The Department of Health is considering changing the law to give trusts power to use patient identifiable data for uses not directly relating to patient care, HSJ has discovered.

Commissioners have privately complained they are still uncertain how they can carry out tasks such as checking invoices from providers with whom they have no contract.

The department is known to be considering new legislation as part of its response to the Caldicott review of information governance in the NHS.

Senior sources have told HSJ legislation is required to solve the problem with invoices. The issue affects payments for services where a patient is taken ill in a different part of the country to their home, and the commissioner has no contract with the provider who treats them.

It also affects mental health services where patients are in full time care with a specialist provider outside their home area.

NHS England told HSJ it is currently working on guidance around this issue. The DH indicated it was considering changing the law to solve this issue, and a range of others that have arisen since the implementation of the Health and Social Care Act.

Guidance on “risk stratification”, published by NHS England in June, is intended to set out how commissioners can use health and social care data to assess which members of their local population are most at risk of hospital admission.

However, confidentiality rules state commissioners are not allowed to know the identity of these individuals. Under NHS England’s guidance, the information must be decoded by a clinician with a relationship to the patient, rather than a commissioner.

Sir John Oldham, who promoted the use risk stratification to enable integrated health and social care in his role as one of the national leads of the quality, innovation, productivity and prevention, said NHS England’s guidance was “impractical”.

“It pulls the rug out from under integrated care pioneers”, he told HSJ. “They’re going to have to change it.”

Portsmouth CCG, meanwhile, has described local difficulties around the use of cancer waits data for 2013-14. NHS South CSU’s access to the information “is still being discussed”, the CCG’s May board papers said. “It is not clear at this stage a resolution is expected to be achieved.”

One senior commissioning figure said the DH had “no choice but to change the law”.

Another sector leader told HSJ: “We’re acutely aware of the challenge presented by the new legal framework. I would anticipate some future legislation to clarify matters.”

Out of area payments

“Out of area” payments account for between five and 10 per cent of many clinical commissioning groups’ incomes. But the current legal situation does not allow them or their support service providers to check how the money is being spent, as this would involve the use of identifiable data for purposes other than direct patient care.

The issue has arisen following the full implementation of the Health and Social Care Act at the beginning of April. While primary care trusts had legal permissions to handle sensitive patient data, these did not transfer to clinical commissioning groups, commissioning support units or NHS England.

Stop gap powers to enable NHS commissioners to handle patient identifiable data from the secondary uses service expire in October.