NHS England has received legal advice which says surgeons cannot block publication of their performance data, HSJ has been told.

HSJ was told the organisation, and the body overseeing information publication, have now received conflicting advice on the controversial issue.

NHS England is seeking to publish information comparing outcomes of consultant-led surgical teams, in a high profile transparency initiative.

It has been reported this month that individuals could block their data being published under data protection law.

Well placed sources told HSJ the NHS had received three different legal opinions on the matter, two to NHS England and one to the Healthcare Quality Improvement Partnership, the organisation leading on producing the performance information.

Two of the legal opinions, one to NHS England and one to HQIP, said doctors could withhold their data. However one opinion, which is more recent advice to NHS England, said the information could be published without individuals’ consent.

A senior source involved in the process told HSJ: “The [new] legal advice is that the public interest supersedes [the right of doctors to protect their personal data]. We are in discussions with lawyers and various other people about what’s right and what’s legal.”

NHS England is understood to now be seeking to establish a sound legal footing for the plans with the performance data due to be published in July. 

A NHS England spokeswoman said: “NHS England, along with our partners at the Healthcare Quality Improvement Partnership, is continuing to take legal advice regarding data protection, and we are confident that a solution will be found which allows all consultants’ outcome data to be made public.”