“There is public interest in the openness and transparency of information. Disclosure would demonstrate that policies and procedures were followed, and a thorough investigation was undertaken, through the information collected, considered and assessed, as part of the ‘Putting Things Right’ process.”
“The UHB requires the ability to conduct effective and thorough investigations and disclosure of these documents would inhibit the UHB from undertaking investigations with free and frank discussion. Professional opinion provided by doctors as part of these free and frank discussions allows the investigation officer to ask questions to get a better and fuller understanding of the matter they are investigating.”
“The UHB has considered that releasing the information under the FoIA, to which the UHB is subject, could inhibit the UHB’s ability to conduct effective investigations which could in turn hinder the UHB’s ability to review practices and learn from patient stories. Whilst the public interest in the openness and transparency of the lessons learnt is strong, it is outweighed by the UHB’s need to undertake thorough unbiased investigations, utilising the professional opinion of trained clinicians to answer the questions that arise. Therefore, the public interest in withholding these documents is greater than the disclosure [sic].”
“Even though the Section 31 exemption is titled ‘Law enforcement’, this cannot be taken exactly as worded; as the sub-sections explain, public authorities have the right to withhold information if it would or would be likely to inhibit the effectiveness of the UHB’s decision making and the free and frank exchange of views and opinion for the purposes of conducting internal independent reviews. Releasing the information requested could undermine the integrity of a complaint investigation, as the individuals involved could feel that they are not able to provide the professional opinion requested, for fear of it being released into the wider public domain without context, justification, explanation or an evidence base. I would also like to take this opportunity to explain, that as part of the process to investigate concerns and complaints, an independent review is undertaken by Patient Support Services (PSS). This involves seeking advice from members of the UHB’s staff, who are independent of the concern or complaint, whereby they will independently look at the evidence, i.e. medical records, and provide their non-biased opinions, to enable PSS to formulate a response letter explaining the outcome of the investigation of the concern or complaint, whilst making every effort to address the questions asked. Whilst I acknowledge and appreciate that you do not consider the process to be independent due to the team operating within the UHB, this process ensures that all cases are scrutinised and questioned in an open and transparent manner, ensuring that any concerns are investigated fully. Upon reviewing your request, I liaised with the Executive Director for Nursing, Quality and Patient Experience, who has advised that should you remain dissatisfied, the PSS team can arrange a face-to-face meeting with you and the relevant clinical team to discuss any matters you may still have concerns with. You may also ask the Public Services Ombudsman for Wales (PSOW) to investigate the matter. Should the PSOW feel it necessary to investigate your case, then the case file will be shared with them to allow for further independent scrutiny.”
“UHB has considered that the complaint which was raised about the care and treatment of the third party relates to one patient. As such UHB argued that this is not a matter of interest to the wider public. It contends that to disclose the information would be likely to inhibit the effectiveness of UHB’s decision making and the free and frank exchange of views and opinion for the purposes of conducting internal independent reviews.” ii. By his grounds of appeal, the Appellant responds: “Refers to a single person and not wider public this argument is of no value, this information is only valid to me on behalf of [the Patient]. It allows Hwyl Dda not to be transparent and possibly dishonest in the decisions it has made in the complaint response, FOI should address this.” b. Paragraph 24 of the Decision Notice: i. The Commissioner says: “UHB has considered the withheld information which contains objective comments and professional opinion of clinical colleagues after reviewing medical records or directly answering questions from the investigation case officer to aid in their understanding of the circumstances that arose, in order to form a final opinion or response to the complaint. UHB argued that disclosure of the information into the public domain would undermine the integrity of an investigation as staff would feel unable to provide professional opinion when requested for fear of it being released into the public domain without context, justification, or evidence to support their views.” ii. By his grounds of appeal, the Appellant responds: “Releasing any information from a public body would support this argument and make the FOI Act worthless, not a fair argument.” c. Paragraph 25 of the Decision Notice: i. The Commissioner says: “UHB says that it relies on its trusted relationships with colleagues when investigating complaints in order to ensure that a comprehensive picture of the patient’s treatment can be ascertained, alongside perspectives and opinions of colleagues not involved in their care to understand whether errors which could have impeded the treatment provided were made. It says that disclosure of the information could break or damage this relationship which could impede its ability to undertake thorough investigations in future cases.” ii. By his grounds of appeal, the Appellant responds: “Relationships with colleagues etc is not a valid argument to withhold personal information, again makes FOI redundant.” d. Paragraph 26 of the Decision Notice: i. The Commissioner says: “[UHB] asserted that where an individual is dissatisfied with the outcome of their complaint, under the PTR process they are advised to escalate the complaint to the Public Service Ombudsman for Wales ("the Ombudsman") and Llais. It explained further that the PSOW has legal powers to investigate complaints about public services in Wales. It says that when a complaint is raised, the PSOW will determine if there are grounds for further investigation. If it finds this to be the case, the PSOW will then request the full case file for further scrutiny.” ii. By his grounds of appeal, the Appellant responds: “The Ombudsman won't investigate further as I can't provide all the information which I believe is damming.” e. Paragraph 27 of the Decision Notice: i. The Commissioner says: “UHB has informed the Commissioner that the complainant was offered a meeting to discuss their concerns in addition to signposting them to the PSOW and Llais. In reaching its conclusion, UHB maintained that based on its arguments, the balance of the public interest favoured maintaining the exemption. ii. By his grounds of appeal, the Appellant responds: “Won't discuss withheld information. Note- I requested same information under the Data protection act, and [UHB] said they would have released it if [the Patient] was still alive...”
“Appropriateness of the FOI request made – does it fall within scope ofFreedom of Information Act 2000 (FOIA) The focus of the appellant on disclosure of information pertaining to a personal matter, and not in the wider public interest per the FOIA Appropriateness of the application of exemptions by HDUHB under the FOIA – in particular Section 31 and appellant’s focus on the ‘Law Enforcement’ title Lack of clarity and confusion on behalf of the appellant with regard to the differentiation between the different processes within the Health Board – Putting Things Right (PTR)/FOIA The appellant is relying upon the need for disclosure to aid the re-investigation by the Public Services Ombudsman for Wales (PSOW) , although the appellant has received the PSOW Decision letter stating that there are no grounds for investigation (anonymised copy has been provided to the HDUHB”
“81. But there are many consequences of poor hospital performance which plainly can properly be said to give rise to risks to health and safety, such as, for example, systemic errors which result in abnormally high death rates in connection with surgery for a condition which if untreated would not have been fatal, or which result in patients suffering an abnormally high rate of infection. 82. Exactly where the line falls between purposes falling within and those falling outside the wording of s.31(2)(j), in a medical context, may be difficult to determine. In general it seems to me that if the position is that systemically poor healthcare has or may have left patients in a substantially worse position than would have been the case if a reasonably competent standard of care had been provided, the case is capable of falling within s.31(2)(j).” f. UHB has a statutory duty to exercise its functions with a view to improving patient safety, by s12A of the 2006 Act. The protection of persons against health and safety risks is thus plainly one of UHB’s “purposes”, in the way required by Stevenson v Information Commissioner[2013] UKUT 181 (AAC) [79]. g. Moreover, dealing with concerns under the PTR process is a function that furthers this statutory purpose. As well as investigating concerns, UHB is under a specific statutory duty, by Regulation 49 of the 2011 Regulations, to review the outcomes of such investigations, to act on and monitor any deficiencies identified through the PTR process, and to learn and promulgate the lessons from that process “in order to improve the services that it provides and to seek to avoid such deficiencies recurring”
“in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”
“processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”
“The words “law enforcement” were in my judgment intended as a broad summary or indication of the scope of and reason for the exemptions in section 31. It is plain from reading the activities listed in s.31(1)(1), and the purposes specified in s.31(2), that they include activities and purposes which go beyond actual law enforcement in the sense of taking civil or criminal or regulatory proceedings. They include a wide variety of activities which can be regarded as in aid of or related to the enforcement of (i) the criminal law, (ii) any regulatory regime established by statute, (iii) professional and other disciplinary codes, (iv) standards of fitness and competence for acting as a company director or other manager of a corporate body (v) aspects of the law relating to charities and their property and (vi) standards of health and safety at work.”
“We interpret the expression “likely to prejudice” as meaning that the chance of prejudice being suffered should be more than a hypothetical or remote possibility; there must have been a real and significant risk.”
“The Health Board accepted that a wait time on the ambulance of 33 hours was wholly unacceptable, and it apologised for this issue. I note that the situation with regards to ambulances waiting outside of EDs is not unique to this particular Health Board, and is a UK wide issue. Having considered this matter very carefully, I am not persuaded that investigation of this matter by the Ombudsman would likely achieve anything further. The Ombudsman is keen to ensure that bodies within her jurisdiction acknowledge failures and apologise for them, make amends, and use the opportunity to improve their services. I am satisfied that the Health Board is taking steps to improve service provision, and that recommendations from this office would not likely assist any further.”
“The UHB relies on being able to consult clinical professionals when investigating a complaint to ensure that the care provided to the patient was what was best for the patient at that time. By obtaining an independent review and second opinion of the care provided, the UHB is able to consider the concern in its fullest and ensure the most complete perspective and response is provided to the complainant. As part of this process, the need for free and frank exchange of views in a neutral environment is essential to ensure that all eventualities and possibilities are considered. This allows the treating clinician and any independent reviewers to consider the full picture, to include the needs of the patient, the patient’s clinical pressures, alongside any affecting external clinical pressures at that time. Disclosing the complaint file would undermine the independent review process, as clinical professionals would not feel able to share their views as freely as they do now, for fear of the information being disclosed to the public at large. Additionally, the complaint file includes several draft responses that have been annotated with additional questions being asked within the response for consideration by clinical professionals. Disclosure of incomplete draft responses could provide a false understanding or presentation to the complainant, as hypothesis and lines of questioning naturally form within an investigation, although these are often closed using professional opinion. Disclosure of the complaint file would impede the UHB’s ability to conduct the investigations required of it under the Putting Things Right process, as the requirement of free and frank exchange of views for the purposes of deliberation is what ensures a complete and thorough investigation is conducted.”
“Disclosing the file would allow the complainant to view the documents considered as part of the investigation process alongside previous draft responses. These documents formed part of an investigation package which in turn were utilised to draw a final conclusion against the concern raised. The disclosure of the documents would allow the complainant to see that a full and through investigation was conducted and that any questions posed throughout were considered by clinical professionals and responded to as appropriate; with each of these opinions used to conclude the investigation and prepare a final response.”
“Any individual submitting a concern under the Putting Things Right process has a route of recourse through the Public Services Ombudsman for Wales (PSOW). The PSOW in these circumstances will review the concern raised and make a determination on whether there is a case for investigation. A complainant is not required by the PSOW to submit a complete case file but should the PSOW feel there is a case to be answered, the PSOW will seek access to the case file directly from the Local Health Board. My understanding is that in this case, the PSOW determined that an investigation was not warranted, and was satisfied that a full investigation had been undertaken by the Health Board.”
“The clinicians involved in the investigative process would feel undermined by the disclosure of the complaint file and could in turn be reluctant to participate in future investigations, as they would not want their clinical opinion that is being provided in the context of the specific complaint being investigated to be disclosed to the public at large. This would in turn inhibit the UHB’s ability to undertake a thorough investigation, as there is a chance that the clinical professionals would not want to participate in discussions for the purpose of investigating a complaint, as they would not wish for their professional opinion to be disclosed or may feel that their professional opinion could be undermined or used against them.”
“The Health Board as a Public Authority is required under legislation to investigate any concerns raised under the Putting Thing Right process. The Health Board is reliant on individuals feeling comfortable enough to raise their concerns, to allow a full and thorough investigation to be conducted. The disclosure of the requested documentation in this case would prejudice the effective conduct of public affairs, as it would impede the Health Board’s ability to build effective, trusting relationships with service users, to allow for information gathering and swift resolution of the concerns raised. The disclosure of these documents would set an expectation that the Health Board routinely discloses private, confidential case files into the public domain, which would in turn impact upon both staff and the public’s confidence in their ability to raise or participate in the investigation of concerns. Additionally, complaints cause a significant amount of stress and tension within the workforce and so the disclosure of case files of this nature would increase these emotions and could cause unnecessary concern amongst the workforce, which is already under significant pressure. This has the potential to exacerbate problems with recruiting and retaining staff.”