“A core part of Google” has been told it has no lawful basis to process 5 years’ of patient data from the Royal Free Hospital in London.  With no legal basis, the data must be deleted.
In May 2016, the New Scientist reported  that Google DeepMind had access to a huge haul of patient data, seemingly without appropriate approvals. In July 2016, the MHRA confirmed  that DeepMind had not received any approvals for a trial involving patients, using patient data. In November 2016, DeepMind signed a replacement contract covering exactly the same data. [5d]
The National Data Guardian has provided a view on this matter (all emphasis added): 
The Royal Free “…confirmed to us [NDG] that 1.6 million identifiable patient records were transferred to Google DeepMind and that implied consent for direct care was the legal basis for the data processing.”
“…Streams was going through testing and therefore could not be relied upon for patient care, any role the application might have played in supporting the provision of direct care would have been limited and secondary to the purpose of the data transfer. My considered opinion therefore remains that it would not have been within the reasonable expectation of patients that their records would have been shared for this purpose.”
It is unclear whether Google DeepMind has complied with the finding that it had no legal basis for processing this data; nor is it clear what it was that first attracted DeepMind executives to unlawfully copy 1.6 million people’s medical records, repeatedly insisting on direct care as the sole legal basis. 
medConfidential agrees with the Information Commissioner, when she said in a speech to technology companies: “I do not believe data protection law is standing in the way of your success.” She reminded her audience: “It’s not privacy or innovation – it’s privacy and innovation.” 
In this case, this DeepMind project turned out to be neither of those things. 
The National Data Guardian’s investigation has made clear – despite their claims to the contrary – that DeepMind had no legal basis for their actions in this project.
medConfidential coordinator, Phil Booth, said:
“This letter shows that Google DeepMind must know it had to delete the 1.6 million patient medical records it should never have had in the first place. There were legitimate ways for DeepMind to develop the app they wanted to sell. Instead they broke the law, and then lied to the public about it.
“Every flow of patient data in and around the NHS must be safe, consensual and transparent. Patients should know how their data is used, including for possible improvements to care using new digital tools. Such gross disregard of medical ethics by commercial interests – whose vision of ‘patient care’ reaches little further than their business plan – must never be repeated.
“While the NHS sent doctors to a meeting, DeepMind sent lawyers and trained negotiators. What this boils down to is whether Google’s AI division followed the law and told the truth; it now appears they may have done neither.
“As events this weekend have shown, it’s the number of copies of patient data that matter – encryption locks won’t reassure anyone, if the wrong people have been given the keys.”
medConfidential campaigns for confidentiality and consent in health and social care, seeking to ensure that every flow of data into, across and out of the NHS and care system is consensual, safe and transparent. Founded in January 2013, medConfidential is an independent, non-partisan organisation working with patients and medics, service users and care professionals.
For further information or for immediate or future interview, please contact Phil Booth, coordinator of medConfidential, on firstname.lastname@example.org
Notes to editors
1) “The NDG has provided a view on this matter to assist the ICO’s investigation” was the National Data Guardian’s comment on the publication of the University of Cambridge paper, ‘Google DeepMind and healthcare in an age of algorithms’: https://link.springer.com/article/10.1007%2Fs12553-017-0179-1 and http://www.cam.ac.uk/research/news/
Sky News published a copy of the letter from the National Data Guardian on 15 May 2017: http://news.sky.com/story/google-received-16-million-nhs-patients-data-on-an-inappropriate-legal-basis-10879142
2) medConfidential raised a complaint  to the ICO following reports in the New Scientist, and follow-ups elsewhere, about secretive data use by Google DeepMind:
b) New Scientist, 13/5/16: https://www.newscientist.com/article/2088056-did-
d) BBC, 19/7/16: http://www.bbc.co.uk/news/technology-36783521
e) Guardian, 6/5/16 (note 9 May & 25 July updates at the bottom of the article): https://www.theguardian.com/technology/2016/may/06/deepmind-best-privacy-infrastructure-handling-nhs-data-says-co-founder
3) “DeepMind is currently working with the MHRA to ensure that the device complies with all relevant medical device legislation before it is placed on the market” – TechCrunch, 20/7/17: https://techcrunch.com/2016/07/20/deepminds-first-nhs-health-app-faces-more-regulatory-bumps/
4) Information Commissioner’s speech, ‘Transparency, trust and progressive data protection’, 29 September 2016: https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/
5) medConfidential’s complaint is available here:
a) Timeline of events, as of 31/5/16: https://medconfidential.org/wp-content/uploads/
b) Complaint to Regulators: https://medconfidential.org/wp-content/uploads/2016/06/
c) Shortly after submission, the MHRA found that the project should have been registered with them (and wasn’t): https://techcrunch.com/2016/07/20/deepminds-first-nhs-health-app-faces-more-regulatory-bumps/
d) The end of the first ‘Note to editors’ in a press release from the Royal Free Hospital on 22 November 2016 clearly states: “The new agreement does not change the number of patients whose data will be processed by Streams”: https://www.royalfree.nhs.uk/news-media/news/nhs-and-technology-leaders-agree-groundbreaking-partnership-to-improve-safe/
6) Claims by the New Scientist have been vindicated by the investigation, despite an extremely strong PR response from Google. Contemporary quotes from project advocates, which now ring hollow, include: [all emphasis added]
a) Mustafa Suleyman, Co-Founder at DeepMind, has said:
i) “As Googlers, we have the very best privacy and secure infrastructure for managing the most sensitive data in the world. That’s something we’re able to draw upon as we’re such a core part of Google.” [Guardian, 6/5/16]
ii) “We have, and will always, hold ourselves to the highest possible standards of patient data protection.” [Daily Mail, 4/5/16]
iii) How this came about all started with Dr Chris Laing, of the Royal Free Hospital: “We went for coffee and ended up chatting for four hours.” [BBC News Online, 19/7/16]
iv) More recently, in an interview with Mr Suleyman published on 20/3/17: “When pushed on how the public would be assured that its sensitive data was safe, Suleyman replied, “first there is the law”.” [Digital Health, 20/3/17]
b) George Freeman MP, at the time a Minister in the Department of Health: “NHS patients need to know their data will be secure and not be sold or used inappropriately, which is why we have introduced tough new measures to ensure patient confidentiality.” [Daily Mail, 4/5/16]
c) Professor Hugh Montgomery, (consultant for Google’s DeepMind project) said, on Radio 4’s PM programme on 4 May 2016:
i) “So this is standard business as usual. In this case, it was a standard information data sharing agreement with another supplier, which meets all of those levels of governance. In fact, the agreement there, or the standards of management of those data, meets the very very highest levels. It meets something called HSCIC level 3, which most hospitals trusts don’t even reach.” [Recording of audio available, see link below]
ii) “So firstly, this isn’t research. Research is governed by an entirely separate process that would require anonymisation of data and all sorts. This is data processing.”
iii) “It’s fair to say again that not only is this data at the very highest standards, and beats every standard, and more in the United Kingdom. But the data is encrypted end-to-end, and they have to, like everyone else in the health service, stick to the law.”
iv) Recording of audio available at: https://www.dropbox.com/s/cfimojgec24rlrj/
d) Will Cavendish, now Strategy Lead for DeepMind Applied, formerly Informatics Accountable Officer at the Department of Health, said (when IAO):
i) …“The vital importance of trust, security, and cyber security.” … “To be honest, it used to be that not a week goes by, now it’s not a day goes by, without stories of hacking, data leaks, inadvertent data sharing. This absolutely erodes the trust that underpins the work that we do.” https://www.youtube.com/watch?v=5Ej3PRF1jUw&t=2h15m5s
e) Dr Julian Huppert, Chair and “on behalf of the Panel of Independent Reviewers for Google DeepMind Health” said in an e-mail to medConfidential on 6/7/16:
i) “one of our roles is to look in detail at how DeepMind Health uses patient data, and to confirm that it complies with the highest ethical and regulatory standards.”
ii) “We believe from what we have seen so far that DeepMind has a clear commitment to the Caldicott Principles, and that they have to date been honest in their public and private comments. We also believe they are willing to work constructively with regulators, and remain within the law.”
7) The claim to reach “HSCIC level 3” was a self-assessment by DeepMind, which was revoked upon examination. [See the 25 July update to this Guardian article].
8) In a controversial press release by the hospital on 24 February 2017, the word “Google” did not appear once, despite point 6 (a)(i) above: https://www.royalfree.nhs.uk/news-media/
news/new-app-helping-to-improve-patient-care/ and a subsequent Guardian article on 9 March 2017, from a press release by Google DeepMind, which explicitly attributes actions to Google DeepMind: https://www.theguardian.com/technology/2017/mar/09/google-deepmind-health-records-tracking-blockchain-nhs-hospitals
9) “ “With health data, and government acquired health data, we need to be sure we aren’t, in effect, giving oxygen away for free to a private company that will start to sell it back to us,” says Azeem Azhar, who writes the popular Exponential View newsletter…” – Quartz, 17/3/17: https://qz.com/934137/googles-goog-deepmind-got-too-much-health-data-from-
– ends –