to be the passive recipients of increased engagement, but rather to achieve a pervasive culture that welcomes authentic patient participation.”

What could be less empowering than to dismiss patient rights?

The challenge is: how will the Directorate at NHS England ensure to meet all these technical, governance and security needs, and yet put the most important factors first in the design; confidentiality and the voice of the empowered patient: the voice of Consent?

*****

This post captured my thoughts on the care.data advisory event Saturday September 6th.  “Minority voices, the need for confidentiality and anticipating the future.” This was about the people side of things. Part two, focuses on the system part of that.

*****

Immediate information and support for women experiencing domestic violence: National Domestic Violence, Freephone Helpline 0808 2000 247

*****

[1] Interested in a glimpse into the Matisse exhibition which has now closed? Check out this film.

[2] Previous post: My six month pause round up [part one] http://jenpersson.com/care-data-pause-six-months-on/

[3] Privacy and Prejudice: http://www.raeng.org.uk/publications/reports/privacy-and-prejudice-views This study was conducted by The Royal Academy of Engineering (the Academy) and Laura Grant Associates and was made possible by a partnership with the YTouring Theatre Company, support from Central YMCA, and funding from the Wellcome Trust and three of the Research Councils (Engineering and Physical and Sciences Research Council; Economic and Social Research Council and Medical Research Council).

[4]  Barbara Hepworth – Pelagos – in Prospect Magazine

[5] Questions remain open on how opt out works with identifiable vs pseudonymous data sharing requirement and what the objection really offers. [ref: Article by Tim Kelsey in Prospect Magazine 2009 "Long Live the Database State."]
[6] HSCIC current actions published with Board minutes
[8] NIB https://app.box.com/s/aq33ejw29tp34i99moam/1/2236557895/19347602687/1

 

*****

More information about the Advisory Group is here: http://www.england.nhs.uk/ourwork/tsd/ad-grp/

More about the care.data programme here at HSCIC - there is an NHS England site too, but I think the HSCIC is cleaner and more useful: http://www.hscic.gov.uk/article/3525/Caredata

 

rose

O my Luve’s like a red, red rose #indyref

“O my Luve’s like a red, red rose, that’s newly sprung in June:       O my Luve’s like the melodie, That’s sweetly play’d in tune.

As fair art thou, my bonnie lass, so deep in luve am I;                 And I will luve thee still, my dear, Till a’ the seas gang dry. [...]”

Robert Burns, 1759-1796 [aged 37]

You can listen to the full poem sung by Suzy Bogguss

I will tell you something about me, you may not know. I am Scottish but I live in England. Friends and I hold a Burns Supper every year. What began as a one off, was repeated in a different home, with the same dozen guests a year later. So a tradition was born to celebrate the life and works of  Scotland’s most famous export.

“His national pride, fierce egalitarianism, and quick wit have become synonymous with the Scottish character itself.”      Robert Burns Birthplace Museum, Dumfries

Burns was famous for his belief in equality, and his poem “Is There for Honest Poverty“, commonly known as “A Man’s a Man for A’ That” of 1795 declared a stance in society, seen today as the rise of a liberalism, which is declared the world over today still. It is often used by the Freemasons as Burns was at the time of his death. It is the fierce pride in humanity of man that infuses Burns’ work and which has transcended time. His love poetry, and rural recordings, being ‘ahead of his time’ made him memorable. But I feel it was his awareness and discussion of identity and social-economic politics which still inspires and what makes his work contemporary.

The Burns Night Declaration

Perhaps it is some of that inspiration that Westminster hoped to capture by naming the latest political deal, granting Scotland more rights which Mr. Brown pledged this week, “The Burns Night Declaration.”

Scots have been promised “modern home rule within the United Kingdom” on a breakneck timetable on Monday if they rejected independence next week.”

From a personal perspective

I think there is a real chance of a yes vote. If Scotland were to vote for independence next week, I will celebrate the freedom, with a divided allegiance. The Scottish ‘heart’ in me will stir with a rallying cry and remember my ancestors who died on the fields of Bannockburn. My English ‘head’ will be disappointed, as I worry for the country downsizing to the size of Denmark will be a shock, and not fully thought out change, without a leader who can bring the whole country together.  I foresee a future in which the Celts are ruled still rather than greater independence for Scotland, with more dominant powers from Brussels instead of London as they seek strength and support as they once did with France in the Auld Alliance, rallying against English oppression. Should there be a yes vote, I will be dispirited, whilst clinging to optimism of change.

I have concerns about the economy, research investment, about its potential effect on the NHS and education provision, arguably better for the people than in England today. But in the end, my concerns don’t count, it is for the Scots in Scotland to decide.

As a Scot living in England, I have no vote. For my part, that is quite alright. For another Scot I know who fully intends moving back ‘up North’ and going ‘home’ in some years time, she is devastated at the thought of Scotland going solo, and that she has no say. Her sister still in Scotland, who can vote, was among those who received a letter in which she felt that it hinted that her employer, the Job Centre, may be put in jeopardy from a yes vote. [She may be right if DWP would need to be significantly 'disentangled' according to this report.] She’s considering voting yes anyway. Why?

Because at local level she thinks their jobs are in jeopardy of potential outsourcing regardless of the vote.

Because she’s lived through years of ‘better together’ and has seen only a decline in standards of living and no one has seemed to really seek to change that. She may not realise, Scotland is not alone in this, but with little elected power in Westminster, they may see independence as their only hope of change.

Because she feels democratically disempowered. No matter who she votes for today, it still results in not getting who they want in charge of government, and no way to oust them if a few areas of England vote that person in. The overall budget control for Scottish spending comes from Westminster. And lastly, in terms of governance, whilst necessary, adding experience and a system of ‘check and balance’ on legislation, the unelected House of Lords sits only in London and can appear accountable to no one, never mind the Scots.

How may politics be affected by the outcome?

I hear many people have had enough of imposed rule as they see it and disconnected leaders. One may think through devolution, more powers for Holyrood would have satisfied the desire for autonomy, but in fact people are fed up with the rhetoric  of the political rule from both Westminster and Edinburgh.

Many dislike the leadership choices on offer [latest FullFact poll stats here Sept 11th]. Women in particular appear to consider this important in their decision. Should the yes vote win, it will not necessarily be a win for Mr. Salmond, but a win for independence.

Key is, what will that independence really look like? It will be interesting to see. Would it be what Mr. Salmond expects? What scenarios have been thought out [1], debated, and what may have been missed?

The red rose of Labour has become faded in Scotland.  This has and  will continue to have an impact on future General Elections. I believe however, it must be encouraged to continue to grow, come back and actively thrive in Scotland regardless of this vote outcome. All mainstream parties would do well consider this, above party politics. There is a risk that the disenchantment with mainstream politics will give rise to more extreme factions. A sense of identity is a good thing, but at its extreme can be twisted into a damaging minority view of nationalism which is based on one group view over another, the real-world diversity of a nation excluded. Should mainstream parties leave a vacuum in the garden of Scottish politics, others will be quick to fill it, and it is often ugly weeds which take root fastest.

How has the People’s involvement in politics been affected?

Perhaps the best thing about this campaign has been an awakening. An awakening of people’s role in the democratic process, exemplified by the planned march on voting day in one area of Glasgow.  Where low turnout is typical organisers aim to stir people and carry them with them, to the polls, [which may or may not be legal electoral practice]. There has been an unprecedented number of electoral registrations.  But also an awakening of the big parties that your action and inaction matters. It has been forgotten in recent apathy. This awakening will not be restricted to Scotland, and politicians across Europe should learn from these experiences quickly, as calls for independence in other places are bound to come.

The Scots are inspirational to many.  Whilst fiction, the spirited speech of William Wallace in Braveheart calls to the basic instinct in us all, for freedom. We Scots have a strong sense of history as part of our identity. Entwined in that is the relationship between the wealthy landed Scots and the English nobility, and the complex succession of the throne and in-fighting of Scots lairds.  Who sided with whom, when and how trust was won and lost became glorified legend in Rob Roy and Braveheart, but it’s not all based on fiction, but historical fact.

What has been perhaps unfairly represented by some media headlines and survey statistics, is the image of how “the English” feel about “the Scots” and how the two countries would be after a yes vote. One survey showed well over 66% in favour of the Union, but the survey chose to represent a subjective statement on currency as its headline, for example. Poll upon poll state conflicting measures as ‘fact’. It is hard to separate fact from feeling in an emotive debate.

A Troubled Relationship

If you are not Scottish, you may or may not be familiar with the Scot’s spirit of the everyday, not celebrities nor stereotypes. If you have time, listen to this speech, a Burns night reply from the lassies. It gives the ladies a chance to ‘get their neb in’. (4.28) It’s meant to be tongue in cheek and irreverent, and not to take the subject too seriously, and this hits the spot. But mainly because it hints at something of what matters to Scots  in a speech about Burns.  In particular it’s worth considering this one snippet. With humour she tells us what matters above politics and above class, is relationships and communication. It is the relationship and communication that has broken down between Westminster and the people in Scotland which may be the Union’s  downfall. The Scottish People feeling neglected, had stopped talking to Westminster a long time ago, and Westminster didn’t notice.

Robert Burns understood People

Burns was a poet, a man of love and passion. A man of the heart. A man popular with women, a philanderer, yet perhaps one of the first feminists? Not a warrior, not a career politician, he was a man for the people. He recognised women’s rights above and amongst politics, and spoke up on our behalf:

“While Europe’s eye is fix’d on mighty things,
The fate of empires and the fall of kings;
While quacks of State must each produce his plan,
And even children lisp the Rights of Man;
Amid this mighty fuss just let me mention,
The Rights of Woman merit some attention.”

Visiting politicians would do well to appeal to the rights of women as Burns did. I believe that it is not a romantic notion of freedom, which will lead to a majority of the yes vote. It is another practical aspect of life exemplified in Burns’s poetry which matters to people today, and how we live. It can affect all, but disproportionally affects women, it is poverty:

Visiting Scotland I have seen an increase in poverty and hardship in recent years, and experienced the Scots’ spirit which has refused to give in and tries to resiliently ride above it. Scotland has found life economically tough in the last twenty years. Bit by bit, it has seen its shipbuilding, steel making and coal mining weaned away with few jobs to replace those hard industries. Farming and fishing on small scale has become harder to compete worldwide. Scots believe in society and living well together. They’ve seen the right to a pursuit of happiness undermined at every turn, in the ideology focused on the economic wealth development of the individual. Westminster may have woken up too late to the effects that has had over years of neglect and apparent blinkered ignorance “down South”.
Politicians could learn from Burns

These last minute efforts of visiting politicians may or may not be planned in the campaign.  But as Burns said,

“The best laid schemes o’ mice an’ men gang aft agley.”

The politicians may visit all they like, for a day or a week, better late than never. It will not make or break the majority of voters, voting with their head based on practical matters, but it may influence the ‘don’t noes’ the ‘vote for freedom’ who vote only with the heart at the last minute, and influence enough to swing the outcome. The majority of people will decide based not on last ditch efforts and promises, but on how they want to live, and what kind of society they want to see. Will speeches and promises made in a week, override experiences of many years? Or will they swing an influential minority?

The question is how convinced will voters be of the need for a complete break from the United Kingdom and true independence with its associated risk, versus the offering in the Burns Night Declaration? How much will heart rule the head or vice versa?

Whichever way the vote may go, how will mainstream political parties react and cultivate the long term relationship between Scotland and England? There will be a period between the vote and enactment. How will uncertainty be handled in that interim? How will the yes and no factions keep talking to one another, and grow as one nation, whether in a united, devolved or separate states?

O my Luve’s like a red, red rose

Scotland whichever path you choose to take, I will follow your decision closely.  Whatever happens next week, some will be broken hearted. I hope I won’t be among them. And I hope that for those who are disappointed with the outcome, we will all be kind, encouraging and not seek to blame, as we go about restoring our trust, our relationships and grow together in a positive, new direction. Society cannot afford a political vacuum which will provide space for the weeds of extremism to grow between us.

Wherever we are born, it is not unexpected to continue to have positive feelings for that country, as our birthplace. I may have left over thirty years ago, but my heart is still in the Highlands. I still love Scotland and hope she still loves us enough to stay together.

But I’ll understand if not.

“But to see her was to love her,
Love but her, and love forever.
Had we never lou’d sae kindly,
Had we never lou’d sae blindly,
Never met – or never parted –
We had ne’er been broken hearted”

Robert Burns, 1759-1796

***

[1] Governing after the Referendum – by the Institute for Government  http://www.instituteforgovernment.org.uk/sites/default/files/publications/Scenarios%20paper%20-%20final%20APJR.pdf 

 

gps_controller

Care.data – my six month pause, anniversary round up [Part 1]

On the 18th February 2014, a six month pause in the rollout of care.data was announced. [1] It’s now September. Six months is up.

When will we find out what concrete improvements have been made? There are open questions on plans for the WHAT of care.data Scope and its future change management, the WHO of Data Access and Sharing and its Opt out management, the HOW of Governance & Oversight, Legislation, and the WHY – Communication of the care.data programme as a whole. And WHEN will any of this happen?

What can happen in six months?

Based on Mo Farah‘s average running speed of 21.8km/hour over The Olympic Games 10,000m gold medal winning performance, and on 12 hours a day, he could have covered about 47,000 km in that time. Once around the world, in those 180 days. With some kilometres spare margin, into the bargain.

That’s perhaps unrealistic in 180 days, but last February promises made to the public, to the Health Select Committee and Parliament were given about data sharing as both realistic, and achievable.

So what about the publicly communicated changes to the care.data rollout in the six month time frame?

The letter from Mr.Kelsey on April 14th, said they would use the six months to listen and act on the views of patients, public, GPs and stakeholders.

I’d like to address some of those views and see how they have been acted on. Here’s the best I have been able to put together of promises made, and the questions I still have, six months on.

Scope. What part of our records is included in care.data?

The truth is this should be the simplest question, but seems the hardest to answer. Scope is elusive, and shifting.

A simple description would help us understand what data will be extracted, shared and for what purpose. The public needs an at-a-glance chart to be properly informed, to distinguish between care.data, the Summary Care Record, HES/SUS and how patient data is used, by whom for what purposes.  This will help patients distinguish between direct and indirect care uses. What doctors would use in the GP practice, versus researchers in a lab. It will help set expectations for Patient Online.  It could help explain data use in Risk Stratification.  [see care.data-info by Dr.Neil Bhatia for high level items in scope, or field name detail here p22 onwards] [11]. This lack of clarity was already identified in April 2013, point 3.3, but nothing done.

Mid-August to further complicate matters, it became apparant from published care.data advisory group minutes, that the content scope is under review and may now include sensitive data. This was met with serious concern in many quarters, not least HIV support groups, on broadening the scope of care.data extraction and access.  I realised I wasn’t in the least surprised, but continue to be shocked by the disconnect between project leadership and the public.

Are the listening exercises a complete waste of time?

If people aren’t comfortable sharing basic health records, how will suggesting they share anything more sensitive be likely to encourage participation?

[The scope of how our GP part of care.data will be used is also under consideration for expansion to research - more in part two, on that.]

Scope is undefined. It will continue to ever expand as the replacement for SUS. In April, I wrote down my concerns at that time. Most of which remain unchanged.

Stephen Dorrell, MP on the 11th March in Parliament summed up nicely, why this move now to shift scope is ludicrous. If we do not have stability of scope, we cannot know to what we are consenting. This is the foundation of our patient trust.

Mr Dorrell: I am not going to comment on whether the free text data should or should not be part of the system, or on whether the safeguards are adequate. However, I agree with the hon. Lady absolutely that the one sure way of undermining public confidence in safeguards is to change those safeguards every five minutes according to whichever witness we are listening to.

If the Patients & Information Directorate at NHS England is serious about transparency, then we should be clear about all our patient data, where it comes from, where it goes to, who accesses it and why.

Data protection principle 3 requires that the minimum possible data required is extracted, not excessive. Is this being simply ignored, as inconvenient in a project which intends scope to ever accumulate as SUS replacement?

“Will NHS England prepare an at-a-glance of differences between SCR and care.data, and HES/SUS extractions and users?”

scrcdoverview

 

Conclusion on Scope & its Communications:

This scope clarification alone would be I believe, if well done, one of the most effective communications tools for patients to make an informed choice.

1. We need to know what parts of our personal, confidential records, sensitive or otherwise are to be extracted now. 

2. How will we be informed if that scope changes in future?

3. What do we do, if we object to any of those items being included?

Before any launch of pilot or otherwise, a proper plan to ensure informed communication and choice, today and looking to future scope changes, must be clear for everyone.

What’s happened since February to the verbal agreements and promises that were made back then?

Whether in Parliament by Dan Poulter and the Secretary of State Mr.Hunt, in Select Committee Hearings, by the Patients & Information Directorate at NHS England and in patient facing hour at the mixed-subject Open Day, promises have been made, but what evidence has the public, that they are real? There has been little public communication since then.

I have read, watched or attended NHS England Board meetings, Health Select committee meetings, and read the press, media releases and social media. I’ve been to a general NHS Open Day, listened in to NHS England online events, the first HSCIC Partridge Review follow up event, and spoken to patients, public and charity groups. Had I not, I would know nothing more than I did in February which was, that something had been put on hold, about which I should have, but hadn’t, received a doordrop leaflet.

Pilot practices ‘pathfinders’ we were told will trial the extraction, in six months, then in autumn, or October 1st according to Mr.Kelsey at the Health Select Committee (extract below).

reply

I’ve not seen anywhere yet, where these practices will be, nor that patients have been informed.  The latest status I read was on EHI. In response to this lack of information, medConfidential wrote to Healthwatches and CCGs with important questions and ideas. [Well worth a read].

Scope of Access – Who will get our records and for what?

Where and to whom may our data be transferred?

As part of the what of scope, we also need clarification on the who will be in scope in which countries to access data.

“Can I confirm now, that the data connected to care.data will not be allowed outside the United Kingdom? Let me confirm that before we have further hares running.” Tim Kelsey, said at the Health Select Committee.

Since GP care.data is to be connected with HES data, and data may be linked via the Data Access Request Service (the recently renamed former HSCIC Data Linkage Service DLES) on demand;

Q.  How will I know in future that there are no plans to release my data outside the UK and EU, as HES has been in the past?

As far as I have read, geographical scope is not legislated for. I would like to be pointed to this if it is.

From the Health Select Committee: Committee Room 15 : Meeting started on Tuesday 25 February at 2.29pm – Ended at 5.20pm

Mr. Tim Kelsey, National Director for Patients and Information stated: The pause was announced, precisely to address the issues.

“People are concerned about the purpose to what their data is being put.”

It’s not yet been addressed. Neither for the now, nor the future.

We need to have a robust mechanism in place for all future scope of use changes. If today I agree to have some of my data extracted used for public health research for the public good, I don’t want to find that I’ve had all my personal details including my genomic records [which personally are somewhere in my record already] spliced with Dolly the sheep research, in the hunt for a cure for arthritis five years down the line, and there’s another me living at the Roslin Institute. [I jest to exaggerate the point, not all research definitions are equal].  A yes today, cannot mean a yes for anything and everything.

The opt out term at present only allows a later ‘opt out’ to mean that data is made less identifying ‘pseudonymous’ from that request date, nothing deleted. ‘Opt out’, is not ‘get out’.

The records from before that request date, will remain clear and fully identifying for all time. So if a company requests an historical report, will our identifiable data still be included in it?

Opt out is not as simple as it sounds.

OPT OUT

The whole issue of opt out was at best an inaccurately communicated process. I believe it was misleading.

What is still wrong to my mind with this mechanism, is that there appears to be the assumption that all data may be matched and de-identified before release. That corresponds to the September 2013 NHS England Directions led by Mr. Kelsey to HSCIC saying there is “ “no need” to take into account individual objection to pseudonymous data sharing “. [2] And the patient leaflet, which was produced before any opt out changes, which stated we could object to ‘identifiable’ data sharing. That ‘identifiable’ doesn’t include all our data.

I’d like to see that clarified. Because Mr.Hunt has promised an opt out in entirety:

25th February in Parliament:

Mr.Hunt: …”we said that if we are going to use anonymised data for the benefit of scientific discovery in the NHS, people should have the right to opt out. We introduced that right and sent a leaflet to every house in the country, and it is important that we have the debate..”

“the reason why we are having the debate is that this Government decided that people should be able to opt out from having their anonymised data used for the purposes of scientific research

Dr Julian Huppert (Cambridge) (LD): There are of course huge benefits from using properly anonymised data for research, but it is difficult to anonymise the data properly and, given how the scheme has progressed so far, there is a huge risk to public confidence. Will the Secretary of State use the current pause to work with the Information Commissioner to ensure that the data are properly anonymised and that people can have confidence in how their data will be used and how they can opt out?

Hunt: “I will do that, and NHS England was absolutely right to have a pause so that we ensure that we give people such reassurance…”

Status: the public still has no communication about any opt outs on offer or a consistent, effectively communicated method by which to request it.

Our data continues to be released regardless.

What I want to understand on opt out:

1. Can I choose to have my data used for only care, or for bona fide public health research, but not, for example, other types, such as commercial pharma marketing or data intermediaries?

2. Can I restrict the use of all my children’s data, to include all of it, including fully ‘anonymous’ data as the Secretary of State stated? Not only restricting red and amber, but all data sharing?

3. How will patients know that all of their medical data is covered by these options, not only our GP records? (For other data held see > http://www.hscic.gov.uk/datasets)

4. Will NHS staff be given the right to opt out to prevent their personal confidential data or employment data being shared as part of the workforce data set?

5. Does opt out really mean opt out – when will we see the revised definition?

6. How will objection management (storing our opt out decision) be implemented with other data sharing? (SCR, Electronic Prescription Service, OOH access, Proactive care at local level.)

7. How will objection be effectively communicated and measured?

8. Will the BMA vote [3] be ignored by the Patients & Information Directorate at NHS England? They called for an opt in system? And also for it to have the option to be used only for improving care, not commercial exploitation. They appreciate the risks of losing patient confidentiality and trust.

9. Will the views of Dr. Mike Bewick, deputy medical director at NHS England, also be ignored, who said parts (referring to commercial use) should be ‘opt-in’ only? [Pulse, June 2014]

10. What will ensure opt out remains more than just Mr.Hunt’s word, if it has no legislative backing?

The opt out on offer at Christmas was to restrict identifiable data sharing. There was “no need” to take into account individual objection to pseudonymous data sharing said the September 13th NHS England directions. Those NHS England Board directions from September and December 2013 are now possibly out of date, but I’d like to see new ones which replaced them, to reassure me that an opt out that we are offered,  works the way I would expect.

Most importantly for me, will the opt out be given more legislative weight, Q.10? Today I have only the Secretary of State’s word that any “objection will be respected.”  And as we all know, post holders come and go, a spoken agreement by one person, may not be respected by another.

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ACCESS

Many of the concerns around which organisations will have access to our medical records, and which were somewhat dismissed on Newsnight then, have been shown to have been legitimate concerns since:

“Access by police, sold to insurance companies, sold for commercial purposes” Newsnight, February 19th 2014
… all shown to be users of existing medical records held by the HSCIC through the Partridge Review.
police

Which other concerns over access were raised and have they been addressed?

Dr. Sarah Wollaston MP, then member, now Chair, of the Health Select Committee raised the concerns of many when she asked whether other Government Departments may share care.data. Specifically she asked Mr.Kelsey,

“are you going to have a clear concrete offer to the public at the end of the six-month delay as to how these requests will be handled [...] see if their data is going to be accessed by DWP [...]?”

dwp_wollaston

I believe this is still more than a very valid and open question, particularly with reference to the December 2013  Admin Data Task Force which was exploring a ‘proof of concept’ to link DWP [6] and Department of Health data:

“Primary and Secondary Care interventions with DWP over a six year period.”

DWP_strategy

 

HSCAct

 

At the Health Select Committee evidence session, Mr. Kelsey and Mr. Jones did not give a straight yes/no answer to the question.

Personally I believe it would be clearly possible that DWP administering social care or welfare payments will make a case under ‘health and social care’. Unless I see it in legislation that DWP will not have access care.data or other HSCIC held data, I personally will assume that it is going to, and may have already especially given the ‘primary and secondary linking’ pilot listed above.

What about other government departments access to health data?

A group met for the event ‘Sharing Government Administrative Data: new research opportunities’: strategic meeting on 14 July 2014, at the Wellcome Trust, London [4]  – at which both care.data and DWP data had their own agenda slots.

The DWP holds other departments’ data and is “open to acting a hub.” July 2014 [7]

The Cabinet Office presenter included suggestions UK legislation [9] may change to enable all departments (excluding NHS) to share data, and the ADT recommended that new ‘Data Sharing” legislation should be put forward in the next [Parliamentary] term.

1. Since HSCIC is an ALB and not NHS, are they included in this plan to broaden sharing across government departments?

2. Will the care.data addendum of September 2013 be amended to show the public that those listed then, are no longer considered appropriate users?

3. Will Mr.Kelsey now be able to answer Dr.Wollaston MP’s question regards DWP with a yes / no answer?

Think tanks, intermediaries and for the purposes of actuarial refinement were included in documents at the time, which suggested that DAAG alone in future, would review applications.

The DAAG is still called the DAAG and appears to have gone from 4 to 6 members. The Data Access Advisory Group (DAAG), hosted by the Health and Social Care Information Centre (HSCIC), considers applications for sensitive data made to the HSCIC’s Data Access Request Service.

Three key issues remain unclear to me on recent Data Release governance at DAAG:

1. Free text access and 2. Commercial use 3. Third Party use

The July 2014 DAAG approved free text release of data for CSUs on a conditional cleansed basis, and for Civil Eyes with a caveat letter to say it shouldn’t be used for any ‘additional commercial use.’ It either is or isn’t commercial I think this is fudging the edges of purpose and commercial use, and precisely why the lack of defined scope use undermines trust that data will be used only for proper purposes and in the definition of the Care Act.

Free text is a concern raised on a number of occasions in Parliament and Health Select Committee.  On the HSCIC website it says, none will be collected in future for care.data. How is it now approved for release, if it has not already been collected in the past – in HES?  So it would appear, free text has already been extracted and is being released. How are we to trust it will not be the case for care.data?

****

In summary: after six months pause, it remains unclear what exactly is in scope, to whom will it be released. We are still not entirely clear who will have access to what data, and why.

In part two I’ll look in brief at what legislative changes, both in the UK and wider EU may influence care.data and wider health data sharing.  Plus some status updates on Research seeking approval, Changes to Oversight & Governance and Communications.

That commercial use, the concept that you are exploiting the knowledge of our vulnerability or illness, in commercial data mining, is still the largest open question, and largest barrier to public support I foresee. ‘Will the Care Act really help us with that?’ I ask in my next post.

MedConfidential have released their technical recommendations on safe settings access to data. Their analogy struck me again, as to how important it is that the use of data is seen by the users, as a collective.

Any pollution in the collective pool, will contaminate the data flow for all.

I believe the HSCIC, NHS England Patients & Information Directorate, the Department of Health need to accept that the continued access to patient data by commercial data intermediaries is going to do that. Either those users, some of whom are young and inexperienced commercial companies, need to be excluded, or to be permitted very stringent uses of data without commercial re-use licenses.

The commercial intermediaries still need to be told, don’t pee in the pool. It spoils it, for everyone else.

I’ll leave you with a thought on that, from Martin Collignon, Industry Analyst at Google.

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For part two, follow link >>here>>  I share my thoughts on current status of the HOW of Governance & Oversight, Legislation, and the WHY – addressing Communication of the care.data programme as a whole.  And WHEN will any of this happen?

Key refs:

[1]. Second delay to care.data rollout announcedThe Guardian February 18th 2014: http://www.theguardian.com/society/2014/feb/18/nhs-delays-sharing-medical-records-care-data

[2] NHS England directions to HSCIC September 13th 2013: http://www.england.nhs.uk/wp-content/uploads/2013/09/item_5.pdf

[3] BMA vote for opt In system: http://www.bmj.com/content/348/bmj.g4284

[4] July 14th at Wellcome Trust event ‘Sharing Government Administrative Data: new research opportunities’

[5] EU Data Legislation http://www.esrc.ac.uk/_images/presentation%208_Beth%20Thompson%20Wellcome%20Trust_tcm8-31281.pdf

[6] DWP data linkage proof of concept trial 6 year period of primary and secondary data, December 2013

[7] Developments in Access to DWP data 2014

[8] NHS data sharing – Dr.Lewis care.data July 2014 presentation

[9] Possible UK Legislation http://www.esrc.ac.uk/_images/Presentation_7_Rufus_Rottenberg_tcm8-31280.pdf

[10] Progress of the changes to be made at HSCIC recommendations of the Partridge Review https://medconfidential.org/wp-content/uploads/hscic/20140903-board/HSCIC140604di_Progress_on_Partridge_review.pdf

[11] Scope list p22 onwards: http://www.england.nhs.uk/wp-content/uploads/2013/08/cd-ces-tech-spec.pdf

[12] Health and Social Care Transparency Panel April 2013 minutes https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/259828/HSCTP_13-1-mins_23_Apr_13__NewTemp_.pdf

first

Care.data – my six month pause, anniversary round up [Part 2]

In part one, I looked at the status of what data care.data extracts – examining scope, the role of management of scope creep in trust, opt out management, and the who, of accessing our data and for what purposes.

Here in part two, I want to give a six-month status update of my opinion of where the public is on understanding the HOW of Governance & Oversight, Legislation, changes to the scope governance to include Research, examine work-in-progress and look to explaining the WHY of care.data, the Communications of the programme as a whole.  Leading to ask, WHEN will any of this happen?

To go back to part one of this post > click here.

Care.data – a six month pause, anniversary round up – Part 2

What legislative changes may influence care.data sharing?

In July, at an ADT meeting Dr.Geraint Lewis was billed in the agenda to be speaking on care.data. [8] At the same meeting, the item on European Data directive, where the Wellcome Trust presenter [5] noted that the new EU legislation would require informed consent for identifiable data sharing, and limit pseudonymous data sharing without consent deserves a special mention, and question all of its own.

Mr.Kelsey pointed out in January, at the ISCG meeting that his colleague was over in Brussels to discuss the new EU law. So they are clearly well aware there are implications.

Now a theoretical question. If you were designing a process upon which new legislation were going to have a big effect, would you a) try and design your process accordingly to take the new law and best practice into account to be ‘ahead of the game’ or b) rush to get the project finished before the change of law affected it, and hope it is not retroactive?

Q. Is this coming change in EU Data Protection one reason for the big rush to get care.data extracted?

In terms of UK legislation, what has changed since the pause? The Care Bill became the Care Act in May.

Senior figures in the Lords, in public health as well as MedConfidential raised concerns and proposed amendments.

Considerations included defining:

1. Purposes to exclude commercial exploitation

2. Oversight & Governance

3. Opt out on statutory basis

In the preceding Care Bill debate, Jamie Reed outlined the amendment to wording and how the public may interpret its effect. I agree with what he said:

“the new clause provides for entirely elastic definitions that, in practice, will have a limitless application.”

clause
Unless there are plans to sub-define the clause and to legislate to support that,  I await to see how that ‘purposes ‘ definition can do anything to help support our trust that actuaries & insurance firms, health or pharmaceutical marketing researchers or other third parties we cannot imagine, will be legally entitled to request to buy data. The HSCIC can only measure requests against the law under which it is given to operate after all.

a) the promotion of health – interpret that how you will.

“The DARS process has three stages – Application, Approval, and Access.”

I fear this kind of sets the tone for the expectation of applicants, you ask you get – and there’s no mention of rejection in there. But then, I’m probably being too cynical. A list of the number and type of rejected applications by organisation, would improve my trust here. CAG publishes it, where is the same transparency for DAAG? How many applicants are rejected vs accepted each month?

How will DARS interpret “the promotion of health?” I’d like for them to give case scenarios of the problematic past releases, and judge now, whether they would be accepted again or not.

Mr. Kelsey identified that this definition of purposes was vital to the public in February, but I don’t think it has been clearly addressed since.

first

 

I look forward to hearing more about what clear and specific guidance there will be to the Data Access Group,  and what protections there will be for corrective action on data mismanagement, the so called ‘one strike and out’, which must encourage breach transparency, not drive reporting underground.

The second big ticket  item the Care Act is to have brought in, is a change to oversight.

Changes to Oversight and Governance?

Again, I am yet to see any documented organisational mapping of how Data Access will be reviewed and regulated going forward, taking this new legislative amendment into account. There was some mention of CAG and IIGOP at the HSCIC stakeholders’ meeting, but nothing documented to view how recommendations may become enacted. Progress is somewhat unclear, but awaiting monitoring in the pause.

Mr. Kelsey has said the the IIGOP has been asked to advise, but I understand it has no statutory footing, nothing to make its recommendations effective, should the Patients & Information Directorate at NHS England disagree. [We do well to remember past form here. The Caldicott 2 recommendations on data sharing, which stated they ‘the Review Panel does not support such a proposition’ [7.2] that there should be dated shared for commissioning in an assumed ‘consent deal’ without clear legal basis and patient communication. It goes so far as to say it is not aligned to the rights and commitments in the NHS Constitution. This was chaired by Dame Caldicott, who also chairs IIGOP.]

When the Patients & Information Directorate /NHS England and the BMA vote also disagree, and NHS England seems to have ignored the BMA ARM call for opt in - at least I have seen no public facing statement which even acknowledged it had happened at all – which strikes me as being just plain rude to your most significant stakeholder – it gives me little hope that the Patients & Information Directorate at NHS England is going to take another group’s perspective into account. I hope I am proved wrong.

But there is no outside oversight or governance which can impose action, or intervene with any legal weight in disputed decision making like this.

GPs as Data Controllers are between a rock and a hard place still. Legally bound to release data by the Health and Social Care Act 2012 if the Patient & Information Directorate at NHS England directs them to do so, professionally bound to maintain confidentiality.second

In February at the HS Committee, Dr. Nagpaul said they were,

“looking forward to the next six months enabling our patients to be properly informed so …they can make an informed choice.

Since the Care Act and scope have changed since then, the opt out mechanism is unclear, and nothing has come from national level to acknowledge their call for opt out, I for one am not surprised patients have still not been informed in these six months. It would be hard to pin down what we could have been informed of precisely.

gps_controller

The Secretary of State wrote on April 25th, asking to ensure current practices are up to the task, but as polite as it is, a letter is no form of governance.  It rather feels like a distant wave at a drowning swimmer, acknowledging an issue, but staying well clear from actually having to go into the water.

Currently it is IAG which reviews the requests for changes to the scope of the GPES extraction tool. It has direct governance and independence. Where it fits ongoing between CAG and DAAG is unclear to me.

And what about research?

This is possibly the latest *new* development, that the care.data advisory minutes hints at. That research purposes will now be put forward to the IAG in a formal request for the GP part of care.data to be accessible for research. (Because yes, despite all the campaigning and everyone and their kittens saying how good care.data would be ‘for research’ it’s still, to date, only approved for commissioning purposes. NOT for research.) HES, SUS other  data which HSCIC already has is used in research already. Whilst some primary care data may used in research today where practices have otped in to other research databases, such as CPRD, I believe that is only in an anonymous format. Now, how this works today with linkage via HSCIC and how much we know about it, may be unclear to the public. But it’s not the same as GP primary data in identifiable format being extracted and stored and linked with every other part of your health and social care records and more, for research and sale, as is the care.data intent.

I would like to see this instead considered, a layered approach to opt in.  This enables some personal level of data governance as well as consent. Saying yes to public research, but no to commercial marketing research or re-use. Personally, I’d also want to split out genomics from other research. This supports patient choice, so oft touted as core to the new NHS. The current set up is diametrically opposed to everything NHS England purports to stand for. How can patients trust a system, which says one thing, and acts entirely against it?

Well, if the proposers can define ‘research’, I’m happy to consider signing up to opt in for its use. If it’s a blank cheque to use the knowledge of my children for just anything, unlimited in scope and time – forget it. And why? Because I am concerned that the pseudonymous use of data and use of pseudonymous tissue are too loosely governed. Who is auditing today the ethical combining of genomic mapping and pseudonymous data use? Who is using it, and for what? Where is it information that may be sold, and to whom? I don’t want their future choices limited by something I didn’t pay attention to on their behalf, today.

Why does the NHS England Patient and Information Directorate want to extract care.data? Have we lost sight of the most valuable purposes of data, and how to use it well, through the commercial drive for UK plc – purposes put ahead of research? Commissioning purposes and commercial mining are taking precedence over care and confidentiality.

Stephen Dorrell MP,  in Parliament on March 11th (Col. 198) focused rightly on defining the purposes of care.data.  In fact the IAG has not approved research for care.data (GP extracted) to be used in research:

Mr Dorrell: First, we must concentrate the rationale for the programme on to patients. Looking back at how NHS England has got itself into this position over the past few weeks and months, I have lost count of the number of times I have been told how important the programme is for research. I absolutely agree that it is important for research, but the health and care system does not exist to support research; it exists to treat and care for patients. The logic of allowing commissioners to develop joined-up services that respond to individual people’s needs—and the pattern of need based on multi-morbidity to which the right hon. Member for Sutton and Cheam (Paul Burstow) has referred—must be placed centre stage in the justification for the improved handling of data in the health and care system.

I go back to the point that this must be about treating people, not conditions. We cannot achieve that if we do not have the information to allow us to connect up the experience of the patient between one part of the system and another. In regard to the logic behind NHS England’s plans, yes there is a research argument, but—with apologies to the research scientists—it is a secondary argument. The primary argument is that we must improve the services delivered to patients and service users.

Which is why it was odd at the time, to see the Wellcome Trust driven ‘Peter’ campaign supported by the 40 research charities, championing the need to have our data. It was data (in HES/SUS) they already had access to.  At the same time care.data [wave one, primary care GP extraction] was collapsing under the weight of the press and public shock that our hospital records had been shared with third parties for years without consent.

What has practically been done by the bodies involved in data sharing?

From an NHS England point of view, I’ve seen little. HSCIC on the other hand has seemed proactive and productive. [10]

The most significant undertaking was the Partridge Review, which analysed in depth 10% of the data sharing agreements of the last eight years.

The HSCIC has undertaken to continue complete logging of registered approved data releases on a  quarterly basis.

There is also an audit function in development. “These audits will check that our customers are adhering to the obligations documented in the Data Sharing Contract and Data Sharing Agreements.”  Whether or not that will mean that HSCIC auditors will go onsite at data recipients in FDA manufacturing audit-style, is probably another matter.

The access mechanism is under review, and at the open HSCIC meeting in July Kingsley Manning stated that a secure access lab will be part of their offering next year. How that will affect who has what access to what data, remains unknown. But it appears there may be work-in-progress:

On 1st September, Ciaran Devane posted on twitter that, “With care.data advisory group chair hat on, well done to hscic team who listened very well at session on proposed secure data facility.”

Today in contrast, there are currently two ways in which data can be accessed:

  1. Data are released to you using a Secure File Transfer Mechanism.
  2. You may access Hospital Episode Statistics (HES) data using the HES Data Interrogation System.

The HSCIC Data Access Policy has been updated on their website and now states it is supported by the following principles which includes:

  1. share information to support the provision of health and social care and the promotion of health; not for solely commercial purposes;

{my italics} Solely, does not exclude enough in my opinion. This is where the care.data will meet resistance still, if it cannot see the wisdom of giving up its use for commercial purposes.

Their stakeholder meeting “Driving Positive Change” hosted at The King’s Fund was minuted here.

My own opinions on attending the meeting, are in these past blogs posts. Part one and Part two.

HSCIC also updated their Freedom of Information Disclosure Log which had been out of date by well over 6 months.

Lots going on at HSCIC.

What else has happened in between then and now? What were the expectations of the pause?

npickles6months

 

The HSCIC did have a Code of Confidentiality consultation, which was most recently published.

The Department of Health issued their Annual Assessment of the NHS Commissioning Board (Brand name NHS England), which made a passing reference to care.data on page 10.

There was a rather obtuse and confusing ASH consultation on data sharing which stressed it ‘wasn’t care.data’ yet included many of the same items, and were for purposes which included commissioning and risk stratification, ostensibly purposes of care.data. The whole thing was rather a mess. Aside from the data sharing aspects, it included whether the organisations would be State or commercially owned, and changes to consent and data sharing for people with learning disabilities.  It was really, far too wide ranging, and had a very short consultation period. Personally, I feel concerned other less defined organisations may now be made legally entitled to access our primary care records, ostensibly not under ‘care.data’ but for similar yet even more obtuse purposes.

[addition Sept 2nd after publishing - medConfidential has released an in-depth set of documents regarding secure data access design and the ASH on their blog > here]

Communications

Communications was and is repeated over and over, as the key flaw in the roll out. The doordrop junk mail was widely cited as a misjudged marketing campaign. I hope, through the above, to dispel that myth. Communications is the ‘how’ you tell people – in care.data it’s the ‘what, why, who and when’ which is missing as well. The Communications process cannot clearly inform if the substance of the message is in flux or unclear.

Have there been any national direct communications to citizens and patients from the Patients & Information Directorate at NHS England? Some online letters? Yes, from Mr. Kelsey here and here. “This is the first in a series of updates on care.data. I hope you will help shape it by giving your views on the care.data programme,” said his letter. None since then. The care.data advisory group notes are somewhat internal minutes for the public, but give us some idea of direction.

Local activities? Perhaps. There have been a couple of events posted online, such as was held via Healthwatch in Essex, but nothing in my own area. Some more accessible versions of the communications leaflet were released.

Have there been events open to the public to hear about care.data? Yes, but not widely promoted to individuals. The second hosted by the care.data advisory committee is coming up in London on September 6th: “This event is for health bodies and organisations representing a wider constituency perspective and will take place on Saturday 6 September in London from 10am to 2pm.”

The NHS England website states that,  at the beginning of August, we have taken part in over 150 local and regional events.” I know that I actively look out for any mention of events online, and I’ve been aware of about half a dozen, none of which has been in my county although it is included in the published list. I’ve asked at my local CCG, and neither they nor the NHS England Area Team are aware of any having been in West Sussex either. So, if these 150 events are taking place, it is not widely publicly communicated.

I attended the June 17th NHSE Open Day which included one hour on care.data.  I’ve not yet seen any follow up of the questions which were asked by others then, and I blogged about then, here. The feedback from that Open Day has yet to be published > here. The site states that all the care.data listening event feedback will be published ”later in the summer.” School’s back, summer’s over. Time for some of that feedback to be shared? I hope it’s soon, so that there is time for proper digestion, consultation and adaption before the pilot rollouts.

I’ve been to one public event which was primarily intended for charity group representatives,  and the HSCIC stakeholder event, which was not about care.data, but the review after the Partridge audit. All three of these events were advertised online as open to the public. I’ve asked my CCG about it at two meetings, and had no follow up and nothing from my GP practice at all.

The NHS England Board in July didn’t mention care.data at all.

If I’m actively looking to find out what is happening, and that’s all I find, what does the general public know?

I proposed two topics for NHS Citizen consideration: care.data [as did someone else as well] and genomics. Neither made the cut for public discussion. Where can these issues which will shape the NHS so fundamentally and touch every patient and citizen, get into mainstream discussion?

So far, because any gathered listening on care.data has been kept to the Patients & Information Directorate and not made public, we don’t know what has been actioned. But from my event attendance and online discussions, I think feedback is fairly consistent.  Summed up by what Mr.Kelsey asked the Open Day by a show of hands, how many feel confident they even know what care.data is? The answer was clearly, not enough.

The July care.data advisory group minutes state that a communications consultancy was about to be hired to review materials.

What will be interesting to see is how the communications materials are relaunched with new information. Simply repackaging what was there before won’t do. If there have been significant changes in content and process, as has been suggested are the successful results of the Partridge Review and Care Act, then they must be reflected in communications content. Just as the real concerns and questions received in the listening events over the last 6 months must also be addressed.

No one seems keen to tell us. The same questions have been batted about, for a year and a half now. From April 2013, the minutes are really worth reading again. The sharing for commercial cash flow was omitted in potential uses, but did flag concerns sharing ONS data with commercial intermediaries. The Partridge Review April 2014 since showed part of the extent to which the data mining of our health records was happening in the background. The desire to get access across to all health and social care data hints in 2013 at the unbound scope they still struggle to define today. Fast forward a year, and the project was put on pause.

Six months later, when will we find out what concrete improvements have been made in this pause? What are plans for the WHAT of Scope and its future change management, the WHO of Data Access and Sharing, the HOW of Governance & Oversight, Opt out management, Legislation, and the WHY Communication of the programme as a whole? And WHEN will any of this happen?

“This purpose is broad, and poorly defined. It needs to be better specified through the core values of the NHS to ensure that care.data makes the contribution that it is capable of to the future of the NHS.”

James Wilson, Discover Society, June 2014

Has the commercial exploitation of HES poisoned the care.data pool of data uses for everyone else who wants access to our NHS world leading data?

Have we lost sight of the most valuable purposes of data, and how to use it well, through the commercial drive for UK plc – purposes put ahead of research? Commissioning purposes and commercial mining are taking precedence over care and confidentiality.

Is the Patients & Information Directorate NHS England still going for gold in a world class model, is it sneaking up the back straight for a sprint finish, or is pulling out from the race?

**********

[1] Second delay to care.data rollout announced – The Guardian February 18th 2014: http://www.theguardian.com/society/2014/feb/18/nhs-delays-sharing-medical-records-care-data

[2] NHS England directions to HSCIC September 13th 2013: http://www.england.nhs.uk/wp-content/uploads/2013/09/item_5.pdf

[3] BMA vote for opt In system: http://www.bmj.com/content/348/bmj.g4284

[4] July 14th at Wellcome Trust event ‘Sharing Government Administrative Data: new research opportunities’

[5] EU Data Legislation http://www.esrc.ac.uk/_images/presentation%208_Beth%20Thompson%20Wellcome%20Trust_tcm8-31281.pdf

[6] DWP data linkage prrof of concept trial 6 year period of primary and secondary data, December 2013

[7] Developments in Access to DWP data 2014

[8] NHS data sharing – Dr.Lewis care.data July 2014 presentation

[9] Possible UK Legislation http://www.esrc.ac.uk/_images/Presentation_7_Rufus_Rottenberg_tcm8-31280.pdf

[10] Progress of the changes to be made at HSCIC recommendations of the Partridge Review https://medconfidential.org/wp-content/uploads/hscic/20140903-board/HSCIC140604di_Progress_on_Partridge_review.pdf

[11] Scope list p22 onwards: http://www.england.nhs.uk/wp-content/uploads/2013/08/cd-ces-tech-spec.pdf

[12] Health and Social Care Transparency Panel April 2013 minutes https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/259828/HSCTP_13-1-mins_23_Apr_13__NewTemp_.pdf

photo1

Non-human authors wanted. Drones, robots, and our relationship with technology.

“My relationship with the drone is like playing a video game: I feel out a composition and the drone will agree or challenge me. Eventually, though, the drone will develop a creative mind of its own.”  [KATSU, in interview with Mandi Keighran and N magazine, summer 2014].

KATSU, the New York City based artist/vandal/hacker depending on your point of view, raises the question in that interview for Norwegian Airlines’ magazine, of the relationship of “technology to graffiti,” or more broadly, of technology to art as a whole.

This, combined with another seemingly unrelated recent story, the David Salter macaque photo, made me wonder about drones, robots, and the role of the (non-)human author – our relationship with technology in art and beyond.

Ownership and Responsibility – Human or non-Human?

I wondered in both stories, how it may affect ownership and copyright. Rights, which led me to consider the boundaries of responsibility.

I should preface this by saying I know nothing much about copyright really. But I’m thinking my lay thoughts, out loud.

In the first instance, if drones are used for creating something, is it as simple as ‘he who owns the drone owns or is responsible for the art it creates’? I wonder, because I don’t know, and while it may be clear today, I wonder if it is changing?

As regards, the second story, when the monkey-selfie went around the world focus was sharper on copyright law, than it was in the majority of the photos the macaque had taken.  “Can a monkey own a picture?” asked many, including Metro at the time.

”Wikimedia, the non-profit organisation behind Wikipedia, has refused a photographer’s repeated requests to stop distributing his most famous shot for free – because a monkey pressed the shutter button and should own the copyright,” said the Telegraph.

But whilst most on social media and the press I read, focused on the outcome for this individual photographer, I wondered, what is the impact for the future of photography?

I’ve come to the conclusion, in this particular case I think it is more important we consider it less about the monkey having taken the photo, and more important that it was decided that a human, did not.

This decision was not (yet) decided by a UK court,  but was reached in Wikimedia’s own report.

Since then, the LA Times reported on August 21st, that:

“the public draft of the Compendium of U.S. Copyright Office Practices, Third Edition —was released this week[1], and, after final review, is to take effect in mid-December [2] — says the office will register only works that were created by human beings.”

This is the first major revision in over twenty years and is an internal manual, so it does not have the force of law.  But it’s still significant. Copyright suitability is dependent on that the work “was created by a human being,” and only protects “…the fruits of intellectual labor” which are “founded in the creative powers of the mind.” Animal ownership is expressly excluded. (Section 306 – The Human Authorship Requirement). Pantomimes performed by a machine or robot are similarly, expressly non-copyrightable. (p.527) and continues:

“Similarly the Office will not register works produced by a machine or mere mechanical process that operates randomly, or automatically without any creative input or intervention from a human author.” (p 55)

The Telegraph article {August 6th} by Matthew Sparkes, said:

‘In its report Wikimedia said that it “does not agree” that the photographer owns the copyright, but also that US law means that “non-human authors” do not have the right to automatic copyright of any photographs that they take.

“To claim copyright, the photographer would have had to make substantial contributions to the final image, and even then, they’d only have copyright for those alterations, not the underlying image. This means that there was no one on whom to bestow copyright, so the image falls into the public domain,” it said.’

One would think common sense would mean that without the work by British photographer David Slater, there would have been no photograph. That his travel, equipment preparations and interaction with the animals was ‘substantial contribution’.

I wonder, could this become a significant argument in the future of copyright and access to material in the public domain?  Because the argument came down NOT to whether a monkey can own copyright, but whether there was any human in which copyright was vested.

copyright

 

Photography is changing. Increasingly technology is being used to take pictures. If photographic copyright depends on human ownership, I wonder if the way is opened for claims to creative images produced by drone or other forms of AI? I don’t know, and copyright law, is best left to experts but I’d like to ask the questions I have. I’ve read UK and US legislation, around ownership, and around use of computers, but it could appear to an ordinary lay eye, that technology is evolving faster than the laws to govern it. Users and uses growing in hobby and commercial markets perhaps even more so.

In UK legislation:

“In this Part “author”, in relation to a work, means the person who creates it.”

“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” [Copyright, Designs and Patents Act 1988, Section 9]

It is easy to see how the macaque can slip through in UK law here, as it is not computer generated. And in the US non-human is clearly defined and excluded. But my question is  how do you define computer-generated? At what point does copyright depend on autonomy or on arrangements by human-intervention?

Remember, in the US, the Office will not register works produced by a machine or mere mechanical process that operates randomly, or automatically without any creative input or intervention from a human author.” (p 55)

“Katsu pilots the drone remotely, but every movement is translated through the machine’s need to keep itself aloft and it adapts his directions.”

Where do you draw the line?

Why does it matter today at all?

It matters because copyright law is a gatekeeper and gateway. It makes it commercially viable for creators to produce and make work available to others. It defines responsibilities. One question I ask, is that if it’s no longer worth it, will we be worse off for not having the work they may have otherwise produced?

The market for work produced by or via drone,  is just becoming to hint at becoming mainstream.

The use of drones in photography, for example in hard to reach situations in useful functions like flood mapping will be of great service. Other uses in sports such as alpine skiing, canoeing, or extreme sports is only likely to increase by amateur, professional and commercial users. Stick a go-pro on the drone and it can get footage from places without the need for an accompanying person.

What questions might it raise for artists & creators today?

Specifically on art and copyright:  will this ruling affect what types of images are worth taking? Will it make some work non-commercially viable, or their value determined by the channels of distribution rather than creator? Will this Wikimedia ruling affect the balance of power between creator and  commercial channel providers, in terms of ownership and distribution? I believe it rather serves to highlight where the balance is already.

Have we lessons learned from the music and book industry that apply here? (Clue: they both start with vowels and control distribution.)

Will the decision now go to a UK court and become a clarified legal position?

David Slater reportedly faces an estimated £10,000 legal bill to take the matter to court, said the Telegraph. At very best, this situation  is disrespectful to him and leaves a bitter aftermath, in the question of the power between artist and distributor. At worst, we could be on the cusp of being left behind in a brave new world of ownership and control of art and knowledge. A world in which actions may be taken through our technology, the product of which no human is deemed to have ownership.

So how does that affect responsibility?

If it has been legally defined, that there is no human copyright ownership for the product of the action by something non-human, where do you draw the line for human responsibility? Am I not responsible for the actions of anything non-human I own? If an animal I own, creates a road traffic accident, am I responsible for its actions? If so, then why not for artwork it creates? If there are differences, why are there differences, and where does the line of responsibility get defined and by whom?

Where are the boundaries of responsibility if we start to distinguish in law between ownership of the result of a task a human set up, but did not carry out? David Slater enabled everything for the photograph to be taken, but did not press the shutter.

I ask: “is the boundary of responsibility undermined by weakening the boundaries of ownership and definition of autonomy of action?”

I believe copyright, ownership, responsibility and non-human authorship is about more than this man vs macaque debate. Will we leave it at that and learn no more from this? If so, then the real monkey is definitely not the one in the picture.

What about considering wider impacts?

In broader context, I believe the public should be asking questions to stay ahead of the game in terms of all legal rulings, and consider carefully the idea of non-human creation and ownership. We should  ensure that both State and commercial uses of drone are not set in place, from which we need to play catch up later. We should be driving the thinking to help shape the society we want to see, and shape the expectations of commercial and State use of drone technology.

What of the drones we cannot see, never hear and yet seem to be supported by our Governments? State surveillance piggybacks commercial infrastructures and tools in other fields, such as communications and social media. We should stay ahead of how drones are increasingly used commercially (as in Amazon pilot news) and we should demand much greater transparency of the existing drone use in our name, in security, surveillance and weaponry. [ added 29 Aug 2014 > also see BT case in CW investigation].

Who controls government decisions and the ethics of drone or robot use? In all of these questions, it comes down to – who’s in a position of power? With power, comes responsibility.

The ethics in use in war zones and in other military action, seen and unseen, is also something we should be asking to understand. To date, much of the public dismisses drone use as something which happens somewhere else and nothing to do with us.

But these decisions do affect what is done in the name of our country and that does indirectly, reflect on us, as its citizens.  These decisions will shape the future commercial uses which will affect us as direct consumers, or as indirect recipients of their impacts on wider society.

There’s lots to think about, as drones develop into tools of art and applications in daily life. I know little of the legal aspects, what has been done already or is being considered today, or what will be in future. I just know, I have lots of questions as an everyday parent, considering what kind of society I hope my children, our future adult citizens, will inherit.  Where do I ask to find out?  My questions are not so much about the technology or law of it, at all. But they come down to its ethics, fairness & how this will shape the future.

Will we see drones soon in ordinary life or in an everyday future?

In this Wired article, Karl VanHemert states part of Katsu’s aim with the drone is simply to raise questions about the transformative effect the machines might have on art. He plans for it to be Open Source soon. Some argue that tagging is not art, but vandalism. You can see it in action via Motherboard’s video on YouTube here. Suggesting property marking will become a blight on society, you can ask what purpose does it serve? Others suggest drones could be used precisely to paint over graffiti and be of practical uses.

In Scotland it is a well known joke,  that once the painters have finished repainting from one side of the Forth Road Bridge to the other, it’s time for them to start again. Perhaps, those days are over?

Will we see them soon in everyday occupations, and will it make a difference to the average citizen? In commercial service, the mundane estate agent [no offence to those who are, you may be 007 or M in your spare time I know] is reported to be one of the commercial market sectors looking at applications of the photographic potential. It could replace cameras on long poles.

“Unmanned drones can be used for a range of tasks including surveying repairs and capturing particularly good views from unusual angles. ” [Skip Walker, stroudnewsandjournal.co.uk]

These uses are regulated in the UK and must have permission from the CAA.

So far though, I wonder if anyone I’ve met flying a hobby drone with camera over our heads (veering wildly between tent pitches, and enthralling us all, watching it watching us) has requested permission as in point 2?

Regulation will no doubt become widely argued for and against in the public security and privacy debate, rightly or wrongly. With associated risks and benefits, they have the potential to be of public service, entertainment and have uses which we have not yet seen.  How far off is the jedi training remote game? How far off is the security training remote, which is not a game? How is it to be governed?

But I have a niggling feeling that as long as State use of drones is less than fully transparent, the Government will not be in a rush to open the debate on the private and commercial uses.

Where does that leave my questions for my kids’ future?

Where is the future boundary in their use and who will set it?

The ethics of this ‘thinking’ technology in these everyday places must be considered today, because tomorrow you may walk into a retirement home and find a robot playing chess with your relative. How would you feel about the same robot, running their bath?

Have you met Bob – the G4S robot in Birmingham – yet?

“While ‘Bob’ carries out his duties, he will also be gathering information about his surroundings and learning about how the environment changes over time”

“A similar robot, called ‘Werner’, will be deployed in a care home environment in Austria.”

How about robots in the home, which can read and ‘learn’ from your emotions?

I think this seemingly silly monkey-selfie case, though clearly anything but for the livelihood of David Slater, should raise a whole raft of questions, that ordinary folk like me should be asking of our experts and politicians.  Perhaps I am wrong, and the non-human author as animal and non-human author as machine are clearly distinct and laid out already in legislation. But as the Compendium of U.S. Copyright Office Practices [open for comment see footnote 2] decision shows, at minimum the macaque-selfie shoot, is not yet done in its repercussions. It goes beyond authorship.

Who decides what is creative input and intervention vs automatic or autonomous action? Where do you draw the line at non-human? Does Bob – the G4S robot in Birmingham – count?

We may be far off yet, from AI that is legally considered ‘making its own decisions’, but when we get to the point where the owner of the equipment used has no influence, no intervention, of what, when or where an image is shot, will we be at the point where there is, no human author? Will we be at the point where there is no owner responsible for the action?

Especially, if in the words of Katsu,

“Eventually…the drone will develop a creative mind of its own.”

What may that mean for the responsibilities of drones & robots as security patrols, or as care workers? Is the boundary of responsibility undermined by weakening the boundaries of copyright, of ownership and autonomy of action? If so, photographs being shot without a legally responsible owner, is the least of my worries.

****

[1] Significant files ref: http://infojustice.org/archives/33164  Compendium of US Copyright Office practices – 3rd edition > full version: http://copyright.gov/comp3/docs/compendium-full.pdf

[2] Members of the public may provide feedback on the Compendium at any time before or after the Third Edition goes into effect. See www.copyright.gov/comp3/ for more information.

 

 

The big sleep

“You just put your lips together and blow.” RIP Lauren Bacall

Film fans around the world will feel another loss today, as the death of Lauren Bacall was announced.

The Huffington Post:

“Lauren Bacall, one of the last stars of Hollywood’s Golden Age, has died. [..}

… it was for her four films alongside Humphrey Bogart for which she will be best remembered.

Bacall married Bogart in 1945, the couple going on to have two children, a son and a daughter. The pair remained together until his death in 1957. After Bogart’s death, Bacall married actor Jason Robards Jr, to whom she had a further son.”

Anyone who knows me, knows how much I love classic films. I enjoy their pace, artistry and use of language which is often so different in contemporary film making. I am a fan of the forties style. I also love the audacity and spirit of fun which is portrayed in that era of Hollywood leading ladies.

Lauren Bacall’s screen glamour and quintessential attitude will forever be immortalised in lines from To Have and Have Not, the film in which she met Bogart.

“You know how to whistle, don’t you, Steve? You just put your lips together and blow.”

The idea of a woman capable of something a man was not or that she could be his equal, was slightly tongue in cheek, but in fact a critical component of the development in society at the time. In the Second World War, notions of what women could and could not do were tossed aside, as women whether in the workplace in manufacturing or agriculture, replaced their men at war. Clothes and looks, and attitudes to sexuality and marriage, were changing. Post-war there was turmoil as roles were realigned. Some of this was reflected in film of the era, women were often dutiful housewives or dangerous femmes fatales. Bacall straddled both in real life and on screen.

Attitudes to women’s role in society and post-suffragism politics were changing. Bacall played an active role here. During the late 1940s, together with Bogart and others, she set up the Committee for the First Amendment. It was, widely noted as naive, an attempt to stand up to the attacks on Hollywood by the House of Un-American Activities Committee (HUAC), to defend free speech and political rights.  Much as one would see the Blacklist thirty years later portrayed in The Way We Were [1973] by Barbra Streisand.

Lauren Bacall saw much change in views towards women in society in her lifetime. But that passing line, in her breakthrough film points to one small, insignificant thing which does not seem that much changed, then or now. I find it can still be seen as mildly inappropriate or surprising by some today. A woman whistling in public. Not a wolf whistle, diet-soda-would-be-proud-at-that-misfired-act-of-equality style whistle. But a tune. A rip roaring rousing melody.

Some of the most simple things in life, bring the most pleasure.

Today it is rare that I meet another women who likes to whistle, at all, never mind as much as I do. When in towns in pedestrian underpasses, in deserted London Underground tunnels or in the car. Wherever I can get a good acoustic. But occasionally I’ll forget to stop if someone should unexpectedly stumble into the soundwaves. And quizzical glances, little smiles, half comments reveal, it’s maybe a little less usual. But perhaps we should celebrate simplicity more often. It’s fun to whistle, as it is to sing. And perhaps it’s OK to be a little different, a characteristic Director Howard Hawkes who discovered Bacall, sought out. And strove to preserve.

It was her film acting which made her name and found her leading man in all senses. For Lauren Bacall, Bogart was the love of her life. My favourite of their films, The Big Sleep, will no doubt be the source of headlines today.

Whist she also worked on Broadway in musicals, gaining Tony Awards for Applause in 1970 and Woman of the Year in 1981 it was her performance in the film, the The Mirror Has Two Faces which earned her a Golden Globe Award and an Academy Award nomination. In 2009 she received an Honorary Oscar “in recognition of her central place in the Golden Age of motion pictures.”

Amongst her own achievements, it may be she will be best remembered for what she shared together in the classic black and white era with Bogart, part of the glamorous couple. She hoped that she would be remembered more for herself.  For me,  she was unique, distinct and different in film noir. It’s her independent, grown up sassiness for which I’ll remember her on screen, and the glimpses into her strength of character I admired in real life.


“You know how to whistle, don’t you, Steve? You just put your lips together and blow.”

Thinking to some purpose