The NHS has been accused of “breaking the law” by creating a massive data platform that will share information about patients.
Four organisations are bringing a lawsuit against NHS England claiming that there is no legal basis for its setting up of the Federated Data Platform (FDP). They plan to seek a judicial review of its decision.
NHS England sparked controversy last week when it handed the £330m contract to establish and operate the FDP for seven years from next spring to Palantir, the US spytech company.
The platform involves software that will allow health service trusts and also integrated care systems, or regional groupings of trusts, to share information much more easily in order to improve care.
NHS England says the platform will help hospitals tackle the 7.8m-strong backlog of care they are facing and enable them to discharge sooner patients who are medically fit to leave.
But this may be the first in a series of legal actions prompted by fears that the FDP could lead to breaches of sensitive patient health information, and to data ultimately being sold.
Rosa Curling, director of Foxglove, a campaign group that monitors big tech and which is co-ordinating the lawsuit, said: “The government has gambled £330m on overhauling how NHS data is handled but bizarrely seems to have left off the bit where they make sure their system is lawful.
“You can’t just massively expand access to confidential patient data without making sure you also follow the law.”
Ministers must get parliamentary approval for the FDP before it proceeds, in order for it to be lawful, she added. “Government must go back to parliament to set proper rules for the sharing of data in this system. Until they do they’re breaking the law. Until they are crystal clear about how they will honour patients’ right to opt out, they are on a crash course with the public.”
Lawyers acting for Foxglove, the Doctors’ Association UK, National Pensioners’ Convention, and the patient organisation Just Treatment, have sent a pre-action letter to DAC Beachcroft, the firm of solicitors which NHS England has retained to handle legal matters involving the platform.
Unless the NHS can satisfy them in its reply that it does have the legal powers to set up the FDP, the four groups will ask the high court to launch a judicial review of the lawfulness of NHS England’s decision to do so.
Hope Worsdale, a Just Treatment spokesperson, said: “The trust that is vital to good patient care and the whole of the health system is being trashed by the government’s strategy to force this through.”
Ministers had failed to take, or had deliberately avoided taking, the steps needed “to give the FDP a sound legal footing as it would have involved them being held to some public account for the transformative changes it will unleash on our health data”, Worsdale added.
NHS England dismissed the four organisations’ concerns as “totally incorrect” and insisted that it did have the legal authority to press ahead.
An NHS spokesperson said: “This letter fundamentally misunderstands how the Federated Data Platform will operate and is totally incorrect in both matters of law and fact. The platform will use only existing data legally collected by the NHS to support direct patient care, which is lawful under all relevant data protection regulations.”
The Guardian approached the Department of Health and Social Care for a response.
