Section 60 of the Health and Social Care Act 2001 as re-enacted by Section 251 of the NHS Act 2006 allows the Secretary of State for Health to make regulations to set aside the common law duty of confidentiality for defined medical purposes.
The Regulations that enable this power are called the Health Service (Control of Patient Information) Regulations 2002. Any references to ‘section 251 support or approval’ actually refers to approval given under the authority of the Regulations.
The HRA took on responsibility for Section 251 in April 2013, establishing the Confidentiality Advisory Group (CAG) function.
Why was Section 251 created?
Section 251 came about because it was recognised that there were essential activities of the NHS, and important medical research, that required the use of identifiable patient information – but, because patient consent had not been obtained to use people’s personal and confidential information for these other purposes, there was no secure basis in law for these uses.
Section 251 was established to enable the common law duty of confidentiality to be overridden to enable disclosure of confidential patient information for medical purposes, where it was not possible to use anonymised information and where seeking consent was not practical, having regard to the cost and technology available.