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Sharing medical records with researchers: Assumed consent works in theory – just not yet in practice

(2021/10/14)


Register Debate Welcome to the latest Register Debate in which writers and experts go head to head on technology topics, and you – the reader – choose the winning argument. The format is simple: we propose a motion, the arguments for the motion will run this Monday and Wednesday, and the arguments against on Tuesday and Thursday.

During the week you can cast your vote on which side you support using the poll embedded below, choosing whether you're in favour or against the motion. The final score will be announced on Friday, revealing whether the for or against argument was most popular. It's up to our writers to convince you to vote for their side.

This week’s motion is: [1]Assumed consent is the right approach for sharing healthcare patients’ data, beyond their direct care . Or to put it another way: patient records should be shared with medical researchers on an opt-out basis.

[2]

The debate around the benefits of sharing medical data for the greater good versus individual’s expectations of confidentiality and consent, has become heated to say the least over the last year and a half. But if consent is not just assumed, but informed, do we all stand to benefit? Our contributors serve up their own prescriptions, but you get to decide.

[3]

[4]

Arguing AGAINST THE MOTION today is Joe Fay, who has written about the technology business for 30 years and has edited publications in London and San Francisco.

There are undoubted theoretical benefits to the massive aggregation of health data to enable research into public health in general and new or rare conditions in particular. Collectivist countries such as Germany and Singapore are seen as having better served their citizens during the pandemic than more individualistic societies such as the US, Brazil, or the UK.

[5]

This surely strengthens the argument in favour of assumed consent, its proponents would argue. But individual choice matters, and MedConfidential’s Phil Booth eloquently [6]demonstrated earlier this week why the use of data must be consensual, safe and transparent. And, crucially, informed. So, the NHS in England could, arguably should, demonstrate the benefits of an assumed consent approach with its General Practice Data for Planning and Research (GPDPR) programme, unkindly dubbed the “great GP data grab.”

As apparently the largest non-military organisation in the world, what the NHS does sets an example for healthcare systems around the planet. In the case of the latest NHS effort, citizens are reassured that the data will be pseudonymised, with unique codes replacing key identifying data. NHS Digital will be “able to use the software to convert the unique codes back to data that could directly identify patients in certain circumstances, and where there is a valid legal reason.”

The NHS hasn’t 'informed' us exactly how the protections around its vast data store will be an insurmountable challenge for the cyber criminal community

The problem is that many in tech land will think that, smart as the folks in NHS Digital are, there will be other less scrupulous parties out there who will be smarter, and more numerous. The NHS hasn’t “informed” us exactly how the protections around its vast data store will be an insurmountable challenge for the cyber criminal community.

Likewise, NHS Digital’s insistence that when it comes to commercial organisations, sharing would be restricted to partners with a “legal basis and legitimate need” is less than reassuring. It lists just three examples of the sort of organisations that might get access, while simply saying insurance companies won’t, leaving much open to interpretation. And the fact is that the context and interpretations change over time.

Technologies change. Policies change. And governments change too – which is why the Taliban now has its very own biometric database of people who worked with the previous US-backed government. One thing remains constant though. Companies that style themselves as digital disrupters and AI pioneers will really want to get their hands on the NHS’s treasure trove of data. Sorry, OUR data.

[7]

And on past performance, these same disruptors have an alarming tendency to operate a few steps ahead of policy makers and regulators. So, there are many reasons why the public might feel less than assured about assumed consent in general, and the GPDPR program specifically.

But the main reason citizens won’t be assured is because so many of them are [8]largely unaware the GPDPR program even exists. By launching the programme in the midst of a pandemic, when GPs are already overstretched and their surgeries are off limits for many patients, the government has virtually guaranteed deep scepticism about the plan – and by extension, about the whole notion of assumed consent.

There may be a point at which it really does make sense for assumed – but also informed – consent to be the default model for sharing medical data. But we’re not going to reach that point until clinicians, researchers, and citizens can agree a reasonable framework for delivering such a system, and a transparent way of informing citizens. In the UK, we’ve seen no such thing. Unfortunately, polls don’t lend themselves to “not yet” answers. So, by default, the answer to this proposal is NO. ®

Cast your vote below. We'll close the poll on Thursday night and publish the final result on Friday. You can track the [9]debate's progress here .

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Get our [10]Tech Resources



[1] https://www.theregister.com/Debates/2021/10/11/assumed_consent/

[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/science&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2YWhUNEjoBJr5kK5vAX64jgAAAFY&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0

[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/science&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YWhUNEjoBJr5kK5vAX64jgAAAFY&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0

[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/science&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YWhUNEjoBJr5kK5vAX64jgAAAFY&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0

[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/science&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44YWhUNEjoBJr5kK5vAX64jgAAAFY&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0

[6] https://www.theregister.co.uk/2021/10/12/healthcare_privacy_debate_against1_tuesday

[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_offbeat/science&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YWhUNEjoBJr5kK5vAX64jgAAAFY&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0

[8] https://www.theregister.com/2021/07/29/which_gpdpr_survey/

[9] https://www.theregister.com/Debates/2021/10/11/assumed_consent/

[10] https://whitepapers.theregister.com/



"There may be a point at which it really does make sense" Really?

Mike 137

" There may be a point at which it really does make sense for assumed – but also informed – consent to be the default model for sharing medical data "

It's not sufficient (and never will be) to merely be informed that some person or agency is doing something you disapprove of or wish to resist. If there is no choice, there are no rights.

There are typically two alternative data sharing scenarios. Either a proposal is so draconian that a majority will want to opt out, whereupon it shouldn't be implemented, or only a small minority will want to opt out, whereupon loss of that data should not seriously affect statistical results. In either case there's no justification for sidestepping personal choice.

What policy makers tend to forget is that every issue is multi-facetted. Focusing on an apparent advantage of one aspect commonly leads to unexpected adverse consequences. But those consequences rarely affect the policy makers directly, so they are frequently ignored.

Re: "There may be a point at which it really does make sense" Really?

Pseudononymous Coward

>What policy makers tend to forget is that every issue is multi-facetted.

I don't think our dear leaders forget issues are multifaceted, I think they just like to steam roller over any contrary views to get whatever outcome they have want.

Re: "There may be a point at which it really does make sense" Really?

Evil Scot

Our Dear Leaders are multifaceted.

(Two = Multi)

Category mistake

Pseudononymous Coward

Why is Germany described as a "collectivist country" and Brazil as an "individualistic country" in the opening paragraph?

The "individualism" bar chart [1]here shows UK and Germany as countries scoring highly in individualism, and Singapore and Brazil substantially lower.

"Brazil has a score of 38 which means that in this country people from birth onwards are integrated into strong, cohesive groups (especially represented by the extended family; including uncles, aunts, grandparents and cousins) which continues protecting its members in exchange for loyalty."

[1] https://www.hofstede-insights.com/country-comparison/brazil,germany,singapore,the-uk/

Re: Category mistake

MiguelC

I would say that Germans (and Singaporeans) have greater trust in their government's decisions than UK or Brazilian folks. With good reason.

smart as the folks in NHS Digital are

Chris G

There may well be smart people in NHS Digital but I am fairly sure none of them are policy makers, or even listened to.

Relying on a huge organisation like the NHS to safeguard anonymised data that is reversible when they can't even develop and operate an acceptable track and trace system regardless off vast sums of money and hordes of consultants tells me I couldn't trust them at all.

Re: smart as the folks in NHS Digital are

Nunyabiznes

I'm sure there are some pretty smart people who are policy makers at NHS Digital. They just also happen to be unscrupulous bast*rds.

Don't fall into the trap that people who we disagree with are stupid.

Eels

elsergiovolador

These scientists wriggle like eels to get big pharma filthy hands on our data.

Gaslighting, defying logic and blinded by its own greed and self-importance.

How people can respect scientific community when they lost touch with what they are for?

The position of authority will only work for so long, once it wears off, the "I am a scientist" is going to mean nothing.

Take no notice of patient opt-out

dogcatcher

Years ago I opted out of having my medical records shared beyond the local surgery. Recently I find that the hospital, the duty doctor that 111 put me in touch with, all have access to my medical records, they can read my prescriptions, tell me the results of blood tests, etc. So much NHS regard for patient opt-out.

I was wrong to have opted out, for the local sharing of information is very much to my advantage. However, this shows how poor and meaningless privacy is to the NHS and our choice matters not a fig to them.

Re: Take no notice of patient opt-out

yetanotheraoc

"our choice matters not a fig to them"

Which is better if you are the government?

A. Create an opt-out system, and enroll the ones who choose to opt-out. Or ...

B. Create an opt-in system, and enroll the ones who did not choose to opt-in.

I say "A" is clearly better for the government, because they can claim the optee missed a step, or missed a deadline, or it was a clerical error, or whatever. Whereas in "B" the only possible reasons are government incompetence or government malfeasance.

"Unfortunately, polls don’t lend themselves to “not yet” answers."

Citizen of Nowhere

Difficult (for me at least) to fathom how someone who specifically points out the potentially lethal results of data of/about Afghanis collected under the previous regime falling into the hands of the Taliban and still comes the conclusion "Not Yet" rather than "Not Ever" in answer to the question being polled.

It's not YOUR data to decide

Anonymous Coward

You made a sort of half assed fake counter argument there, Joe, a sort of "sure its great but". Oh fook off, transparently false attempt to argue this.

The plan: take "aggregate" data, build outcome models from that data, the models overrule the doctors decision, NHS saves money by not paying for expensive procedures that the model says it doesn't need to pay for, even if the doctor says it does.

The problems:

They'll just end up paying data modellers like Palantir instead.

The doctor knows better than generic model, second guessing doctors prior decisions.

That data gets used for uses it was never intended for. Stuff like: "Why should insurance company cover people living unhealthy lives? [+play one person off against another], they get the data anyway, lets pass identifiers, but just for this particular case and not for other cases....".

Stuff like "wouldn't it be great if the police had a list of everyone who might be a drug user, we have that data anyway, its just another query, and the police can already RIPA query that database anyway, so lets make it official".

Stuff like, "if we cancel this health policy, how many people of [opposition demographic] do we kill?". The analysis the Republicans were running when trying to cancel Obamacare and keep all the Republicans on board. Hey, sure we kill 60,000 but they're mostly Democrats, here, look at our data models.

Stuff that causes the basic purpose of healthcare to be subverted from caring for health, and instead becomes about what gains [group] can get from mining that PRIVATE DATA.

Germany, you've never experienced German healthcare clearly, it's expensive and fragmented, and try to get a cancer specialist and you run around one polyclinic to another to get the bits and pieces of healthcare needed. A clinic here for the CT scan, a clinic there for the cancer specialist, a clinic for the medicine, run run run. Chase chase chase.

Germany life expectancy, 81.57 years, UK 81.52 years, no difference. All that extra money (and you claim data) makes no difference.

If German aggregate data is so useful, WHY NOT USE THAT? They are a similar european demographic complete with a Lidl food diet and similar health care. If *anonymous* aggregate data is so useful, then a similar *anonymous* dataset will be fine. Germany: insanely overpriced, inefficient system, overfunded by taxes. The taxes are so high, 50% of the people cannot afford to move out from their mothers home. Clearly an out of balance economy there.

Singapore, you get that its 50% subsidy for a kids visit and yet still hundreds of dollars, for something as trivial as a pulled elbow? Or you can live with the pulled elbow if you cannot afford it. They have nothing, nobody goes to Singapore for their hospital treatments, they head to Thailand. Singapore: all smoke and mirrors hyper inflated economy, pretends to be hi-tech run by data and robots and is actually run by cheap labour from neighboring Asian countries. Why not just say, you're data driven and run by robots and import Polish labor like before, if you want the smoke and mirrors economy?

You hold up two of the crappiest overpriced systems available as models to be pursued.

UK has a Pharma industry because it has NHS and a stable marketplace. If you strip billions from NHS, you will lose your Pharma industry.

It's private data, you do not get to argue the pros and cons of accessing people's private data, without them being in the argument. THEY decide on a case by case basis whether YOU can use THEIR private data.

Opt in, or undermine healthcare.

Is that right?

steelpillow

"Collectivist countries such as Germany and Singapore are seen as having better served their citizens during the pandemic than more individualistic societies such as the US, Brazil, or the UK."

Really? let's spin that the other way:

Individualistic societies such as New Zealand and Israel are seen as having better served their citizens during the pandemic than more collectivist countries such as Russia and North Korea."

So really, mate, there wasn't even a straw argument for you to knock down. Kudos for knocking it down anyway, though.

I myself have dreamed up a structure intermediate between Dyson spheres
and planets. Build a ring 93 million miles in radius -- one Earth orbit
-- around the sun. If we have the mass of Jupiter to work with, and if
we make it a thousand miles wide, we get a thickness of about a thousand
feet for the base.

And it has advantages. The Ringworld will be much sturdier than a Dyson
sphere. We can spin it on its axis for gravity. A rotation speed of 770
m/s will give us a gravity of one Earth normal. We wouldn't even need to
roof it over. Place walls one thousand miles high at each edge, facing the
sun. Very little air will leak over the edges.

Lord knows the thing is roomy enough. With three million times the surface
area of the Earth, it will be some time before anyone complains of the
crowding.
-- Larry Niven, "Ringworld"