ICO and PHSO collaboration
‘Thanks for this. You are absolutely right and that has happened in the past.
Thanks and I agree.’
Be yourself; Everyone else is already taken.— Oscar Wilde.
Link to my information request:
I. EXPECTATION OF PRIVACY
Para 41 of the DN (extract):
“The Commissioner notes it is the PHSO’s policy is not to make public the identity of its clinical advisers, whether in connection with a particular complaint or investigation or not. She therefore accepts that the clinical adviser’s expectations will be that their identity will remain private and confidential unless they consent to its public disclosure or there are exceptional circumstances.”
I consider the Commissioner has palpably erred in accepting that the PHSO is free to decide which senior staff can and cannot be named. In response to my request for an internal review, the PHSO disclosed the names of two senior grade 2 staff hitherto withheld – the Senior Lawyer and the Solutions Architect. If the names of these two senior grade 2 staff can be disclosed, then I see no reason in principle to withhold the names of the remaining twenty-three clinicians of the same senior grade. The Commissioner points out in para. 42 of the DN that clinical advisers “do not perform a public facing role”. The Senior Lawyer and the Solutions Architect are not public facing either.
Some information on salaries:
In a job advertisement with a closing date of 17 July 2018 the salary band of the Senior Lawyer was “£51,985 – £61,342 (Manchester) £56,527 -£66,702 (London)”.
In a job advertisement with a closing date of 27 May 2019 the salary band of a Clinical Adviser (consultant psychiatrist) was “ £69,216 – £82,446 pro rata”. This is a one-day-a-week job.
The salary band of the Senior Lawyer may strike you as somewhat low given the demands of the position and the fact that lawyers earn thousands a day. Mr Justice Holman, for example, when assessing costs in Ekperigin v Bar Standards Board remarked: “I do not see how I could take the view that the brief fee at £2,000 for a full day’s appeal hearing is excessive, even for somebody called in 2016.”
However, I would point out that the starting salary of senior ICO staff is in the region of £31,000 (grade E):
Senior staff – a comparison with the ICO:
Compared to the ICO the PHSO has a remarkably small proportion of ‘senior’ staff. The ICO disclosed in a response dated December 2017 that of its 441.19 FTE staff, 178.5 FTE were classified as senior (grades E to H):
The PHSO in its 2017/18 annual report disclosed that it employed 421 FTE staff (page 73):https://www.ombudsman.org.uk/sites/default/files/PHSO_Annual_Report_and_Accounts_2017_2018.pdf
In response to my information request the PHSO disclosed that it employed 49 senior staff, of which it named only 26.
II. RISK OF HARASSMENT
Para. 44 of the DN (extract):
“Such harassment would cause them distress and upset and potentially impact on their ability to carry out their roles in the NHS.”
I do not accept that disclosure of the clinicians’ names would lead to the harassment referred to by the Commissioner. Some clinicians may be subjected to unwanted attention by aggrieved complainants, but this is likely to come from complainants who know the name of the clinical advisers who dealt with their complaints. In para. 41 of the DN the Commissioner acknowledges: “…that on occasions the identity of the clinical advisor and the advice they provide is made known to the complainant and the organisation complained against.”
The information I seek links no individual clinician to any particular report. The Commissioner, however, accepts (erroneously in my view) the PHSO argument that individuals or internet groups would be beavering away to compile a “mosaic of information” to identify which clinician wrote which report. I consider her concerns overblown. She seems to be treating aggrieved complainants as something akin to animal rights fanatics whose organisations get infiltrated by the police. Even in the event that an aggrieved complainant or internet group launched a campaign of harassment directed at a particular clinician, it is my firm view that it would be nipped in the bud. The NHS already deals with a significant number of a malcontents each year who have axes to grind against specific members of staff; it has procedures in place to deal with these troublemakers. Also, senior clinicians are not known for being shrinking violets who fall to pieces when their professional opinions are challenged.
By way of analogy consider judges. Every day they cause great disappointment to a great many people. Nonetheless, those disappointed know the name of the judge who presided in their case – and so they should. Occasionally you read about some out-of-control defendant hurling abuse at a judge, but such scenes are fortunately rare (I am reminded of a case where a lout used the c-word in a courtroom). It would not be right to provide judges with blanket anonymity because of the risk posed by a tiny number of unhinged defendants and appellants.
Finally, the PHSO’s staff turnover was 43 per cent in 2017/18; the target was 20.4 per cent:
Disclosure of the information I seek would help inform the public of how things are at the top of the organisation. It could provide valuable reassurance that the organisation is solid where it most counts.
CASE MANAGEMENT DIRECTIONS
- This appeal was listed for paper determination by a three-member Tribunal panel on 3/2/19.
2. We decided that we required the Second Respondent (“the PHSO”) to provide further information before we could determine the appeal.Directionsto the PHSO
3. The PHSO must comply with the following directions by 14/3/20.
4. The PHSO must provide a submission to the Tribunal and the other parties which addresses the following points.
a) On page 36 of the appeal bundle,Mr Moore refers to a factual difference between him and the Respondent. His understanding is that 23 names have been withheld, whereas the Respondent has referred to 8 names. The number cited by Mr Moore appears to correspond with the spreadsheet at page 54 of the bundle in which the names of 23 grade 2 clinicians have been omitted from the first two columns. The PHSO is required to explain this discrepancy and to confirm how many names have been withheld. (emphasis in original)
b) The Commissioner has concluded that the PHSO is entitled to withhold the names of the relevant in-house clinical advisers. We noted, however, that the PHSO’s response (page 62 of the bundle) to the Respondent’s enquiries refers to two separate categories of clinical adviser; the in-house advisers and a pool of 900 independent clinical advisers. The PHSO put forward a number of arguments as to why the disclosure of names would breach the first data protection principle. In order to eliminate the arguments that apply only to the independent advisors(who appear to fall outside the scope of Mr Moore’s request for information), the PHSO must confirm whether any of their following points apply to the in-house advisers. (emphasis in original)
i. The assertion on page 62 that there is a “very real risk of harassment and abuse … should their identities be disclosed”.
ii. The reference on page 62 to the potential adverse impact on other NHS roles.
iii. The reference on page 62 to the PHSO’s “current policy …. that the clinical advisors will remain anonymous.” (If that is a written policy and it applies to the in-house advisers,a copy should be providedwith the submission.)
iv. The contractual provision referred to at the top of page 63.(If that provision applies to the in-house advisers a copy should be provided with the submission.)
v.The reference at page 64 to some advisers publicising the fact that they are advisors to the PHSO.
c) Are the in-house advisers used in preference to the independent advisers (as suggested on page 65 of the bundle) when they have the capacity to take on cases.
d) We noted that the job title of 3 of the in-house advisers whose names have been omitted from the spreadsheet at page 54 of the bundle is “Lead Clinician”. Do the arguments against disclosure that apply to the in-house advisers apply equally to those advisers given that theirspeciality is not referenced?
e) The PHSO’s email to the tribunal dated 20/11/19 referred to the PHSO “being content to rely upon [their] submissions in this matter”. The bundle did not include any submissions from the PHSO. If the PHSO has provided any appeal submissions, they must be re-sent to the Tribunal and the other parties.
Direction to the Commissioner
5. The decision notice starting at page 67 of the bundle is incomplete. The Commissioner must provide a full replacement copy to the Tribunal and the other parties within 14 days.
Amendment etc. of these directions
6.Any party may apply to the Tribunal for an amendment, suspension or set aside of the above directions.
PHSO’s response to Directions
SUBMISSIONS ON BEHALF OF THE SECOND RESPONDENT
- These submissions are made in response to direct queries raised and it has been attempted to respond broadly in order for ease of reference.
2. Due to the closure of our offices due to the current pandemic, the paginated Bundle is unfortunately not available at present. However, the spreadsheet supplied by PHSO as part of the initial request clearly refers to 23 Inhouse Clinical advisers, of whom three are noted as Lead Clinicians.
3. It is unclear when PHSO are alleged to said to have referred to eight Inhouse Clinicians but if the document in question could be supplied, then we will respond to that point more fully.
In House Clinical Advisers and Lead In House Clinical Advisers
4. For the avoidance of doubt, the PHSO takes the view that the position of the inhouse (both Lead and not) and external clinical advisers is identical in terms of the appropriateness of disclosure.
5. In regard to point B(i), it is submitted that the same risk of harassment and abuse applies to both groups. Further it would be illogical for one group to have their names disclosed whilst another did not, purely due to the contractual relationship where all other factors remain identical.
6. Further and in regard to B(ii), both the inhouse and external clinical advisers remain actively employed by the NHS and are engaged in NHS clinical practice. This is a requirement of appointment. Although the Lead Clinicians do not have a speciality recorded against their names, they do, of course, have such a specialty and in the event their names were published, the same issues would apply to themas all other advisers.
7. In regard to B(iii), the PHSO has always taken the view that it is not appropriate to publish the names of any clinical advisers and, despite various challenges to the Information Commissioner, has always retained this position for the reasons set out in this case. The Clinical Advisers therefore all have an expectation that their names would not be revealed publicly. This is confirmed in the Ombudsman’s Service Model Guidance (the Ombudsman’s main guidance to staff on the handling and conduct of investigations which is published on his website) at page 119 which specifically confirms that the names of Clinical Advisers will not usually be shared (Para 9.3). This extract is provided with these submissions, for brevity, but the entire document can be made available if this is helpful.
8. The Service Model Guidance is a lengthy document running to some 190 pages and detailing all aspects of the Ombudsman’s process. All staff are aware of this document and significant training is undertaken by frontline colleagues in regard to how it applies to their work. It is therefore well known within the organisation that the names of clinical advisers are not to be shared.
9. Further, the Ombudsman has published his position on this on the website “What Do They Know”. It is therefore a legitimate expectation for all those involved that the names are not published.
10. In regard to point B(iv), it may be that documentation has been updated since the initial response and I am in the process of locating the contract in question.
11. In regard to B(v), it may be that some individuals choose to disclose their involvement with the Ombudsman. No evidence of this has been seen but it is accepted that this may be the case. However, the majority of clinicians do not choose to do so, as far as the Ombudsman is aware, and to publish names in the way envisaged by this request would remove the decision from individuals as to what personal information about themselves they elect to put into the public domain. In this case, the issue is not that the name of a single clinician is provided to a specific complainant but is an application that none of the Ombudsman’s clinical advisers, whether inhouse or external, are entitled to privacy and there should be the publication of all names to the world at large.
12. In response to C, the decision as to who is to be instructed in any matter is dependent on the issues which need to be advised upon in the case in question. The suitability and relevant qualification of the expert is the primary concern. If there is a suitable inhouse adviser who has the requisite competence, skills and availability to work to the timescale needed in the case and who does not have any conflict, it is highly likely they would be asked to undertake the report and if they could not,then an external adviser would be sought.
13. As noted above, in regard to D, the Ombudsman submits that the position for the Lead Clinicians is the same as the other advisers. Whilst it is accepted their speciality is not named in the spreadsheet in question, they do, of course, have specialities and remain employed by the NHS.
14. It is hoped that this addresses the outstanding queries. If anything further would assist, then we will provide further responses accordingly.
IN THE MATTER OF AN APPEAL TO THE FIRST-TIER TRIBUNAL (INFORMATION RIGHTS) UNDER SECTION 57 OF THE FREEDOM OF INFORMATION ACT 2000
Appeal No. EA/2019/0250
THE INFORMATION COMMISSIONER
REPLY TO THE INFORMATION COMMISSIONER’S RESPONSE
(1) ‘However, the PHSO continued to withhold the names of its employed in house clinical advisors under section 40(2) FOIA – eight names in total’. (para. 13)
I first wish to alert the Tribunal to a factual difference between myself and the ICO on the amount of information withheld. I stated in my grounds of appeal that twenty-three names were withheld; the Commissioner has stated in her Response that the correct number is eight. The information provided to me by the PHSO can be accessed on the Whatdotheyknow website via the following web link:
I have double-checked. Twenty-three clinicians’ names have been withheld, which means that almost half of all ‘senior’ PHSO staff are cloaked in anonymity. That these clinicians are not full-time PHSO employees is no justification for not disclosing the information I have requested.
(2) ‘The reasonable expectation of the clinical advisers to the PHSO that their names will not be disclosed to the public is based upon the policy of the PHSO that they will remain anonymous to safeguard their objectivity and privacy so that they are not exposed to public pressure and harassment.’ (para. 29)
‘The Commissioner notes from the PHSO that a complainant may receive the names and advice of clinical advisers in the draft report, the complainant is advised that the report is confidential and by law they (and the organisation complained against) cannot make the contents public (the final report being anonymised). (para 30)
I do not consider that the twenty-three clinical advisers whose names have been withheld can reasonably expect anonymity. If their names are sometimes divulged in draft reports,then in a sense they already do not have anonymity. It may be, however, that the names referred to in paragraph 30 refer exclusively to the 900 independent clinical advisers engaged by the PHSO (Decision Notice para. 39). If so, then any public pressure and harassment experienced by clinical advisors who are senior staff cannot have originated from the names contained in draft reports. Of course, the harassment of any clinician is unacceptable; however, I do not understand the PHSO’s argument that it is fine to divulge the names of clinical advisers in draft reports which may result in their harassment (no malcontent is likely to heed a PHSO warning to keep the contents of a draft report confidential, after all), but not fine to reveal to me the names of all senior staff who are clinicians and who are not linked to any specific report.
(3) ‘The Commissioner would maintain that she was entitled to accept the word of the PHSO that, based on its experience, there is a real risk that clinical advisers would be vulnerable to harassment either by being directly contacted by those dissatisfied with the PHSO’s findings or by internet campaigns. The PHSO has advised that this has in the past included looking for, collating and publishing information such as presentations they have delivered in the past and where they work with GMC numbers compiling a mosaic of information.’ (para 32)
I am disappointed that the Commissioner has not had sight of the crucial evidence on which she based her conclusion supportive of the PHSO. I question her entitlement to simply accept the word of the PHSO on the matter. By doing so, she missed out the process of evaluating the evidence. If the evidence pointed to the draft reports as the source of the trouble, would it not weaken the PHSO’s argument in withholding the names that I seek? I ask this rhetorical question because the information I seek links no clinician to any particular report.
Releasing the names that I seek would increase the transparency of the PHSO whilst simultaneously maintaining the anonymity of clinicians with regard to individual reports. The Commissioner refers to Goldsmith (para 21) to support her case. Whilst ‘there is no presumption that openness and transparency should take priority over personal privacy’ (Goldsmith para 31), I contend that that the Commissioner has incorrectly applied the principle of personal privacy as identified in Goldsmith to my case. Simply revealing their names would be neither unlawful nor unfair. Outside of the security services, it is hard to think of another publicly funded organisation which grants anonymity to almost 50 per cent of its senior staff. Also, for an organisation that had a staff turnover rate of 43 per cent in 2017/18 I contend that there is a high public interest in knowing who the senior staff are, as the high figure may be symptomatic of deeply ingrained problems contributed to by a culture of anonymity at the top of the organisation. Recruiting staff is a considerable burden on taxpayers. For example, In 2009 the cost of recruitment per employee in the Ministry of Justice was estimated at £1,400, and in the UK legal sector it costs around £6,500 to recruit and replace someone earning more than £25,000 (pages 18 and 19):
The ICO’s staff turnover in 2016/17, according to an internal audit carried out by Grant Thornton, was 8 per cent:https://ico.org.uk/media/about-the-ico/minutes-and-papers/2017/2014033/audit-committee-people-strategy-review-20170307.pdf
(4) ‘The Appellant further argues that “even if…a campaign of harassment directed at a particular clinician” was launched, “it would be nipped in the bud”. However, even if that was the case, this would not rule out distress to the individual adviser in the meantime.’ (para 34)
It would be wrong to decide entitlement to anonymity on the basis of whether a member of staff could be caused any distress. Staff who are not clinical advisers and who do not have anonymity may suffer distress from aggrieved individuals and internet groups, but what distress they suffer tends to be short-lived and is no justification for providing their successors with anonymity.
I consider that the question of distress should be one of undue distress. Would the twenty-three clinical advisers suffer undue distress if their names were released? I think not. In my view, an objective judgment must be made as to whether the foreseeable distress is unreasonable in the context of the personal, subjective characteristics of the twenty-three clinical advisors. Clinical advisers, I contend, are made of sterner stuff than the PHSO and the ICO give them credit for. They are resilient professionals who have learned during the course of their careers how to handle both constructive criticism and unjustified attacks. They know that an email from a crank can ultimately be passed to the police. They also know that in the event of receiving an email from a crank, police action would seldom be necessary.
(5) ‘The Appellant further tries to draw an analogy with the position of judges. However, it is clear that Judges are the final arbiter of the cases they hear (subject to any appeal). However, the role of the clinical adviser is to advise. They do not make the final decision within the PHSO.’ (para 35)
The Commissioner has failed to grasp what part of the comparison is pertinent. She draws the parallel with final decision-making powers and in so doing completely misses the point. The point of my analogy was to show that clinical advisers are capable of dealing with criticism – they are not thin-skinned. I chose to compare them with judges because (1) judges are highly intelligent and provide valuable public service; and (2) judges continually experience unjustified criticisms for the invaluable work that they do. If a judge received unwanted attention from a member of the public as a consequence of discharging their professional duties they would know exactly how to deal with it, how to nip it in the bud. So too would a clinical advisor. Anonymity is not necessary to keep the PHSO wheels turning. In fact, it may have a negative effect.
(6) Blanket anonymity for clinical advisers who are senior staff could mean that the public would not know about the PHSO past of a clinical adviser exposed as a dodgy doctor. Consider for example, Zholia Alemi:
who practised for 22 years as a psychiatrist without being qualified.
Had she worked anonymously for the PHSO, the possibility of complainants being provided with dodgy reports would have been very real indeed. When news broke that she was a bogus psychiatrist, complainants whose reports she wrote would have been none the wiser. Had complainants known her name, however, they could have contacted the PHSO about the matter.
Or consider the case of Dr Jane McLennan, a genuine psychiatrist:https://www.mpts-uk.org/-/media/mpts-rod-files/dr-jane-mclennan-19-march-2019.pdf *
who was erased from the medical register earlier this year. She included ‘detail in her report that was not true, knowing it not to be true‘.
Although the number of doctors we should be wary of is small, it is not insignificant (of the 35 MPTS decisions I counted in July, 8 involved erasure). Greater transparency would in my view help deter a ‘bad apple’ from seeking employment with the PHSO, and would alert the public sooner to anything untoward that they should know about.
(7) In light of the above, I would invite the Tribunal to allow the appeal.
DATED this 11th day of August 2019
I added the following AFTER the Tribunal decided my appeal (not in original):
- The MPTS delete determinations from its website after a year. Dr McLennan, however, appealed the decision (without success): https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csih12.pdf?sfvrsn=0
“95. It was accepted before the Tribunal that the statements attributed to Mr A were never said by him, and indeed that he stated the opposite. The effect of this paragraph was to cause the reader to regard Mr A as lacking credibility, or at least as being unreliable. This laid the foundation for other observations in the report which were more or less critical of Mr A, and were generally unfavourable (see the submissions for the Respondents at paragraph  above). As your Lordship in the chair observes at paragraph  above, there is no reasonable explanation, other than dishonesty, in the appellant stating that Mr A had said he had no problems prior to working with the CICA when not only had he not said that but also he had said the opposite.”
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