Data protection legislation: interpretation and barriers to research

Research has been described as “a powerful means of achieving” the objectives of the Department of Health, namely “to improve the health and well-being of the population and to secure high quality care.”1 There is, however, a need to find a balance between facilitating important research and protecting the confidentiality of patients. As the capabilities of information technology grow, legal frameworks and professional guidance need to be created or refined to safeguard the rights of patients.

Some areas of the common law duty of confidentiality and the new Data Protection Act 1998 (box, p 891), which constitutes the United Kingdom's implementation of the relevant European Union directive,2 are causing difficulties of interpretation within the NHS. With few exceptions, broad debate about the implications of the new act is lacking, particularly in the context of epidemiological research that uses patients' records.6-8 Questions of consent, anonymisation of data for research, and access to medical notes for research purposes (rather than audit) have been addressed in a range of literature.9-13 Some of these documents are being updated; this may indicate that there are uncertainties about the legal issues involved in implementing the act. Local variations in interpretation may cause particular difficulties for researchers conducting multicentre epidemiological studies, as the case study that will be described in this article shows.

In the meantime, those who must make decisions about confidentiality are still confused. This confusion exists for several reasons. Firstly, there is the interpretation of the act (and to an extent the common law duty of confidentiality). The interpretation is subject to debate, and no case law exists which might clarify the interpretation. Secondly, there is a dearth of up to date and clear policy guidance. Thirdly, the new system of “Caldicott guardians” (box) is untried, and guardians as well …