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GPs could opt all patients out of opt under data protection laws, information office says

GPs could opt all their patients out of if they have not had time or resources available to inform their patients, the Information Commissioner’s Office has said in its strongest statement on the issue so far.

The official body has said that GPs could argue that allowing patients to be opted in to the Government’s record sharing scheme would leave them unable to comply with their responsibility under the Data Protection Act to fully inform patients about what is happening with their data.

But it added that GPs would still have to notify all patients about the scheme, and why they had been opted out, as well as explaining how to opt back in, while GPs could still face a breach of their obligation to share data under the Health and Social Care Act.

The ICO also criticised NHS England and the Health and Social Information Centre for continued failure to provide clear information on what data will be used for and whether patient opt outs will be honoured.

NHS England has warned GPs that they are compelled to share data under the terms of the HSCA.

However, GP groups have pointed out that this conflicts with their duties under the Data Protection Act, while Pulse reported that some GPs opted all their patients out of the scheme over fears around these conflicting responsibilities.

The ICO has previously said that GPs could be in breach of the DPA if a patient complained they had not been properly informed of the extractions due to happen under

But Dawn Monaghan, the ICO’s public services strategic liaison group manager told delegates at the Emis National User Group conference in Nottingham last week that GPs could use the DPA as an argument for opting all patients out of

She said :‘Technically they could, technically there’s nothing in the DPA to stop them doing that…a GP could argue that there is not enough time to make it clear to patients, so they didn’t do it.’

She later told Pulse: ‘If GPs choose to opt out all of their patients, then that is an issue for them and NHS England – the Data Protection Act does not prevent it. However, the Data Protection Act would still require patients to be given a full explanation of the options open to them, and why the GP has chosen to opt them out.’

The scheme was delayed in February, days before it was due to roll out nationally, to build ‘patient understanding’, the scheme has yet to restart and NHS England have said they will not set ‘artificial’ deadlines’ – though a pilot in 100-500 ‘pathfinder’ practices has been announced.

Prior to the delay Pulse revealed that Dr Gordon Gancz, an Oxford GP who decided to opt all of his patients out of because of the lack of information being provided to them, had his contract threatened by NHS England.