Course Round Up: The Whys and Hows of applying to the Public Benefit and Privacy Panel for Health and Social Care (PBPP)
Date of course: Wednesday 11 March 2020 Organised by: Wellcome Trust Clinical Research Facility Post summary: In this post I provide a run through of the course: The Whys and Hows of applying to the Public Benefit and Privacy Panel for Health and Social Care (PBPP). As the title suggests, the course – delivered by PBPP Manager Dr Marian Aldhous – covered two main areas: Why would you need to apply to the PBPP and how would you go about doing this. My thanks go to Marian, who has kindly let me use her slides to write this post.
In a rush? Check skip to the Top Tips for filling in your application and some of my reflections on the course (where you will also find links to an example Tooth fairy PBPP and associated documents!).
PBPP is a combination of a patient privacy panel and an information governance panel. They were set up by the Scottish Government eHealth to provide a single, consistent, open and transparent scrutiny process for health data to be used for different purposes, including research.
They exist to ensure the right balance between safeguarding the privacy of people in Scotland and the duty of Scottish public bodies to make the best use of data. PBPP provide leadership in the complex privacy and information governance domains so that:
Scottish people gain the benefits from the use of data
Emerging information risks are managed
Public concerns around privacy are addressed
Protection of privacy in the public interest is promoted
They have a scrutiny role on behalf of patients with respect to the information you are going to find out about the patient, in work that is not related to their direct care and information not in the public domain. They seek to check if the use of the data is justified, reasonable and will it achieve its purpose. Further, they want to scrutinise how damaging it would be if the information was leaked.
They are there to ensure that applicants have considered the public benefits and privacy implications for participants and their data. Moreover, they are there to provide assurance of the ‘technical and organisational arrangements’ to ensure respect for the data minimisation principle (GDPR Article 89(1)).
What was really clear from Marian’s presentation on the role of PBPP was that they are not there to trip applicants up or to prevent work from going ahead.
2. What is the legislation and principles covering aspects of information governance for the use of NHS Scotland data for purposes other than direct care?
The UK Data Protection Act 2018 applies when processing (that basically means using or storing) personal data for living individuals, this includes pseudononymous data.
For personal data
For the lawful processing of personal data we look to Article 6(1) of the GDPR which states that the processing of personal data is lawful only if and to the extent that at least one of the following apply:
a) The subject has consented b) Performance of contract c) Compliance with legal obligation (under specific legislation) d) Protection of vital interests i.e. to save someone’s life e) Performance of a task that is in the public interest f) Legitimate interests of controller
Point (e) is the most common legal basis used for the processing of personal data given in PBPP. Note that there are very good reasons why the others are NOT used. Specifically, consent for taking part in research, under the Research Governance Framework, is different from consent obtained for processing data under GDPR. This is one of the reasons you are NOT encouraged to use consent as their legal basis under 6.1. or 9.2. Also, legitimate interests can only be used by non-public authority / sector bodies (commercial or charities).
So, 6.1(e) is the most common because it is the most appropriate for the tasks usually covered by PBPP applications.
For sensitive personal data
For the lawful processing of special category sensitive data, we look at Article 9 of the GDPR:
(1) Processing of personal data revealing:
racial or ethnic origin, political opinions , religious or philosophical beliefs , or trade union membership , and the processing of genetic data, biometric data, data concerning health (physical and mental) or data concerning natural person’s sex life or sexual orientation shall be prohibited.
(2) Paragraph 1 shall not apply if one of the following apply: a) Subject has given explicit consent b) Necessary for obligations and rights of controller /subject for employment or social security c) Necessary for vital interests of subject d) Legitimate activity of non for profit body for political, philosophical, religious or trade union aim e) Data made public by the subject f) Necessary for legal claims or judicial capacity of courts g) Substantial public interest h) Preventative or occupational health, assessment of working capacity of employee, medical diagnosis, provision of health and social care i) Public interest in public health j) Necessary for archiving in public interest, scientific or historical research purposes or statistical purposes in accordance with article 89(1). (Article 89(1): subject to appropriate safeguards for the rights and freedoms of the data subject.)
The most appropriate basis chosen depends on the purpose of the application. If your application is for the use of health data, it would usually be covered by one of 9.2(h), 9.2(i) or 9.2(j), as these are the bases linked to health. For applications looking at NHS/medical processes (e.g. audits, health care planning or service improvement) then 9.2(h) would be used. For public health or infection control, you would most likely use 9.2(i). For any research, 9.2(j) should be used. If you are ever in doubt about this, you can always talk to your eDRIS coordinator to get advice.
The Common Law Duty of Confidentiality also applies to personal data that are not already in the public domain, for example patients have shared personal medical information with their GP and they expect it to be kept confidential. The Caldicott Principles and Data Protection Principles outline the special circumstances under which this information can be shared.
The PBPP replaces the Privacy Advisory Committee (which covered research), National Caldicott Scrutiny Panel (which covered both research and non-research), and CHI Advisory Group (which also covered research and non-research).
PBPP have the authority to scrutinise applications for the use of NHS Scotland controlled data and National Records of Scotland controlled NHS Central Registry data for research, healthcare service planning and improvement, audit and other well defined and bona fide purposes. This scrutiny covers the whole process from patient to data provision/analysis.
There is a single PBPP form for all applicants. Detailed guidance is also given to fill in the form (this is covered in the second part of this post). Entry to PBPP goes through the Electronic Data Research and Innovation Service (eDRIS). The eDRIS team provide advice to applicants on the data sets and variables that are available. They also advise on the capability of that data to meet the objectives of the applicants proposal. Further, they provide help to fill in the PBPP form itself. They also work closely with the PBPP team when helping applicants prepare their applications. The eDRIS team work on the provision of data from different sources and organise access to the Safe Haven and carry out disclosure checks. Finally they offer support for data analysis. Clearly, a very busy team that cover a wide range of areas! The diagram below outlines these roles:
Note as well that there are two PBPP’s- a health one (or health and social care PBPP) and a stats one. All Non-NHSS (External) data go to the stats PBPP (S-PBPP). This includes ScotXEd education data, NRS census data (which takes a minimum of 6 months for data after S-PBPP approval), social care data, HMRC and DWP data (though possible in theory, you are unlikely to be able to obtain this but that’s another story…). There tends to be longer time frames involved for getting approval for external data sets.
So, the whole process (or the eDRIS sandwich) looks like:
I found this diagram really helpful in providing a picture of how the scrutiny process works. All applications go to Tier 1. Around 5 applications are scrutinised every fortnight (in 2017/18, the panel saw 136 applications). They are assessed according to a proportionate governance traffic light system relating to the criteria set out in the PBPP application. Those assessed as Green are all OK at Tier 1 and are approved or approved with some conditions e.g. ethical approval to be obtained. Sometimes the will require clarification of minor points/changes to the form which would then be checked by the PBPP manager and approved. Those that are Amber (medium risk) may need further clarification from applicants. Those responses will need to be reviewed by the same people who reviewed the application at the panel meeting; this happens by email and the panel does not meet again. Those that are classed as Red have issues that cannot be tolerated, they are referred to Tier 2, with or without clarification. Applications can also be referred for a re-submission due to too many major changes being needed. Amendments can also be made after approval but this should be the exception. Any amendment must be within the original scope of approval. They can be made for things like change of institution, addition of variables, changes to storage location/mechanisms etc. Amendment forms are available on the PBPP website and must be submitted via your eDRIS coordinator.
6. How long is your PBPP application going to take?
This is the question we all really want to know the answer to, especially when we are planning projects with limited funding. The timing can be split up into three puzzle pieces:
This stage of the process is mainly down to you (at least once you have been allocated an eDRIS coordinator). The time taken in this stage depends on the number of iterations needed in your application, so making sure you have been thorough and clear when first filling it in will help. It will also be influenced by the complexity and clarity of the project- you’ve got to be incredibly clear and concise when outlining your research plans. Top-Tip: use diagrams where you can!
PBPP submission to PBPP approval
This part of the process is mostly very well defined and evidence is available on these timings. The figure below shows data from the 2017/18 PBPP annual report. Clocked days is the number of working days the application is being processed by the PBPP. The time for applicants to respond to any queries regarding the application is not included in clocked days. The ‘total’ number of working days from submission until the final decision is made, includes any time spent back with the applicant.
The Tier 1 panel meet every fortnight and see 5 applications. The timing for PBPP scrutiny and review is dependent on the number of iterations the application needs to go through and the speed of panel members responding. The complexity and clarity of the proposal are also important factors which could affect the time to approval. Tier 1 is faster than Tier 2 (they meet less often and by definition your application will have already been through Tier 1 processes).
This appears to be the most uncertain part as it depends on so many factors. These include, the waiting list for an eDRIS analyst, if you are requesting data from different sources. The timing is also affected by the overall complexity of the project, the amount of data required and the requirement for data sharing agreements.
7. How to fill in your application according to the 5 Safe Principles
So, we know that the PBPP are there to weigh up the public benefit versus the privacy risk of applications. They carry out this assessment by considering the Five Safe Principles which coincidentally correspond to sections in the application:
When you are filling in your application you must demonstrate how you meet the 5 Safe Principles. In what follows, I outline the main questions that PBPP ask you to answer in your application. Some of them overlap somewhat and they should not be treated as a complete check list (every project is different!), but they will help to ensure you demonstrate the 5 Safes.
The PBPP will be looking for:
Who has access to the data?
Who needs to know? Caldicott Principle 1!
How responsible are the applicants/analysts?
What is their knowledge and experience?
What training do they have?
IG training is required for an application (applicants, PHD supervisors, clinical leads, data custodians and anyone who is accessing patient level data (including pseudonymised data) needs to have up to data IG training)
Links to possible courses are on the PBPP website
Training must be renewed every 3 years
Who is responsible to ensure the applicants do what they say? Accountability principle!
The PBPP will be looking for:
Which organisation is responsible for the data?
Which organisation is the data controller? Affects main contact, which DPO should be consulted, purpose of the proposal
Responsible for the data
Researchers with NHS / University contracts
Who will keep the researchers accountable?
Does this change at different points in your proposal?
How safe is each organisation?
Is it a known public organisation / charity /company?
Write about the whole process- from patient to data analysis.
Is the use of data necessary? Can it be done another way?
Be clear about variables requested
Bear in mind the principles of data minimisation
Justify the need for every single variable
Is the project ethical?
Where will the data go? Who will access it? Top Tip: Use flow diagrams! This can really help you to see what agreements will be needed, between which organisations.
What is the population for which data requested?
Would they expect their data to be used for this purpose?
How will the processing take place?
Is the processing lawful, fair and transparent?
You MUST state the legal basis for processing data. GDPR Article 6(1) for personal data (including pseudonymised data) and GDPR Article 9(2) for special category data.
How will the rights of the subjects be upheld?
What is the public benefit?
Has the applicant carried out any public engagement? (may not apply to all applications)
Have lay people been involved in the project design? If not, why not?
Do the public see the benefit in the project you wish to do?
Would they feel that the types of data requested are reasonable?
Has any peer review of the proposal been carried out?
Has there been a review from ethics?
NHS REC opinion
University ethics committee
Has the applicant assessed the privacy risks?
Have they carried out a Data Protection Impact Assessment? Note that this can be a legal requirement, depending on the nature of the processing. If not, why not? (It’s good practice to do this and a lot of it overlaps with the content required in the PBPP).
If you are a data processor, you will need a Data Processing Agreement setting out the processing instructions.
Approvals from out with Scotland
Approvals from another Data Controller for linkage to non-health data.
The PBPP will be looking for:
How identifiable are the data?
Are identifiers used for processing only? Make this clear!
Do combinations of variables make individuals identifiable e.g. rare diseases in small populations?
Are the data anonymised or pseudonymised?
Are the data highly sensitive?
Are you adhering to the principles of data minimisation?
Are the data relevant?
Too much data? Are all variables necessary? Can you use partial or derived variables?
Too little data? Will they fulfil the aims?
Justification for requesting these data variables
Are all the details necessary e.g. full dates, full postcodes?
What will happen to the data at end of project?
What are the sources of data requested?
For new data
How is it being collected?
Who is the data controller?
For existing datasets
Who are the data controllers?
If not NHSS do you have permission?
Who is carrying out the cohort identification and/or data linkage and how? Should be by third party.
How do individuals know about the use of their data?
What would individuals expect you to do with their data?
Participant information leaflets
Privacy notices on NHS Board websites
Generic NHS leaflets/website links
From where will the data be accessed?
Will it be accessed in a Safe Haven? This is what NHS Scotland prefers!
If not in Safe Haven, why not? Consider:
How secure is the data collection process?
How secure is the transfer of data?
Will the data be accessed securely (data protection principle 6)?
Will it be accessed remotely?
Can anyone see over your shoulder?
Will the data be pseudonymised?
How will access be monitored?
Will the data be transferred securely?
Will the data be stored securely?
For how long?
Will it be destroyed? If so how?
What will be the outputs of the analysis?
Disclosure control. Beware small numbers! Groups < 5-10
Who will do disclosure control?
How aggregated is the data?
How identifiable is the data within the outputs?
Is there any confidentiality risk from publication?
What will happen to the data at the end of the analysis and at the end of the project?
9. Group discussions and reflection on the concerns raised
The general feeling in the room was that the course was very helpful. However, there were concerns raised by some participants. One concern was around ethics and knowing what ethics is required. It seemed some were confused as to what ethical approval they required and they felt they were filling in a lot of forms. I disagreed with this, as an academic who has worked with administrative health data, the ethics side of things was actually the more straightforward part. But I’d be keen on hear others views on this. It’s no surprise that another concern was on timing, but clearly timing depends on so many factors which are highly individualised to specific projects.
On timings, we have those three pieces of the puzzle: writing your application to submission; submission to approval; approval to data access. The middle piece is very clear, at least for the majority of projects, and timings are published in the PBPP annual reports. The other two depend on many external factors. What can we do to influence them?
Puzzle Piece 1: Writing your application.
I’d strongly suggest taking this course or reading this blog post (hey if you’ve read this far, you’re already part way there!). If you’ve done the background work thoroughly and you write a good application, it won’t need to go through as many iterations with your eDRIS coordinator and you will save yourself some time and make the lives of eDRIS easier.
This is the tricky piece and the timing at this stage will vary hugely from project to project. At least, that’s what I assume. But the truth is, we don’t really know. So what can we do? This is one of the reasons I set up eCRUSADers, to try and build up an understanding of the time it will take to get access to data. But realistically I doubt every PBPP applicant is about to come forward and share their experiences with us. One suggestion might be to publish data at the point of data access which outlines clearly the data sets/variables requested and the time timelines for the three parts of the puzzle. This could take the form of simply the PBPP application or just a table filled in with those timings. Alternatively, end of project reports could be made available which detail this information.
Once we know the timing from approval to data access, as well as the factors which might influence them e.g. what data sets are requested, how many years, etc, we would be better equipped to plan for research projects which have limited timelines.
Overall, The Whys and Hows of Applying to the Public Benefit Privacy Panel for Health and Social Care is a very useful course and I’d recommend you get a space on it if you are thinking about using Scotland’s administrative health data. It will take you half a day but it could save you much more time in the long run. I’d maybe even go further and say that it should be compulsory…. The PBPP is not there to trip you up, it’s there to ensure the balance of public benefit and privacy risk. They are on our side and just as keen to make the processes easier and quicker as we are. Timing remains our biggest challenge and there are bits and pieces we can do to speed things up. Having said that, the biggest timing challenge we face is from PBPP approval to data access. Unfortunately, there is little we can do to influence this and that has to change.
Anonymous data are not able to identify any individual in the data. Removal of identifiers does not necessarily make the data anonymous. In anonymous data, no combination of variables would allow an individual to be directly or indirectly identified. Anonymous data is irreversible. It is not subject to the Data Protection Act 2018.
Controllers are the main decision-makers – they exercise overall control over the purposes and means of the processing of personal data. If two or more controllers jointly determine the purposes and means of the processing of the same personal data, they are joint controllers. However, they are not joint controllers if they are processing the same data for different purposes. Controllers shoulder the highest level of compliance responsibility – you must comply with, and demonstrate compliance with, all the data protection principles as well as the other GDPR requirements. You are also responsible for the compliance of your processor(s). (from the Information Commissioner’s Office website)
Processors act on behalf of, and only on the instructions of, the relevant controller. Processors do not have the same obligations as controllers under the GDPR and do not have to pay a data protection fee. However, if you are a processor, you do have a number of direct obligations of your own under the GDPR. (from the Information Commissioner’s Office website)
Any information which either alone, or combined with any other data leads to the identification of individual(s). This could be a name or phone number, IP address or cookie identifier.
Pseudonomymous data are data that have been altered so that no direct identification of any individual can occur. However, additional information is held by you or someone else that allows the identification of an individual. This is personal data and is subject to the Data Protection Act 2018.
Personal data which are subject to more scrutiny when determining the lawful processing. They include things like race, ethnicity, medical conditions (physical and mental), sexual life, religion, philosophical beliefs, politics and trade union memberships, criminal convictions/alleged offences, genetic and biometric data. (from the Information Commissioner’s Office website)